Warranty obligations under the contract: how to register and how to ensure

From this article you will learn:

Why is it mandatory to write down warranty obligations under a contract when participating in a competition?
How long are the warranties for?
What ensures warranty obligations under the contract?
How to return collateral upon the occurrence of warranty obligations under a contract

When a buyer purchases a product, the seller issues him a warranty card. Thus, the store agrees to be responsible if the item turns out to be defective. Now, if a washing machine breaks down, the buyer can demand either a refund or free repairs. Warranty obligations under a contract in public procurement are fulfilled in the same way as the law on the protection of consumer rights.

What are contractual warranties?

Contracts concluded within the framework of the Federal Law “On the contract system in the field of procurement of goods, works, and services to meet state and municipal needs” must be insured as reliably as possible against poor quality work of performers. That is why the warranty period is a common practice in such transactions.

Warranty obligations (GO) are an agreement with the contractor that he undertakes to eliminate defects that appear after the end of the contract free of charge.

The minimum validity period of a GO is one year. They come into force at the moment when all the work included in the contract is completed.

The dishonesty of individual performers may cause civil defense to be abandoned, delayed execution, or poor quality. However, the customer has the opportunity to resist such actions due to the presence of a bank guarantee for the guarantee obligations under the contract. When concluding the contract, the bank vouched for the contractor, from which the injured party has the right to demand compensation.

The interests of the customer are protected by a bank guarantee (BG). Consequently, he can independently carry out repair work and compensate for the costs through payments for it. Even if the contractor’s activities cease, his GO will remain in force.

Federal Law No. 44 of 04/05/2013 does not regulate the description of warranty obligations in contracts, as well as the requirements for them. In Part 6 Art. 34 44-FZ mentions how important it is to strictly comply with them. Information about the distinctive features of different types of quality guarantees - for services, work or goods - can be found in Part 2 of the Civil Code of the Russian Federation.

Warranty period after repair

If a product under warranty breaks down, the date of delivery for repair and return receipt is recorded. The time that the buyer did not use the product due to its being under repair is deducted from the warranty period. For example, if the warranty period is 12 months, six months after purchase the product breaks down and ends up in a service workshop, where it stays for 2 months, then, upon completion of the repair, the warranty period is extended for the duration of the repair.

As for durable goods (their list is established by the Government of the Russian Federation), the seller, at the consumer’s request, provides a similar product for free use during repairs. Delivery is made within three days at the expense of the seller.

The customer of the service has the right to make demands to eliminate violations if they turn out to be covered by warranty. In the absence of a guarantee - for 2 years.

How to write warranty obligations in a contract

According to Part 6 of Art. 34 44-FZ, each contract must contain GO. Liability for failure to fulfill warranty obligations under contract 44-FZ is also provided for in this article. However, this regulatory act does not specify the rules for describing civil defense. The establishment and application of warranty obligations under a contract are regulated by the Civil Code. In Art. 470 of the Civil Code of the Russian Federation stipulates the conditions for guaranteeing the quality of goods transferred to the buyer by the seller in Art. 722 of the Civil Code of the Russian Federation - for work performed, in Art. 755 of the Civil Code of the Russian Federation - for construction work.

44-FZ also establishes warranty periods, the duration of which depends on the specifics of the goods, services or work provided: from two years for vehicles, from six months for household appliances, at least five years for construction projects.

Buyer's rights during the warranty period

note

If the warranty repair period is not specified, the breakdown must be repaired immediately or as soon as possible. The maximum repair period for a warranty product is 45 days. However, it is worth considering that the time frame for free troubleshooting varies for different products.

The buyer has the right to receive the cost of the product, free guaranteed repair, replacement with the same or similar model of the product, and a proportionate reduction in price.

The obligation to answer for warranty obligations rests with the seller, manufacturer or importing company that imports products into the country.

The rights and obligations of suppliers of goods covered by warranty service are enshrined in Art. 5 ZPP.

Warranty obligations apply to goods purchased in the Russian Federation.

How are warranty obligations established under contract 44-FZ?

