Real estate perspective: After the completion and settlement of the construction project, can the contractor claim compensation from the contractor for the pre-settlement matters?
Published:
2022-02-16
1. case introduction Changzhou Branch of Company A signed a construction contract with Company B, agreeing that Party A will contract Workshop B to 2. the third-class project. After the contract was signed, A fulfilled its contractual obligations. On October 20, 2018, the two parties signed a completion settlement payment agreement on the payment of the project. On January 18, 2019, the two parties signed the project statement, but B did not pay the project as agreed. Party B believes that there is double calculation of Party A's project funds. The scope of the construction contract signed by both parties includes the pile foundation project of the house. The plaintiff calculated the foundation pile foundation 750000 yuan in addition to the contract price. The doors and windows of workshop 2. 3 were not constructed according to the design requirements, specifically, the wall thickness, glass thickness and hollow distance of the profiles did not meet the design standards. Party B has paid more than 880 million yuan for the project. Party A only issued an invoice of 1500000 yuan. Party B has the right to refuse to pay the project. If A fails to issue the invoice in time and causes the defendant to deduct the loss, it shall be deducted from the project fund....... 2. focus of controversy After the completion and settlement of the construction project, can the contractor make another claim against the contractor? 3. court decision When the parties to a construction contract carry out the completion and settlement of the project, they shall, in accordance with the contract, examine whether the other party's performance of the contract conforms to the agreement and make corresponding claims. Claims and amounts shall be approved and processed together with the settlement. The project settlement statement formed by the parties on January 18, 2019 is the final basis for the settlement of the project price. The defendant did not put forward the relevant claim or statement of reservation at the time of settlement, and after the completion of the project settlement, the claim of the claim of the other party's previous breach of contract was not supported by the Court in accordance with the law....... 4. Lawyer's View Our lawyers believe that at the time of settlement of the project, if the contractor does not make a relevant claim or declare that it reserves the right to claim, the contractor has no right to claim for the matters before settlement after the completion of the settlement. Specific analysis is as follows: First, Article 14 of the Interim Measures for the Settlement of Construction Project Prices stipulates: "After the completion of the project, the two parties shall settle the completion of the project in accordance with the agreed contract price and the contents of the contract price adjustment and the claims". Article 9.13.6 of the Code for Valuation of Bill of Quantities of Construction Projects stipulates: "After the contracting parties have handled the completion settlement in accordance with the contract, it shall be deemed that the contractor has no right to file any claims that occurred before the completion settlement. The contractor shall submit the final settlement application only for the claim after the completion settlement, and the period for filing the claim shall be terminated when the contracting parties terminate the final settlement". Article 14 of the Interim Measures for the Settlement of Construction Prices stipulates that the completion settlement is based on the contract price and the contents of the adjustment of the contract price and the claims. Although Article 9.13.6 of the Code for Valuation of Bill of Quantities of Construction Projects only stipulates that the contractor has no right to claim any claim before the completion settlement to the employer after settlement, the employer, as the other party of the contract, is protected equally according to the stipulation of the the People's Republic of China Civil Code that "all civil subjects have equal legal status in civil activities, equal protection is mainly reflected in two aspects: (1) the unity of civil liability, that is, after civil rights are infringed, the right holders enjoy equal protection methods and liability relief methods, (II) the equality of civil subject relief procedures, therefore, after the rights are infringed, the contractor and the contractor enjoy equal protection methods and liability relief methods". Therefore, the contractor also has no right to claim against the contractor for matters that occurred before the completion of the settlement. Secondly, Article 140 of the the People's Republic of China Civil Code stipulates: "The perpetrator may express or implicitly express his intention. Silence may be regarded as an expression of intention only if there are legal provisions, agreement between the parties or in accordance with the trading habits between the parties". Implicature refers to the fact that the perpetrator does not express his or her intentions through positive behavior, such as written or oral behavior, but rather through behavior. The settlement agreement has the legal attribute of clearing the debt and debt relationship between the contracting parties, and the implied act of the contractor signing the settlement agreement can be presumed that the contractor's rights not declared in the agreement constitute an implied waiver. Therefore, if the contractor does not make a relevant claim or state that it reserves the right to claim at the time of settlement, the contractor shall not have the right to claim for matters prior to the completion of the settlement. Advice from 5. lawyers The construction project settlement agreement has the legal attribute of clearing the creditor's rights and debts of both parties, therefore, the contractor and the contractor should deal with the claim-related matters together or retain the right to claim in the settlement agreement, so as to avoid the occurrence of the event of not being able to claim against the other party after signing the settlement agreement. 