Have you received faulty work?
We explain what a work and services contract is in this article.
In principle, if a commissioned work is defective, you as the customer can file a guarantee claim against the contractor.
In what cases is work deemed defective?
Work is deemed defective if, on acceptance, it does not conform to the contractual stipulations. A deviation may exist if the work is either faulty according to the so-called accepted standards (e.g. leaky roof), or a guaranteed or requisite feature is missing (e.g. the swimming pool is shorter than agreed). “According to accepted standards” corresponds to “what can usually be expected”.
What can I do if the work is defective?
In the case of minor defects, you can request a decrease of the compensation charged or a rectification of the work if this does not cause the contractor to incur excessive costs. If the defect is the fault of the contractor, then you can also claim compensation for damages.
What can I do about larger defects?
A major defect is deemed to exist if the work deviates from the contract or accepted standards to such an extent that it is unusable for the customer and acceptance is not feasible. In such a case, the customer can withdraw from the contract (so-called rescinding). If the contractor is also at fault for the defect, then compensation for damages can be claimed (damages that occur to another object because of the faulty work, e.g. a car was damaged by a falling beam from the garage built by the contractor).
When is acceptance no longer feasible?
This is determined based on a balancing of interests. If the work cannot be used or the defect cannot be remedied, then acceptance is generally deemed to be unreasonable (for example: Two oil tanks were delivered and welded together on site, filled with water for testing, and then burst so that they can no longer be used).
How can I rescind from the contract if the work is fixed to the ground?
In this case, it is not possible to rescind on the work and services contract, but rather to reduce the compensation paid or have the work rectified.
What should I do to rescind on the work and services contract?
Rescinding on a contract must be declared to the contractor. In general, the work must have already been delivered and there must be a defect. As soon as the work has been checked (as soon as possible after receipt) and the defect has been discovered, you must report it to the contractor. To have evidence, this should be done in writing. As a rule, you should report discernible defects within two to three days after the work has been handed over. In the case of a hidden defect, you should report it as soon as it is discovered.
What happens if I report a defect too late?
In this case, you can no longer rescind on the contract. Overall, you can assert defect rights for movable work within two years (including rescinding), and for immovable work (real estate) within five years. It is important that you check the work as soon as you have accepted it. The two- or five-year period applies to defects that were not discovered upon initial review. If you have discovered a defect, you cannot wait to report it within the term, but rather must do so immediately. In the case of intentional fraud, the term is ten years.
How do I have to word the notice of a defect?
The reporting of a defect is not required to take a particular form. We have drawn up a template to help you.