The contractor’s liability for faults and/or discrepancies in the work or service

According to the art. 1667 of the Civil Code, the contractor is required to provide the client for the differences and performed work vices .

The interpretation of the rule, therefore, it appears that the warranty exists only in the presence of two preliminary conditions:

l ‘work must be completed and delivered to the customer . Otherwise, in fact, these can only enjoin the contractor to fulfill his obligations or, alternatively, request the termination of the contract.
the developer must NOT have accepted the work in the express way (after verification) or tacit (in case of failure occurs within the terms).

Before analyzing in detail the nature and effects of the guarantee mentioned above, therefore, it is necessary to step back and identify the obligations borne by the contractor.

The contract

The contractor is the person who undertakes, with its own resources and risk , to perform work or service against payment in cash.

The principal obligation of the contractor, then, is to deliver the work (or service), but its content is complex and requires that:

the work is done in full autonomy, with its own materials (if not stated otherwise), without interference by the client;
the work is completed and executed in a workmanlike manner , on the basis of what foreseen in the initial project (or modified to agree with the client);
the contractor assumes the economic risk of the work execution, guaranteeing the buyer from any defects and / or discrepancies that the same present (art. 1667 cc);
in case of destruction or defects of real estate (or potential danger), the contractor guarantees the purchaser or his successors in the next 10 years from completion (to read the article on the liability provided for by art. 1669 cc, click here ).

It is the latter two aspects are the direct consequence of the first two dependents and determine a contractor’s contractual liability (although for many the guarantee ex art. 1669 cc even configure an extra-contractual liability) if the client proves that the ‘work has not been performed in a workmanlike manner.

In this article we will analyze the contractor’s liability for defects of the work performed and discrepancies, focusing on:

the legal nature of the guarantee;
the characteristics of vices and deformity;
the content of the guarantee;
cases of exclusion of the contractor’s fault.

The legal nature of the guarantee

The preliminary identification of this aspect is of considerable importance from a practical point of view, since it determines both the substantial consequences and on that of the case.

The objective doctrine

Part of the Doctrine (Barbero, Greek, Cianflone among the principal) believes that the contractor’s guarantee creates dependent on that a presumption of guilt irrebuttable (assuming no proven otherwise) for not having delivered the work-free of defects and deformities.

This presumption is justified by the rules of contract, the contractor that provides all the means to prevent and remedy the defects or deviations during construction (eg: Art. 1660 cc).

The guarantee in the technical sense

A exceeded doctrinal orientation (Graziani, Barassi), however, believed to be a guarantee “in the technical sense”, the result , which is independent from endeavored diligence by the contractor carrying out the work.

The obligation to compensate the purchaser (and therefore should enjoy broad protection), would consist of a penalty paid by the contractor for not having executed the work in a workmanlike manner and according to the plan.

The warranty as contractual liability

According to the prevailing doctrine, the guarantee which was held the contractor for defects or deformities of the work comes from a “responsibility special ” of the same for non-performance or improper performance of its obligations, pursuant to art. 1176 and 1218 cod. civ.

Therefore, the sanction against the contractor for defects or deformities of the work constitutes a protection (a guarantee, in fact) in favor of the customer for the incorrect execution of the work.

The vices and deformities

In order to operate the guarantee contractor to the client, therefore, it is necessary that the work / service is completed / oe which presents defects and / or deviations that make it different from the design and the “rules of art”.

What are the vices and deformities?

These last consist of opera discrepancies than envisaged in the original contract (or modified in the pipeline ), while the vices comply with the rules for implementing the individual parts of the work or the service, devoid of essential characteristics or built without observing the rules techniques.

The existence of vices and deformities is examined for verification of the work by the customer upon delivery of the same.

If the client does not attempt to check without valid reasons or not communicate their results in the short term, the work is considered accepted.

This operation should not be confused with the test , which consists in a simultaneous or subsequent statement issued by the client, with which these states that the work has been performed in a workmanlike manner and according to the contract.

Upon completion of the audit the client has two options:

accepts unreservedly the work / service, thus exonerating the contractor (who will be entitled to fees) from any liability for all the vices and deformities known or knowable by the same client;
rejects or accepts subject to the work or service, communicate to the contractor the presence of defects or deviations.

Hidden defects

Not always, however the client is able to detect defects and deformities of the work in its review. Some of them are found only with the intervention of professionals.

This is why the legislator has distinguished vices into two categories: recognizable and hidden.

The first are those found by the client with the utmost care, as assessed on the basis of the degree of competence of the same: if he is a professional (architect, engineer, surveyor, etc.) Will have greater opportunity to encounter the vices or opera differences.

