Defects and the Right to Supplementary Performance
A defect in a construction object triggers a response mechanism provided by law. Under Article 642, if the product is defective, the customer may demand supplementary performance. The choice, however, belongs to the contractor: at its option it either removes the defect or manufactures a new product. If the contractor manufactures a new product, it may demand from the customer the return of the defective one. This model seeks to cure the defect, first of all, through the efforts of the party that produced it, while leaving the customer the initiative of invoking the mechanism.
For the purposes of supplementary performance the contractor must bear the necessary expenses, including the costs of transport, work and materials. At the same time, the contractor may refuse supplementary performance if it would require disproportionate expenses. The assessment of proportionality depends on the facts of each case, and in litigation it is frequently this very issue — whether the cost of curing the defect stands in reasonable proportion to the result — that decides the dispute.
Self-Removal of the Defect and Reimbursement of Expenses
Often the contractor does not refuse supplementary performance, but the deadline set for it expires without result. In that case Article 643 entitles the customer to remove the defect itself and to demand reimbursement of the expenses incurred. Setting an additional deadline is unnecessary in the cases provided for by other provisions of the Code, so attention must turn to the general rules applied in those situations. The customer may also demand from the contractor an advance for the expenses necessary to remove the defect.
In practical terms this is a significant instrument: the customer is not obliged to finance the correction of poor performance out of its own funds first and only then seek recovery — the law expressly contemplates the possibility of demanding an advance. Correct documentation of the defect, of the notice given and of the expenses needed for the cure determines whether these rights can actually be enforced.
Refusal of the Contract or Reduction of the Price
Where the defect is such that the customer can no longer continue the contract, the customer may refuse the contract under the general rules of the Code. In that case, under Article 644, the contractor is obliged to reimburse the customer for the expenses connected with the contract. Refusal is one of the strictest responses available, and the conditions for its use must be assessed with care before it is declared.
The alternative is presented by Article 645: a customer who neither accepts supplementary performance after the expiry of the period set for it nor refuses the contract may reduce the remuneration by the amount by which the defect reduces the value of the product. Reduction of the price fits the situation where the object remains usable and the customer wishes to keep the result while paying a price that corresponds to what was actually received.
Acceptance of the Work and Limitation Periods
The exercise of defect-related rights is connected with the acceptance procedure. Under Article 649, where handover is required under the contract or follows from the nature of the completed work, the customer must accept the completed work and pay the remuneration immediately upon acceptance; if the customer does not take over the work within the period set by the contractor, the work is deemed accepted. The acceptance record fixes the starting point for subsequent claims.
The limitation periods are defined by Article 655: a claim on account of defective performance may be brought by the customer within one year, while a claim concerning a structure may be brought within five years from the day of acceptance of the completed work. In construction matters the claims usually concern a structure, so the five-year period is the principal horizon of protection against defects.
Frequently Asked Questions
What can the customer do upon discovering a defect?
Demand supplementary performance: at the contractor's option the defect is removed or a new product is manufactured, and where a new product is made the contractor may demand the return of the defective one.
Who finances the removal of the defect?
The necessary expenses of supplementary performance — including transport, work and materials — fall on the contractor; exceptionally, it may refuse where supplementary performance would require disproportionate expenses.
What if the contractor fails to cure the defect in time?
After the deadline expires without result, the customer may remove the defect itself, claim reimbursement of its expenses and also demand an advance for the necessary costs.
How is the remuneration reduced?
By the amount by which the defect reduces the value of the product, where the customer neither accepts supplementary performance after expiry of the period nor refuses the contract.
Within what period may a defect claim be brought?
A claim for defective performance may be brought within one year, and a claim concerning a structure within five years from the day of acceptance of the completed work.
How We Help on Legal.ge
The lawyers of Legal.ge have years of experience in defect-related disputes. We will assess the nature of the defect and the legal options attached to it, prepare the demand for supplementary performance, plan the strategy of refusing the contract or reducing the price, and safeguard the observance of the limitation periods. Contact us on Legal.ge — we will help ensure that the harm caused by the defect is compensated to the fullest extent and that your position is sound at every stage.