The counterparty violated obligations, and the company made a reasoned refusal to accept works or services. After sending the refusal, you need to save the documents that confirm the sending.
Reasoned refusal to accept
The contractor undertakes to perform works or services and transfer the result to the customer. The latter must accept them if the result is satisfactory. But if the contractor has fulfilled his obligations improperly or violated them, the customer draws up a reasoned act to refuse to accept the work or services. In the refusal, the customer must, with reference to the contract, justify which agreements the contractor violated. It is necessary to list all the shortcomings of works or services.
You can send a reasoned refusal by courier. In this case, it is necessary to obtain a signature from the authorized person of the performer. She will confirm the delivery of the document.
Litigation on disputes on refusal of acceptance
Practice knows many examples when the customer could not defend his position.
For example, the court recognized the unilateral act of acceptance of work as valid, since the customer did not have evidence of sending a reasoned refusal, see. From the ruling:
“... the customer did not fulfill his counter obligations under the contract, unreasonably evaded signing the acts of completed work and paying for the completed design work on the basis of the invoices submitted by the plaintiff, despite the fact that the result of the work transferred by the plaintiff remained at the disposal of the customer and had consumer value for him ...
The company did not properly confirm its arguments and did not provide evidence of sending a reasoned refusal to accept work to the contractor indicating specific shortcomings in the work performed or a prepared expert opinion on project documentation. An act with a list of shortcomings, necessary improvements and deadlines for their implementation by the parties was also not drawn up.
Deadline for denial of acceptance
Sometimes contracts contain a period during which the customer must send a refusal. If he does not do this, the contractor will consider that the work has been accepted "by default" and will demand payment. The court may take the side of the contractor ( , ).
Inventory of attachments when sending refusal of acceptance
There are contractors who abuse their duties. They do not specifically create a common department or office that receives documents. Their representatives may not accept the document or sign without deciphering the surname and indicating the position. At the court session, such executors deny the fact that any remarks were sent to them. If the customer refers to a reasoned refusal with a note of receipt, they are not recognized that the signature was executed by their representative.
Sending documents by mail with a description of the attachment will help to avoid the problem. The receipt and list of attachments with a mail mark will be evidence of proper dispatch in court. It is necessary to save not only the inventory, but also the receipt of the Russian Post. Practice knows examples when the inventory itself was not recognized as evidence of proper dispatch ().
If the customer's company has a special service that sends out all correspondence, you need to ask its employees for a copy of the register of mailings and receipts of the Russian Post. You should not be limited to sending a reasoned refusal by e-mail. This method is suitable for working with a conscientious performer. He will quickly receive a reasoned refusal and will be able to quickly correct the shortcomings. However, even in this case, it is better to protect yourself and duplicate the refusal by mail with a description of the attachment and notification. This method will make it possible to prove the timely notification of the contractor about defects if a litigation arises, see, for example,. From the ruling:
“... acceptance of the work performed for compliance with their volume and quality with the requirements set forth in the contract and estimate documentation is carried out by the customer no later than 10 days after receipt complete set documents.
The parties agreed on the following procedure for the delivery of work: after the completion of the work, the contractor notifies the customer in writing of the fact of completion of work in accordance with the terms of reference and no later than the working day after the customer receives the notification, sends him a set of reporting documentation provided for by the contract, and an act of acceptance of work ...
... a reasoned refusal to accept the work is contained in the customer's letter dated ..., which was sent to the contractor by e-mail ... and by mail ..., which is confirmed by the list of attachments. The letter contains a list of facilities where the work has been completed in full, accepted and paid for, and facilities where the work has not been completed.”
The contractor under a civil law contract must perform the work or provide the customer with the services provided for by the agreement. The customer must either accept the work performed and pay for it in full, or point out the shortcomings of the service provided. In the latter case, a claim is made or a reasoned refusal is sent. This provision is provided for in Art. 711 of the Civil Code of the Russian Federation. The result of the negotiations - with the participation of a representative of the contractor and the customer - is the drawing up of a bilateral act, where the parties note the identified shortcomings, and also discuss a reasonable time frame for their elimination.