Article 469 of the Civil Code of the Russian Federation indicates that all supplied goods must meet the conditions specified in the contract. According to Art. 470 of the Civil Code of the Russian Federation, products must comply with them within a certain period of time, on the basis of which warranty obligations under the state contract are established.

A guarantee with the same validity period (unless otherwise stated in the contract) is provided not only for the product itself, but also for all its components. GO begins at the moment when the products are handed over to the customer. The duration must be specified in the product warranty sample. This period may be interrupted for a certain amount of time if the customer proves that during this period he could not use the product. In accordance with paragraph 5 of Art. 477 of the Civil Code of the Russian Federation, the supplier’s liability occurs when defects appear either before acceptance of the goods, or for reasons that arose before the day of acceptance.

Pay special attention! In the new edition of Part 4 of Art. 33 44-FZ, which entered into force on May 1, 2019, states that the customer determines the conditions of civil defense if necessary.

According to this article, the concept of “warranty obligations”, in addition to direct quality assurance, includes requirements for its:

duration;
volume;
warranty service.

The article allows for the establishment of civil defense by the customer if necessary. This means that the customer obliges the supplier to provide a quality guarantee for the entire period of use of the goods if they have a warranty period.

Latest edition of clause 1, part 13, art. 34 provides a new requirement. It consists of the customer including in the contract the procedure and terms for providing warranty obligations, if they were established by him in the purchase.

The changes also affected Part 1 of Art. 45. From 01.07.2019, guarantee obligations under a contract can be secured by a bank guarantee along with applications and execution of contracts.

New part 7.1. Article 94 states that if the customer establishes the conditions for securing civil defense, the document on acceptance of goods, services or work performed will be signed only after the contractor provides security for these obligations.

New edition of Part 1 of Art. 96 prescribes the inclusion in the draft contract of notice, documentation, invitation to participate in a closed procurement, information that the customer requires civil defense.

Warranty obligations under a municipal contract, as well as under a state contract, are introduced in accordance with 44-FZ as follows:

The customer does not always install GO, but only when necessary, which is determined by the specifics of the procurement object. Exceptions to this rule, such as the purchase of equipment and machinery, are also specified in this regulation.
If GOs are established, the customer is obliged to demand that they be provided. The procedure for providing security must be reflected in the procurement documentation.
The customer should not sign acceptance certificates in the absence of security provisions.

The concept of a warranty period

The concept is given in Art.
5 of the PZPP and means the consumer’s right to correct defects in the product he purchased if they were discovered within a predetermined period of time. This period of time is the warranty period - https://potrebexpert.online/5789-sroki-garantiinogo-remonta-tovara-prava-pokupatelya-pri-ih-narushenii

The user can receive free elimination of defects if they occur during the warranty period. It is the manufacturer of the goods, not the trade workers, who is charged with correcting the defect. The warranty period starts from the date of purchase (Article 19 of the Labor Code).

If the date of sale is not fixed, the warranty period is counted from the date of manufacture indicated in the technical passport or similar document from the manufacturer.
If the product is seasonal, the warranty period is counted not from the date of sale, but from the date of the period for which the item was purchased.
If the product is purchased online, the warranty period starts from the delivery date.
If the manufacturer has not established a warranty period, it is assigned by the seller.

Ensuring warranty obligations under contract 44-FZ

To ensure GO, you can use the following methods:

replacement of defective equipment or goods of inadequate quality;
redoing the work performed (services provided) or eliminating shortcomings made during their implementation;
refund for low-quality products or for repairs carried out by the customer himself.

How to specify warranty obligations in a contract? The collateral can be either a bank guarantee or money. The customer chooses, whose decision is fixed in the contract. Providing warranty obligations is specified in the clauses of the contract.

BG must meet the requirements specified in Art. 45 44-FZ. In relation to warranty obligations, they use the rules prescribed in Section 6 of the Civil Code of the Russian Federation.

Pay special attention! When all obligations under the contract are fulfilled, the customer will have to return the security for the performance of the contract to the contractor in full.

If the customer decides to use the contractor’s funds, he will face a fine, accrued daily from the day five working days have passed after signing the protocol.

The security for guarantee obligations is entered into the register of contracts.

