Courts: shortcomings of the inspection report helped the contractor to avoid warranty repairs under the state contract
The parties have signed a contract for the work. The result was accepted and paid for without comments. Later, shortcomings were identified in the work and an inspection report with photos was drawn up. Since the contractor did not eliminate them under warranty, the customer withheld the security, accrued penalties and appealed to the court.
The appeal and cassation supported the contractor:
• the customer did not ask for a forensic examination. Defects were confirmed only by a unilateral inspection act and photographs. The fact that the contractor was invited to the inspection was not proved;
• the act provided general information about the shortcomings. It is not clear from it what defects each object of work had;
• the photos did not reflect the date, time and location of the shooting. It is impossible to determine that the objects in the images were on the warranty maintenance of the contractor.
It should be noted that, as a general rule, courts in such disputes refer to the presumption of the contractor's guilt for the shortcomings of the work within the warranty period. Thus, the 19th Arbitration Court of Appeal and the 18th Arbitration Court of Appeal ordered the contractor to eliminate defects under the warranty, since he did not prove that they arose through no fault of his, and did not ask the court to conduct an examination.
Document: Resolution of the Arbitration Court of the Volga District of 10.10.2022 in case N A55-24475/2021