In the absence of dialogue between the parties to the contractual relationship, the presence of a motivated refusal is a kind of insurance for the customer who has expressed a desire to defend his interests in court. For example, the contractor refused to recognize and correct the defects that the customer identified during the inspection of the work, and requires full payment for his work. Then in without fail a reasoned refusal is drawn up (provided for in Article 783 of the Civil Code of the Russian Federation).
An example from judicial practice, confirming the need to draw up a reasoned refusal, can serve as the determination of the Supreme Arbitration Court of the Russian Federation No. VAS-9441/12 dated July 25, 2012 in case No. A40-125075 / 10-109-1076, where the customer, as part of the trial, presented a reasoned refusal to the contractor with the requirement to eliminate defects in the service provided. A similar approach was used in the decision of the AS CO in case No. A36-4171/2015, where the court protected the rights of the customer by collecting a fine from the contractor for the provision of services that do not meet contractual obligations.
Obligation to draw up a reasoned refusal
Analysis of current regulations civil law allows us to conclude that a reasoned refusal is necessary only in cases where the contractor refuses to take measures to eliminate shortcomings in the work and requires the customer to pay for his services. If this document is not available, then the contractor may conclude that the customer has evaded acceptance of quality work, which is noted in the relevant act. This situation allows the performer, by virtue of Art. 753 of the Civil Code of the Russian Federation to demand payment from the customer within the framework of unilateral legal relations.
Judicial practice in such cases is unequivocal - the court will take the side of the performer. An example is the decision of the Arbitration Court of the Moscow Region dated July 14, 2015 in case No. A40-72527 / 14 on satisfying the requirements of the contractor regarding the recovery from the customer of amounts not paid for the work performed.
A similar approach is observed in the decision of the AS SZO in case No. A56-22772 / 2014, where the court decided to recover sums of money from the customer under the state contract in favor of the contractor, because no claims were sent to the latter, no reasoned refusal was drawn up to sign the acceptance certificate for the work performed. The result of the consideration of the case is the adoption by the court of a decision in favor of the contractor.
Reasoned refusal under the contract is the result of the work of the production and legal departments. A specialist in the field of analysis of contracts and legal acts is not required to know the technical nuances and rules for performing individual work. These actions are performed by specialists in individual fields of knowledge. The information received is sent to lawyers for drawing up references to the terms of the contract and the current regulations. With the participation of a lawyer, control over the sending of the analyzed information about the results of the work performed to the contractor or contractor is carried out.
The presence of a motivated refusal to accept for the customer is a legal way to refuse to pay for low-quality services under the contract and subsequent proof in court of improper performance of work / services by the contractor.
This is confirmed by judicial practice, in particular, the decision of the Arbitration Court of the Moscow Region of December 25, 2014 in case No. А40-96770/14.
Practical advice in drawing up a reasoned refusal
1. The document contains references to contractual obligations violated by the contractor.
A reasoned refusal should have not only references to the list of shortcomings noted in the work of the contractor, but also a legal justification. When drawing up this document, the lawyer indicates the specific clauses of the contract that the contractor violated. Only in this case, the shortcomings indicated in the reasoned refusal will have legal force and protect the customer from the requirements of the contractor to pay for poor-quality work.
When drawing up a contract for the provision of services or performance of work, clear language should be used. Their presence will help to reflect individual defects in the work of the contractor in a reasoned refusal. Judicial practice includes court decisions that protected the contractor from unlawful claims of customers. For example, the Federal Antimonopoly Service of the Moscow Region, in its decision dated December 05, 2012 in case No. A40-51215 / 12-61-421, took the side of the contractor, considering the requirements specified in the reasoned refusal to be unreasonable and illegal, based on the fact that they had an unclear wording.
In case of incompetent drafting of a civil law contract, the customer may have problems substantiating inaccuracies in the work of the contractor. So if the elimination of deficiencies was entrusted to another contractor, and a reasoned refusal in relation to the first contractor was not drawn up, then it will not be possible to recover losses from him. AC SZO followed this path, which, in its decision of September 7, 2015 No. F07-6604 / 2015, when deciding on case No. A56-50856 / 2014, indicated the obligation to pay for the services of the contractor due to the absence of claims to the quality of his work.