Please note that establishing warranty obligations is the right of the customer, which he may not exercise. This condition is recorded in Letter of the Ministry of Finance of the Russian Federation No. 02-02-07/32132 dated 07/02/2014.

When the auction documentation stipulates the need to provide civil defense, the contractor must fulfill this requirement, since otherwise he may be refused to sign the contract.

How to correctly issue a guarantee for the fulfillment of warranty obligations under a contract

A detailed statement of all the terms and conditions of civil defense in the contract allows both the customer and the contractor to feel protected. For this reason, it is necessary to pay attention to the correct design of the BG.

In accordance with Part 4 of Art. 368 of the Civil Code of the Russian Federation, the text of the bank guarantee must include the following information:

date of issue of the BG;
the name of the three parties to the agreement, which are the Guarantor, the Beneficiary and the Principal;
obligations of the Principal that are the subject of a bank guarantee;
conditions under which the customer has the right to demand that the Guarantor provide a guarantee payment;
documentation evidencing the completion of the delivery or work;
the period for which the guarantee is provided;
the amount of security for guarantee obligations under the contract and the payment procedure.

Documents that protect the contractor in the event of controversial situations include a delivery note and a work acceptance certificate. The supporting documents must record the fact that the customer accepted each stage of the work performed or the completed delivery of products without objection.

Before issuing a BG, the credit institution scrupulously checks the Principal. Assessing the likelihood of manufacturing defects or defects in goods is quite difficult. To analyze risks, banks use information about previous completed contracts of a potential client.

The BG is available in two forms - paper and electronic. It must be entered into the register of bank guarantees in the unified procurement system only if it simultaneously ensures the execution of the contract and guarantee obligations.

The original of this document on paper will be required by the customer only when it is not entered into the register, since it was issued only to cover warranty obligations.

Introductory part

1.1. These Regulations regulate the conditions and procedure for implementing the Company’s key tasks when providing services to Clients for the acquisition of Real Estate on the secondary market. The entry into force of this Regulation is not directly conditioned by the requirements of civil legislation and legislation on the protection of consumer rights in force in the Russian Federation. Additional payment for the Guarantee obligations issued by the Company, as well as for the Company’s fulfillment of the obligations provided for in these Regulations, is not charged to Clients.

Conditions for liability under warranty obligations under the contract

For product:
According to Art. 469 of the Civil Code of the Russian Federation, products transferred to the customer must meet the requirements specified in the contract. Article 470 of the Civil Code of the Russian Federation determines the period during which it must maintain proper quality and be suitable for use: during either the period appropriate for goods of this type (Part 1), or the warranty period determined by the customer.
In accordance with Part 5 of Article 477 of the same regulatory document, it is the responsibility of the customer to prove that product defects or the prerequisites for their occurrence existed before its purchase.
For work:
Responsibility for deficiencies in the work performed is prescribed in Art. 721 of the Civil Code of the Russian Federation in a similar way. In the event that the customer can prove the guilt of the contractor, the latter will be responsible for poor quality performance for two years after the acceptance certificate was signed.
For services:
The warranty period is not established for intangible services; for tangible services, it is indicated in the clauses of the contract along with other warranty obligations.

Pay special attention!

The requirements for construction work on civil defense differ from those above.

The constructed object must:

be used without complaints for the period promised by the contractor;
meet technical documentation.

If defects occur, responsibility rests with the contractor if he fails to provide evidence that the cause of their occurrence is natural wear and tear of the object.

Product delivery guarantee

A supply contract presupposes the seller’s obligation to provide the customer with the goods specified in the contract or technical specifications in the proper configuration and quality. The supplier assumes warranty obligations for the goods. He is obliged to ensure the opportunity to use it during the period specified in the government contract. As a rule, this is 1-2 years. The period depends on the type of product supplied and the standard period of its use. For complex technical equipment, such as cars or industrial equipment, the period will be longer.

The warranty begins to apply from the moment the product is delivered to the customer. It may be interrupted for a period when the customer could not use it due to the fault of the seller. If during use the customer discovers a defect and reports this to the supplier, the period is also suspended until the problem is resolved. The supplier's obligations extend to the product itself and all its components. But he is not responsible for defects and damage caused by the customer, for example due to improper use of the product.

