27 February 2020
Building contractor’s liability for defects in the subject of the contract

By a construction works contract, the contractor commits to hand over the facility provided for in the contract performed in accordance with the design and technical know-how, and the investor commits to carry out the actions required by the relevant regulations to prepare the works, especially to hand over the construction site and to deliver the design and to accept the facility and pay the agreed remuneration.

A construction works contract should be stated in writing. The above provision, however, does not contain a nullity clause. Nonetheless, pursuant to Article 74 of the Civil Code (kc), the stipulation of written form without a nullity clause leads, if the stipulated form is not observed, in litigation to witness evidence or evidence in the form of declarations of the parties concerning the performance  of the act being inadmissible. This provision does not apply to cases in which written form is stipulated only in order to produce the specified effects of a legal act.

However, despite the written, document or electronic form prescribed for evidence purposes  not being observed, witness evidence or evidence in the form of testimony of the parties is admissible if both parties consent thereto, if a consumer so demands in a dispute with an entrepreneur or if the fact that the legal act has been performed is substantiated in writing.

Therefore, if you are a consumer, you may claim your rights from the contractor even if you concluded an oral contract only.

The provisions on specific work contracts apply accordingly to the effects of any delay by the contractor in starting the works or completing  the facility or performance of the works by the contractor in a defective  way or contrary to the contract, to implied warranty for defects in the constructed facility, and to the investor’s rights to rescind the contract before the facility is completed. The provisions on implied warranty for defects in sales apply accordingly to implied warranty for defects in a specific work.

Hence, the provisions on sales apply to the subject matter of the construction works contract.

Given the above, the consumer has the right to request the following from the contractor: price reduction, exchange of a defective item for a defect-free item, removal of a defect, disassembly and reassembly of an item, and remedy of any damage suffered.

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