2. The refusal must contain specific shortcomings of the work, and not exclusively organizational components.
When drawing up a reasoned refusal, only formal requirements cannot be taken into account, for example, the rules for drawing up an acceptance certificate. If most of the requirements include organizational shortcomings, then during the trial this document may have the status of unmotivated. 2012, AS UA in case No. А71-940/2014, taking the side of the executor, who substantiated the unmotivated nature of the document in question.
3. The refusal is sent to the contractor with the customer retaining the absentee documentation confirming the fact of sending the requirements.
There are many examples when a well-written motivated refusal is not taken into account by the court when resolving the case due to the lack of evidence that it was sent to the contractor. For example, see the decision of the AC SZO in case No. A26-1078 / 2015
In some cases, the contract contains a specific period during which the customer is obliged to provide a reasoned refusal. If such actions have not been committed, then the court, using the example of the decision of the AS SZO in case No. A56-34716 / 2015, may oblige the customer to fully pay for the services provided by the contractor.
You can prove that the notification has been sent by keeping the register of postal items or the postal receipt. The proof of the conscientious approach of the customer in terms of notifying the contractor about the presence of defects in the work is the duplication of sending a reasoned refusal by e-mail. For example, see AS MO in case No. Ф05-15146/2014.
When drawing up a reasoned refusal to accept the result of works / services, legal analysis and correct design of the entire process described above will be a necessary guarantee in order not to pay for poor-quality work performed by the contractor.
Here we actively use such documents as a log book, certificates of examination of hidden works, inspection certificates of various commissions, documents from inspecting supervisory authorities, sometimes even the testimony of witnesses is used. For example, one of our clients was able to prove the fact that the work was done due to the fact that the work had flaws. At one time, the customer discovered flaws in finishing work, indignantly convened a commission, which signed the act of inspection. All shortcomings were listed in detail in this act. The contractor then fixed the deficiencies on site. But the document drawn up by the commission remained. After some time, the customer forgot about this case. After the completion of the finishing, he refused to sign the certificate of completion, arguing that the contractor had not started the actual execution.
Reasoned refusal to accept works or services
Attention
These actions are performed by specialists in individual fields of knowledge. The information received is sent to lawyers for drawing up references to the terms of the contract and current regulations.
With the participation of a lawyer, control over the sending of the analyzed information about the results of the work performed to the contractor or contractor is carried out. The presence of a reasoned refusal to accept for the customer is a legal way to refuse to pay for low-quality services under the contract and subsequent proof in court of improper performance of work / services by the contractor.
This is confirmed by judicial practice, in particular, the decision of the Arbitration Court of the Moscow Region of December 25, 2014 in case No. А40-96770/14. Practical Tips in drawing up a reasoned refusal 1.
The document contains references to contractual obligations violated by the contractor.
The act of refusal to sign the act
Important
According to all the rules, the executed document will in any case be legal, provided that all the data entered into it correspond to reality. Thus, by and large, the refusal to sign is just indirect evidence that the other party does not recognize and does not agree with the facts and circumstances set forth in the act.
In the absence of measures to find a compromise and to defend their interests, the dissenting party may go to court. Who draws up the act The function of drawing up the act of refusing to sign the act is usually assigned to the same people who were involved in writing the original document.
Their signatures will be evidence that the act was provided for review and endorsement by the second party, but that, for some reason, did not want to sign it.
Refusal to sign the certificate of completion
The customer has the right not to accept the work and refuse to sign the certificate of completion if the contractor has violated the deadlines for the performance of work stipulated by the construction contract, and the customer, as a result of such a delay, has lost interest in the execution of the construction contract. In the construction contract, additional grounds for the customer's refusal to sign the certificate of completion can be established.
In this case, additional grounds, in fact, can be any. Refusal to sign the certificate of completion A selection of the most important documents on request Refusal to sign the certificate of completion (legal acts, forms, articles, expert advice and much more).
