Six keys to the construction contract

construction work contract

 Basic questions to know about the construction contract

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What is the construction contract?

The construction contract, or work lease, is provided in the article 1544 Civil Code, when you arrange that "In the leasing of works or services, one of the parties undertakes to carry out a work or to provide the other with a service for a certain price. ”

In the doctrine it is usually defined as that in which a person, called contractor or entrepreneur, binds itself to another, called principal or promoter, to obtain a result in exchange for a price, with or without supply of materials.

It is mainly characterized because the purpose of the contract is not the activity carried out by the contractor itself, but the result thereof; namely, the contractor assumes an obligation of result and not of activity, reason why it will not be released with the simple accomplishment of the contracted activity, contrary to what happens in service contracts.

Types of construction contracts

The works lease contracts can present several modalities. to get started, the leased work may consist of a creation, like constructing a building, or in a modification or repair, like the execution of reforms in a house. Also, attending to the time of remuneration, It can be differentiated between a "flat-rate" work lease and a "by measure" work lease..

The first is provided in the article 1593 CC, when you arrange that:

“Ehe architect or contractor who is responsible for a lump sum of the construction of a building or other work in view of a plan agreed with the landowner, cannot ask for a price increase even if the price of wages or materials has been increased; but you can do it when any change has been made in the plan that produces an increase in work, provided that the owner had given his authorization ”

Therefore, it does not admit further alterations unless there is some change that produces an increase in the work unless the owner authorizes it..

The article refers to the second 1592 CC, which states that:

"He who is obliged to do a work by pieces or by measure, can demand that the owner receive it in parts and pay it in proportion. The satisfied party is presumed to have been approved and received.”

Obligations of the parties in the construction contract

Regarding the obligations of the contractor, the fundamental is to carry out the work in accordance with what has been agreed and in the correct way, with the diligence and expertise required in their profession and, if, contributing the materials or conserving the received ones of the owner. In that sense, it should be noted that, in certain cases, faulty compliance is a genuine breach, when the work performed is inappropriate for the intended purpose. Delivery time is also an important element, insofar as the delay in delivery can be understood as non-compliance when the term is an essential element, and in any case the delivery must be made within a reasonable time.

Regarding the obligations of the owner, they are fundamentally the duty of cooperation, the reception of the work and payment of the price in the agreed amount and time. The duty of cooperation implies the need for the principal to facilitate, in what is in your sphere of availability, that the contractor can carry out the work. It may include the duty of delivery of materials if so agreed. The owner must fulfill the general duty in good faith contained in the article 1258 Civil Code, when you arrange that "Contracts are perfected by mere consent, y desde entonces obligan, no sólo al cumplimiento de lo expresamente pactado, sino también a todas las consecuencias que, según su naturaleza, sean conformes a la buena fe, al uso y a la ley. For his part, the reception duty will apply when the work is finished, by application of the provisions of the article 1176 Civil Code. The reception of the work, also, will give rise to the obligation to make the payment of the same, in accordance with the provisions of the article 1599 Civil Code, cuando establece que, "If there is no agreement or custom to the contrary, the price of the work must be paid upon delivery. ”

Construction contract development

In the execution of the work contract, as we have seen, the contractor is obliged to execute the work with the diligence and expertise required in his profession or dedication and, where appropriate, to keep the materials received from the owner or the foreign thing on which he must operate, and the principal or owner of the work to pay the price and, if so agreed, to supply the materials, in whole or in part. There are some issues worth noting:

As for the domain of the things object of the contract, keep in mind that, due to the binding nature of the contract, the acquisition occurs with the tradition of the thing object of the work itself, except in the cases in which the principal acquires what is incorporated into the soil or movable property of his property.

As for the term, if the contract does not expressly fix the term of execution of the work, the article will have to be applied 1128 Civil Code, cuando establece que "If the obligation does not indicate a term, but from its nature and circumstances it can be deduced that it wanted to grant the debtor, the Courts will fix the duration of that one. ”

Moreover, the contractor must guard the thing that is delivered to him to carry out the contracted work on it, to which the deposit regulations will apply, and presuming that the deterioration suffered by the thing is a consequence of the performance of the work, unless proven otherwise. On these extremes, Article 1590 specifies that the contractor is only responsible for the loss due to fault or intent, and not of the supposed fortuitous case. Regarding the loss of materials, Article 1589 “If the one that contracted the work was forced to put the material, must suffer loss in the event of destruction of the work before it is delivered, except if there had been late payment in receiving it. ”

Last, the contract is completed with the delivery, reception and approval of the work, and the corresponding payment of the price. Overall, jurisprudence has declared that acceptance upon receiving the work, no manifestation at that time of disagreement with it, means that it has been carried out to full satisfaction.

Guarantees in favor of the developer and in favor of the contractor

Regarding the guarantees of the parties against the breach of the contrary, Article 1591 of the Civil Code, in favor of the promoter of the work, that "The contractor of a building that is ruined by construction defects, be liable for damages if the ruin takes place within ten years, counted from the end of the construction; equal responsibility, and for the same time, will have the architect who directs it, if the ruin is due to vice of the ground or of the direction. If the cause is the contractor's lack of contract conditions, the compensation action will last fifteen years. ” In any case, the content of this provision has been displaced by the content of the articles 17 and following of the Law 38/1999, of 5 November, of Construction Planning.

For his part, and in favor of the contractor, the credits arising from the work contract are privileged in accordance with the provisions of the articles 1922.1, 1923.3º and 1923.5º of the Civil Code. Additionally, Article 1600 of the Civil Code allows the contractor to retain the movable thing in which the work was carried out.

Direct action of subcontractors

Last, We must remember the direct action planned in favor of subcontractors established in the article. 1597 of the Civil Code when it provides that "Those who put their work and materials on a site set up by the contractor, they have no action against the owner of it until the amount that the latter owes to the owner when the claim is made. ”

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