A consumer ordered the construction of a country house from our client, the contractor’s materials. During the work, the consumer expressed dissatisfaction with the quality of the material and the fact that the work was taking too long, after which the consumer decided to abandon the construction and demanded the return of the advance payment, penalties, and a fine for breach of obligations. The contractor returned the advance, but refused to pay penalties and a fine, since the contract does not establish intermediate deadlines for the work, and the customer is entitled to make claims about the quality of the material only upon acceptance of the work.
After receiving the answer, the customer applied to the Sergiev Posad City Court for the recovery of the disputed amounts. The Sergiev Posad City Court, within the framework of case No. 2-6208/2023, by a decision of December 15, 2023, satisfied the customer’s claims, since the contractor violated the intermediate deadlines for the work, fixed in the payment schedule. About one million penalty sanctions were recovered from our client.
Our bureau filed an appeal on behalf of the contractor, in which we drew the court’s attention to the fact that the payment schedule was drawn up to determine the timing of payments by the customer with an indication of approximate dates for the completion of individual works, while the contract provides only the final deadline for the work, which the contractor did not violate. We also pointed out that the customer did not have the right to refuse the contract, since the customer himself violated the deadlines for making advance payments, so that by virtue of the general legal principle “Ne cui dolus suus, per occasionem juris civilis, prosit” (No one should benefit from his malicious behavior, using civil law), the customer could not demand termination of the contract for a reason that was related to the fault of the customer himself with making payments. The fact that the contractor started work without waiting for the advance payments in full should not mean that the contractor agreed that the customer has the right not to comply with the payment schedule. Before the completion of the work, the customer does not have the right to refuse the contract in connection with claims to the materials, since he can make such claims only when accepting the completed work.
Agreeing with the arguments of the appeal, the Moscow Regional Court in appeal ruling No. 33-13743/2024 of April 15, 2024, overturned the decision of the first instance and refused to satisfy the claim in full. The decision of the appellate instance was left unchanged by the First Cassation Court of General Jurisdiction, which in the decision No. 8Г-23745/2024 of September 11, 2024, agreed with our arguments.