The law does not establish strict wording that must be used by the customer in the text of the contract, but as an example, you can use the following sample of a supplier’s guarantee for a product:

Ways to ensure the fulfillment of a warranty contract

You can ensure both the civil defense and the main obligations under the contract using:

providing a bank guarantee,
funds to the customer's account.

The winner of a public procurement has the right to choose the method that is most suitable for him.

Contractors are often interested in whether it is possible to issue two bank guarantees – for the performance of a contract and a civil liability guarantee separately.

In accordance with the law, there are no obstacles to such a decision. In addition, it is not necessary to provide both BGs at the same time. They can be issued:

on the main obligations - before signing the contract;
for warranty - before signing the acceptance certificate.

Definitions

2.1. The following terms with corresponding definitions are used in these Regulations:

2.1.1. Client is an individual who entered into an Agreement with the Company, fulfilled all its terms and became the owner of the Real Estate or its Share specified in the Transaction, the buyer of a new building, with the direct participation of the Company.

2.1.2. Co-owner is an individual who has become the owner of a share in the right of common ownership of the Real Estate along with the Client with the direct participation of the Company.

2.1.3. Company - Limited Liability Company "Flat", represented by director Khabibrakhmanov Ruslan Rinatovich (TIN 1655061824, OGRN 1031621003116) and other organizations and individuals registered in the manner prescribed by law as individual entrepreneurs and carrying out entrepreneurial activities without forming a legal entity, having entered into agreements with Flat LLC agreement to use the FLET trademark.

2.1.4. Agreement – an agreement concluded between the Client and the Company, providing for the provision of services for the Company to search for a Real Estate Property for its acquisition by the Client and/or the provision of legal services to support a transaction related to the Client’s acquisition of a Real Estate Property.

2.1.5. Warranty obligation (Warranty Certificate) is a document stipulating the Company’s obligations to provide free legal support in the event of possible damage to the Client and Co-owners, as well as compensation by the Company to the Client and/or Co-owners of Damage in the cases and amounts provided for in these Regulations, executed on a special form ( Appendix No. 1, 2 to these Regulations).

2.1.6. Real estate is a residential or non-residential premises, a land plot, the right to which is registered in the Unified State Register of Real Estate, acquired on the secondary market by the Client and/or Co-owners with the direct participation of the Company.

2.1.7. Share of a real estate object (Share) – a share in the right of common ownership of the real estate object.

2.1.8. Transaction – a contract for the purchase and sale of a Real Estate Property or another agreement entailing the transfer of ownership of the Real Estate Property to the Client and the Co-Owners.

2.1.9. New building - residential or non-residential premises, subject to transfer to a participant in shared construction - the Buyer of a new building, after receiving permission to put into operation an apartment building and included in the specified apartment building, being built (created) with the involvement of funds from a participant in shared construction in accordance with the Federal Law dated 12/30/2004 No. 214-FZ “On participation in shared construction of apartment buildings and other real estate and on amendments to certain legislative acts of the Russian Federation.”

2.1.10. Damage – property losses of the Client and/or Co-Owners caused by the loss of ownership rights of the Client and/or Co-Owners to the Real Estate as a result of the Transaction being declared invalid based on a court decision that has entered into legal force. The above definitions of terms are adopted solely for the purposes of these Regulations and are subject to application only in these Regulations, Warranty Statement. The above definitions of terms may differ from the definitions of similar terms contained in other documents.

When is the return of warranty obligations under a contract made?

44-FZ does not establish specific deadlines. Customers can choose the rules for returning contract security as a guideline:

within a month from the date of termination of obligations;
within 15 days, subject to procurement among small businesses.

The rules and time for returning guarantee obligations under the contract must be specified in the procurement documentation. Let's consider how real customers can act. In fact, in some purchases, the return conditions are formulated as follows: “The money contributed to ensure warranty obligations will be returned to the contractor within a month from the date of his application to the customer, but not earlier than the warranty period established in clause 9.5 of this agreement expires.” .