The customer is obliged to pay for additional work that can not be postponed

30 October 2018, Tuesday

The customer is obliged to pay for additional works that are not provided by the contract. Condition: the work is urgent, for example, there will be a threat to the life and security of people. The conclusion follows from the Supreme court decision.

The customer and the counterparty signed a contract under the Law No. 44-FZ for gasification of the territory. The opportunity to increase the cost within 10 percent of the contract is not prescribed. In the course of the works the customer reported that the draft did not provide the number of projects under construction. The counterparty was offered to perform additional work without increasing the cost of the contract. The contractor performed the work, the customer accepted them, but refused to pay.

The contractor appealed to the court. The arbitration court sided with the counterparty. Reason: the work was urgent, if the plaintiff did not fulfill them, there would be a threat to life and health. If there is a need to carry out additional work, the contractor is obliged to notify the customer. If the customer does not agree to pay for additional work, he has the right to terminate the contract. This is stated in paragraph 5 of article 709 of the civil code.

In this case, the counterparty fulfilled the obligation and warned the customer. The parties agreed and signed a local estimate calculation and terms of reference for additional work. By signing the documents, the customer acknowledged that the work must be done immediately. It does not follow from the terms of reference that the counterparty is obliged to perform the work free of charge. The actions of the contractor will meet the needs of the customer and prevent possible damage.

The arbitration court ordered to pay for additional work. The customer appealed the decision, but lost. It went to the Supreme court. The Supreme judicial body upheld the decision of the arbitration.

Document: Supreme court ruling from 19.09.2018 No. 304-ЭС18-13550