Construction Defect Claims: The Demand Stage
After a construction flaw is discovered, a dispute reaches the court only when the demand stage has been passed correctly, and it is precisely at this stage that most claims are either lost or gain force. The Civil Code sets several clear rules for this field: the manner of accepting the work, the consequences of accepting with knowledge of a defect, the contractor's duty to warn, the consequences of intentional concealment of a defect, and the limitation periods. Each of these rules determines what the customer may and may not demand, so the preparation of a demand must be fitted to this framework of the law with precision.
Acceptance of the Work and Its Effects
The first question that decides everything in a defect claim is acceptance. Under Article 649 of the Civil Code, where under the contract or from the character of the completed work its transfer is necessary, the customer must accept the completed work. Upon acceptance the customer is obliged to pay the remuneration. The work is deemed accepted if the customer does not accept the completed work within the period established by the contractor. This norm creates mutual discipline: the customer has the right and duty to accept, while the contractor has the right to have the work handed over within the established period and to receive the remuneration.
What Happens If Defective Work Is Accepted Without a Demand
The second rule is the strictest, and it is here that part of the disputes dies. Under Article 652 of the Civil Code, where the defect of the product is known to the customer and the customer nevertheless accepts it without declaring a demand, no rights of claim arise for the customer because of this defect. This means that knowledge of a flaw requires an immediate declaration of a demand: silent acceptance of a known defect kills the claim with respect to that defect. The practical conclusion is simple: every remark is fixed in writing in the acceptance act, and the dispute over flaws not listed continues later.
The Contractor's Duty to Warn
At the demand stage the question often arises who answers for a flaw whose cause lies in the customer's own conduct. Article 647 of the Civil Code obliges the contractor to warn the customer in good time that the material received from the customer is of poor quality and unusable, that following the customer's instructions the work will be unstable or unusable, or that another circumstance independent of the contractor threatens the durability and fitness of the work. If the customer, despite the timely warning, does not replace the material, does not change the instruction or does not remove the dangerous circumstance, the contractor may refuse the contract and demand compensation for the damage thereby inflicted. Documentation of the warning is therefore armour for both parties: it establishes who had the knowledge and who remained inactive.
A separate protection is directed against the contractor's bad faith. Under Article 654 of the Civil Code, where the contractor intentionally conceals a defect, the contractor cannot rely on an agreement which excludes or limits the customer's rights because of a defect of the product. This means that a liability-limiting clause written into the contract does not operate in the case of an intentionally concealed flaw: the customer's claim remains intact. In a demand it is therefore important to describe the character of the flaw and the possible forms of its concealment.
Limitation Periods and Partial Acceptance
The regime of time is decisive in defect claims. Under Article 655 of the Civil Code, a claim because of a defect of performance may be submitted by the customer within one year, and a claim concerning a structure within five years from the day of acceptance of the completed work. The start of the period is also defined: under Article 656 of the Civil Code, where under the contract the work is accepted in parts, the limitation period for a claim because of a defect begins from the day of complete acceptance of the work. The strategic conclusion: staged acceptance does not restart the period at each stage, the count begins with complete acceptance, and it is precisely this moment that must be fixed in the calendar of the demand.
Frequently Asked Questions
Below we answer the questions most frequently asked on this topic.
When is work deemed accepted?
Where transfer is necessary under the contract or the character of the work, the customer must accept the completed work, and it is deemed accepted if the customer does not accept it within the period established by the contractor.
What happens if I accept defective work without a demand?
Where the defect is known and the customer accepts the work without declaring a demand, no rights of claim arise because of that defect. Known flaws must be recorded immediately upon acceptance.
Who bears the duty to warn?
The contractor must timely warn of poor-quality material, dangerous instructions or other circumstances threatening the work. After the warning, the customer's inaction gives the contractor the right to refuse the contract and claim damages.
Can liability be limited by the contract?
Generally yes, but where the contractor intentionally conceals a defect, the contractor cannot rely on such an agreement: the customer's rights remain intact for an intentionally concealed flaw.
How We Help on Legal.ge
Our team guides construction defect claims from the demand stage onward: we assemble acceptance acts and remarks, assess the character of the flaw and its connection with the contractor's warnings, establish limitation periods under the one-year and five-year regimes, and prepare the demand so that its foundations reach the court intact. Contact our specialists so that a defect dispute is correctly assembled at this decisive stage of the process.