However, if one of the parties refuses to sign the act of completed work, then a corresponding note is made in the act, and it is signed by the other party unilaterally.
- Record the customer's refusal to sign the certificate of completion. You can do it yourself in any form, for example, make a mark on the act itself.
- Enlist additional evidence: a written notice of the completion of work and the date of their acceptance, evidence of sending the act to the customer.
- Collect all possible evidence of the presence of the contractor at the facility, the performance of certain types of work, and the absence of complaints about the work.
How to write a reasoned refusal to accept work or services
of the Civil Code of the Russian Federation “The delivery of the result of work by the contractor and its acceptance by the customer is formalized by an act signed by both parties. If one of the parties refuses to sign the act, a note is made in it and the act is signed by the other party.
A unilateral act of delivery or acceptance of the result of work can be declared invalid by the court only if the motives for refusing to sign the act are recognized by him as reasonable ”it can be concluded that the provisions of clause 3.8. The contracts fully comply with the law, give rise to appropriate obligations for the Customer to pay for the work, the fact of completion of which is confirmed by the Act signed by the Contractor unilaterally.
Reasoned refusal to sign the certificate of completion
Info
The Federal Antimonopoly Service of the Far East in Resolution dated 03.05.2011 N F03-1529 / 2011 in case N A51-8880 / 2010 found that the contractor, having completed the work stipulated by the transactions, sent to the defendant the acts of work performed in the form No. KS-2, which were received by the latter. However, the customer did not sign these acts, did not present his objections or claims regarding the quality, volume and cost of work, did not motivate his refusal to sign the documents.
Under such circumstances, the court recognized the unilateral acts of work performed as corresponding to the norms of civil law and considered the fact that the contractor had performed work under disputed work contracts established. As a result, the court indicated that the customer had an obligation to pay for them, which he did not fully fulfill).
Motivated refusal to sign the act of services rendered sample
You are trying to at least sign the act, and the customer evades signing the act of completed work. Having lost your patience, you go to court. And here the main question arises - how to prove that the work was actually carried out if the customer does not sign the certificate of completion? It is possible to complicate the situation.
For example, when concluding a contract, you received an advance. And now the customer, under the pretext that the work has not been completed, is filing a counterclaim for the recovery of the unworked advance! In practice, such unscrupulous customers are not uncommon. If you have not built the right strategy, you can be left not only without payment for the work performed, but also in debt.
Any entrepreneur can fall into such a situation.
In the absence of dialogue between the parties to the contractual relationship, the presence of a motivated refusal is a kind of insurance for the customer who has expressed a desire to defend his interests in court. For example, the contractor refused to recognize and correct the defects that the customer identified during the inspection of the work, and requires full payment for his work.
Then a reasoned refusal is mandatory (provided for in Article 783 of the Civil Code of the Russian Federation). An example from judicial practice confirming the need to draw up a reasoned refusal can be the determination of the Supreme Arbitration Court of the Russian Federation No. VAS-9441/12 dated July 25, 2012 in case No. A40-125075 / 10-109-1076, where the customer, as part of the trial, presented a reasoned refusal to the contractor with the requirement to eliminate defects in the service provided.
FULL NAME. contractor) address: from (name or full name of the customer) address: , telephone: , fax: , address Email: Notification of the refusal to sign the act of completed work » » in the course of (name or full name of the customer) acceptance of the work performed under the Contract from » » d. N, the following deviations were revealed (name or full name contractor) on conditions
Agreement dated » » N: , which caused the following shortcomings as a result of the work: . Based on the foregoing and guided by paragraph 2 of Art.
720 Civil Code Russian Federation, declares the refusal (name or full name of the customer) from signing the Act of completed work "" Mr. N. " " G.
