Today in the article we will cover the topic of how the customer can protect himself in case he is not satisfied with the result of work or services.
The first thing we advise you to do is to prepare comments to the acceptance certificate and motivate the rejection of it. We recommend that you instruct the employees who carry out the acceptance and control the work and services that in the presence of defects — it is not allowed to discuss them verbally. We advise you to duplicate your remarks in writing. Written comments can help in court.
How to record the remarks? We advise you to refer to the requirements specified in the contract, if you have agreed on a certain procedure, in this case comments in simple writing may not be accepted by the court. We recommend including quality control rules in the contract and service agreements based on the specifics of the work. Agree on the terms of the inspection, the form of comments, the position of the person who conducts the acceptance, the obligation to invite independent specialists. The courts believe: the customer must check the quality and scope of the service immediately after its provision and immediately record all shortcomings, for example, with the help of photos. (Decree of the Arbitration Court of the Far East of 20.09.2022 in case No. A73-19817/2021)
If the contract is not signed or there is no quality inspection instruction, notify the contractor of the impending inspection. Invite his representative within a reasonable time. It is also recommended to engage a third-party specialist and record all comments in the inspection protocol. Upon completion, draw up a commission act, sign it by the participants, including the third-party specialist, and attach photos and video. If the contractor’s representative refuses to sign the act, make a corresponding note. This act will be able to object to the unilateral acceptance act.
If the contractor is very late with the delivery date, the customer can refuse to sign the acceptance act. But this does not mean that the customer can not pay. He must explain why the result is not valuable to him, for example, because of the impossibility of handing over the object or the temporary nature of the work. (Definitions of the Supreme Court of 20.06.2022 in case No. A56-967/2021, 27.08.2021 in case No. A57-2592/2020)
How can objections to the acceptance certificate be formalized?
Check how and when the contractor sent the act.
If the customer is dissatisfied with the quality of work or services but has received a unilateral acceptance certificate, it is important to be ready to refute it in advance. This should be done promptly, before the contractor files a claim for payment. If you learned about the acceptance certificate only from the claim or lawsuit, it is recommended to check when and how the contractor, according to him, reported the readiness of the object. If the data in these notifications do not coincide with the information in the act of acceptance or there are differences in dates, you can refer to the fact that the contractor has not fulfilled its obligations, and therefore has no right to invoke a unilateral act of acceptance. (Decree of the Court of Arbitration of the WCA of 05.10.2023 in case No. A45-6240/2021)
You can demand an expert examination with reference to disagreements on quality.
If the customer does not provide a justified refusal to sign the acts, he can still object in court regarding the quality, scope and cost of work performed. If you find yourself in such a situation, we recommend that you cite all your reasons in your answer to the lawsuit and refer to the fact that the court cannot ignore the customer’s arguments about the defects of work or services. To confirm the deficiencies can help positions of supervisory authorities, correspondence or out-of-court expert opinions. (Decision of the AC SKO of 31.08.2023 in case No. A32-7970/2022).