The seconds , therefore, are those that the developer did not know or is unable to detect with ordinary diligence (or those intentionally concealed by the manufacturer) and leave unaltered the guarantee borne by the contractor (unless he does not via It has expressly renounced).

What must the client if he refuses the work or accepts subject?

Obviously it can not remain inert, or the contractor may enforce the work’s acceptance irrebuttable (which does not admit evidence to the contrary).

The buyer will have the contractor must inform the vices and deformities of the work within 60 days of discovery , under penalty of forfeiture of the guarantee of art. 1667 cc

The complaint is always required?

No, if the contractor:

recognizes the work defects even after 60 days.
has concealed the defects in this case it is up to the customer to prove that they knew the vices and he silenced them in bad faith.

The content of the guarantee

Analyzed the conditions that determine the liability of the contractor, remain to identify the actions that the customer can take to secure their rights.

It ‘s the art. 1668 cod. civ. to indicate. The buyer may require either that:

the irregularities and / or defects are eliminated in contractor expenses;
the work / service price is decreased in proportion to the defects;
the contract is terminated, if the defects or the differences are such that the work unsuitable for use for which it was designed. In this case the customer is freed from the obligation to pay the agreed price (or is entitled to its return) and must return the work, if you already received;

saving always entitled to compensation, in the event that a declaration of the contractor’s fault.

It ‘worth noting that its responsibility for defects and deformities of the work has contractual nature (unlike that of art. 1669 Civil Code, on which the doctrine does not agree).

This means that, in the event that the seller of the work (or service) is also the builder (contractor), the person entitled to rely on this guarantee against the latter will only be the customer, not the third party purchaser .

For example: if the City of Beta (customer) enters into a contract with the firm Alfa (contractor) for construction of a residential complex in an area of town, just the aforesaid municipality would guarantee holder for any the vices of the work, not the subsequent purchasers of the apartments.

Finally, the last paragraph of art. 1667 Civil Code establishes that the client, the date of delivery of the work / service (or refused to receive it, according to an authoritative doctrine) has two years of time to pursue one of the above three actions, beyond which the law prescribes .

The exclusions of the contractor’s fault

As mentioned above, if the client proves the existence of defects and / or discrepancies, the contractor’s responsibility is presumed rebuttable (until proven otherwise), activating the aforementioned warranty.

What is the evidence to the contrary to be provided by the contractor?

The cases dealt with over the years by the case law have raised cyclically causes of exclusion of liability of the contractor similar.

Among these, surely emerge:

the design vices, from which the vices of the work, for which the contractor has already initially announced its opposition to the buyer;
incorrect instructions of the client or the project manager;
subsequent outcome of testing: the misuse of the work by the client; the unforeseeable circumstances; a vice arising from compliance with the rules of art; etc.

In the first case, the ‘ original manifestation of opposition by the contractor is a fundamental element for the exclusion of liability.

If he in his capacity as a professional, does not dispute immediately to the customer the project’s errors, he is held responsible for not having executed the work in a workmanlike manner.

In the second case, the contractor is considered at fault if it has reported promptly to the customer defects resulting from erroneous instructions of the latter, and these are ordered to have run them anyway.

IN SUMMARY

L ‘ art. 1667 Civil Code stipulates that the contractor is required to provide the client for the differences and executed and delivered him work vices, provided they have not accepted, express or implied .

Upon completion of the audit, therefore, the customer has two options:

accepts unreservedly the work / service, thus exonerating the contractor (who will be entitled to fees) from any liability for all the vices and deformities known or knowable by the client;
rejects or accepts subject to the work or service, the contractor denouncing the presence of defects or flaws within 60 days of discovery , under penalty of forfeiture of the guarantee of art. 1667 cc

The complaint is not required if the contractor:

She recognizes the work defects even after 60 days.
has concealed the defects in this case it is up to the customer to prove that they knew the vices and he silenced them in bad faith.

The client, after denouncing the vices and / or the contractor differences, has two years time from the work delivery to ask either that:

they are eliminated in contractor expenses;
the work / service price is decreased in proportion to the defects;
the contract is terminated, if the defects or the differences are such that the work unsuitable for use for which it was designed.

The contractor, to exclude its liability, must prove the existence of the following causes:

the design defects, vices determinants of the work, for which the contractor had already communicated to the purchaser its opposition .;
incorrect instructions of the client or the project manager;
subsequent outcome of the testing.

Law Office Att. Marco Coscia offers legal advice and assistance to any entity, firm or company has commissioned a work or service or, on the contrary, it has won the contract for the sole purpose of obtaining the protection of the rights claimed under the contract of contract.