Motivated refusal to sign the act of services rendered sample download
Date when the Customer refused to sign KS-2. The consequences that this event can lead to are indicated. o Work completed but not paid for or accepted. As a result, delays in documents, penalties and fines. Actions or results required for the Contractor are indicated. o The customer must carry out the procedure for the delivery / acceptance of work and sign the acts of KS-2 or provide a written reasoned refusal to accept the work. Clear requests or requirements to the Customer are formulated. o The requirement to accept the results of the work performed and sign the KS-2 acts or provide a written justified refusal to accept the work. Indicate to the Customer at that time that the Customer does not have the right to demand excessive documentation! The date of the Customer's response to the requirements or requests of the Contractor is indicated.
o The customer accepts the work and signs the KS-2 acts “the work was accepted on time before. ".
Reasoned refusal to sign the act of services rendered according to sample 44
- compilation date,
- Document Number,
- the locality where the company is registered and its name.
The main part should include:
- who exactly refuses to sign the act (if these are representatives of another organization - its name, positions and full names of employees, if an employee of the enterprise itself - only the position and full name),
- a link to the act that the other party refuses to sign (its number and date of writing), as well as briefly convey the essence of the above document,
- if the opponent gives any explanation for his refusal, they should also be included here (the more this part is described in more detail, the better).
It is necessary to enter into the act data on all people related to its compilation (members of the commission or witnesses), indicating their positions, surnames, names, patronymics.
What is a motivated refusal, for sure, many people know. With this official document, a person communicates his refusal to do certain work or fulfill requirements. A citizen who has received a reasoned refusal from state institutions has the right to go to court to protect his rights.
It is often necessary to justify your refusal if a person refuses to provide certain services, does not want to sign an agreement due to some of its conditions or an act of work performed due to their unsatisfactory quality.
To make a reasoned refusal, it is important to have an initial document and analyze it. In case of disagreement with its points, it is necessary to indicate this in a written refusal, referring to the legislation.
Motivated refusal to hire
According to the law, each employer has the right, at its discretion, to resolve personnel issues related to the selection, distribution and dismissal of personnel. Often, candidates for a particular position have to be turned down. In this case, the employer is obliged to justify his decision by legal acts.
For a denial of employment to be justified, the employer must proceed as follows:
- make sure that the applicant is not a person who is prohibited by law from refusing to hire;
- establish legitimate reasons for refusing a job applicant;
- notify the applicant of the refusal to hire, referring to legal grounds;
- draw up a written reasoned refusal to hire, if the applicant has demanded justification for a negative answer;
- hand over the refusal to the applicant in person or by mail.
Reasoned refusal to sign the certificate of completion
Disagreement to carry out the acceptance of work performed most often occurs when solving construction issues. Upon completion of construction work, the contractor is obliged to provide the customer with an act of acceptance of the work performed. The second has the right not to sign this document, however, his motivated refusal must be justified by legislative acts.
A reasoned refusal to sign an act of completed work may be based on the following points:
- the performer did not complete the work within the agreed time frame, due to which the client's interest in fulfilling the contract was lost. A refusal will be considered justified only if the customer provides confirmation that the result of the work performed, due to the delay in its implementation, has lost its significance and economic benefit for him;
- the contractor is not satisfied with the quality, volume and cost of the work performed. If the reasons for the refusal are based on deficiencies that the customer can eliminate on his own, such a refusal is considered unmotivated;
- after the work was completed, the contractor did not invite the customer to receive them, and also did not submit the documents stipulated by the contract.
If the client provides a reasoned refusal to accept the work, the contractor may submit evidence to the court that the work carried out by him is of high quality, completed in full and within the agreed period. If the court recognizes the refusal as unmotivated, the customer is obliged to accept the finished work and pay the contractor for them in full.
Features of a motivated refusal
Refusal to comply with certain requirements must be properly directed. To do this, it is necessary to transfer the document personally into the hands of the person to whom the refusal was sent, or by mail, and then receive confirmation of the delivery of the documents to the recipient. If this is not done, it is impossible to establish that a reasoned refusal was nevertheless sent.
Often, the contracts between the contractor and the client stipulate the terms for sending a reasoned refusal. If the client does not send him within this period and does not accept the completed work, the contractor has the right to consider that it is accepted "by default". And sign the act of accepting the work unilaterally. In this case, the customer is obliged to pay for the services of the contractor.
