Protocol of delivery and acceptance of the work as a material condition for the right to payment of the price - a proposal for a change in decision-making practice
Abstract
In my article, I argue for a change in the Supreme Court's decision-making practice with regard to the handover protocol and the acceptance of the work. In the introduction, I summarise the Supreme Court's case law and define the legal nature of the handover protocol.
In the next section, I argue that the Supreme Court's blanket conclusion that if the parties to a contract for work agree on a protocol for handing over and accepting the work, the work cannot be handed over and accepted in any other way is incompatible with the provisions of Articles 564, 582 and 1758 of the Civil Code. I submit that, depending on the circumstances of each case, it is necessary to consider whether, by actually handing over and accepting the work without a protocol, the parties have manifested an intention to waive the contractual requirement of a protocol for handing over and accepting the work.
I then turn to the application of the fairness corrective to cases where there has been a protocol handover and acceptance of the work. I argue that where the contractor has completed the work and invited the client to take over the work, but the client has not taken over the work within a reasonable time, even though he had no contractual or statutory reason for doing so, the client cannot claim that the work was not carried out on the basis that the work was not taken over by protocol.
The contractor can therefore claim payment of the price of the work and does not have to initiate proceedings to impose the obligation to take over the work or to replace the client's declaration of intent. I have justified this result of the application of the law on the basis of the principle of good faith, the rule of avoidance of conditions precedent and the supplementary interpretation of the works contract.
In the last part of the paper, I analysed the consistency of the Supreme Court's decision-making practice with the provisions of Section 1963 et seq. of the Civil Code. I argued that these provisions, which aim to protect the creditor of the monetary claim (the contractor), limit the contractual freedom of the parties and, in principle, prohibit the period between the delivery of the object of performance, the conformity of which is to be checked, and the beginning of the due date of the monetary claim to be more than 90 days.
In particular, I explained that Section 1963(2) of the Civil Code applies not only to the rules governing the due date of a monetary claim, but also to the rules governing its creation. Therefore, I came to the conclusion that the provision of Sections 1963 et seq. of the Civil Code is contradicted by the Supreme Court's case law, according to which the client can avoid default in payment of the price of the work by unreasonably refusing to accept the work, and that the contractor must seek to have the work accepted by the court or to replace the client's declaration of intent to default in payment of the price of the work.