6. related cases (I) Suqian Intermediate People's Court of Jiangsu Province-(2020) Su 13 Min Zhong No. 1169 The court of second instance held that when the parties to the construction contract carry out the completion and settlement of the project, they shall, in accordance with the contract, examine whether the other party's performance of the contract conforms to the agreement and make corresponding claims. Claims and amounts shall be approved and processed together with the settlement. Therefore, except for items that are declared reserved due to disputes at the time of settlement, the settlement opinions of the completion settlement report after examination and confirmation by the parties are the final basis for the settlement of the project price by the parties to the contract. If a party does not make a relevant claim or declare a reservation at the time of settlement, the claim shall not be supported in accordance with the law after the completion of the settlement of the project price and the claim shall be made on the basis of the previous breach of contract by the other party. In this case, Jiangsu Construction Engineering delivered the project involved in the case to Guangzhong Company on January 3, 2014. Guangzhong Company and Jiangsu Construction Engineering settled and reached an agreement on February 9, 2015 on the price of part of the project completed by Jiangsu Construction Engineering, and determined that the project settlement price was 158991815.5 yuan. Before the two parties reached an agreement on the settlement, the fact that the project was overdue for completion had been produced, and the liability for breach of contract due to the overdue completion of Jiangsu Construction Engineering had also been determined, but Guangzhong Company did not reserve the right to make relevant claims for the breach of contract by Jiangsu Construction Engineering in the construction process when confirming the settlement approval report. Guangzhong company in the project price settlement 2 years after the settlement of the project price and the existence of overdue completion of the breach of contract before Jiangsu construction, the request is not supported in accordance with the law. (II) People's Court of Wuping County, Fujian Province-(2017) No. 1602 Minchu, Min 0824 The court held that: ...... the parties to the construction contract shall, when settling the construction of the project, examine whether the performance of the contract by the other party is in accordance with the contract and make corresponding claims. Claims and amounts shall be approved and processed together with the settlement. Therefore, except for items that are disputed at the time of settlement and declared to be reserved, the settlement opinions of the completion settlement report after examination and confirmation by the parties are the final basis for the settlement of the project price by the parties to the contract. When a party makes a settlement, it does not make a relevant claim or declare a reservation, and after completing the settlement of the project price, it makes a claim based on the previous breach of contract by the other party, which is not supported by law.
1. case introduction
Changzhou Branch of Company A signed a construction contract with Company B, agreeing that Party A will contract Workshop B to 2. the third-class project. After the contract was signed, A fulfilled its contractual obligations. On October 20, 2018, the two parties signed a completion settlement payment agreement on the payment of the project. On January 18, 2019, the two parties signed the project statement, but B did not pay the project as agreed. Party B believes that there is double calculation of Party A's project funds. The scope of the construction contract signed by both parties includes the pile foundation project of the house. The plaintiff calculated the foundation pile foundation 750000 yuan in addition to the contract price. The doors and windows of workshop 2. 3 were not constructed according to the design requirements, specifically, the wall thickness, glass thickness and hollow distance of the profiles did not meet the design standards. Party B has paid more than 880 million yuan for the project. Party A only issued an invoice of 1500000 yuan. Party B has the right to refuse to pay the project. If A fails to issue the invoice in time and causes the defendant to deduct the loss, it shall be deducted from the project fund.......
2. focus of controversy
After the completion and settlement of the construction project, can the contractor make another claim against the contractor?
3. court decision
When the parties to a construction contract carry out the completion and settlement of the project, they shall, in accordance with the contract, examine whether the other party's performance of the contract conforms to the agreement and make corresponding claims. Claims and amounts shall be approved and processed together with the settlement. The project settlement statement formed by the parties on January 18, 2019 is the final basis for the settlement of the project price. The defendant did not put forward the relevant claim or statement of reservation at the time of settlement, and after the completion of the project settlement, the claim of the claim of the other party's previous breach of contract was not supported by the Court in accordance with the law.......
4. Lawyer's View
Our lawyers believe that at the time of settlement of the project, if the contractor does not make a relevant claim or declare that it reserves the right to claim, the contractor has no right to claim for the matters before settlement after the completion of the settlement. Specific analysis is as follows:
First, Article 14 of the Interim Measures for the Settlement of Construction Project Prices stipulates: "After the completion of the project, the two parties shall settle the completion of the project in accordance with the agreed contract price and the contents of the contract price adjustment and the claims". Article 9.13.6 of the Code for Valuation of Bill of Quantities of Construction Projects stipulates: "After the contracting parties have handled the completion settlement in accordance with the contract, it shall be deemed that the contractor has no right to file any claims that occurred before the completion settlement. The contractor shall submit the final settlement application only for the claim after the completion settlement, and the period for filing the claim shall be terminated when the contracting parties terminate the final settlement". Article 14 of the Interim Measures for the Settlement of Construction Prices stipulates that the completion settlement is based on the contract price and the contents of the adjustment of the contract price and the claims. Although Article 9.13.6 of the Code for Valuation of Bill of Quantities of Construction Projects only stipulates that the contractor has no right to claim any claim before the completion settlement to the employer after settlement, the employer, as the other party of the contract, is protected equally according to the stipulation of the the People's Republic of China Civil Code that "all civil subjects have equal legal status in civil activities, equal protection is mainly reflected in two aspects: (1) the unity of civil liability, that is, after civil rights are infringed, the right holders enjoy equal protection methods and liability relief methods, (II) the equality of civil subject relief procedures, therefore, after the rights are infringed, the contractor and the contractor enjoy equal protection methods and liability relief methods". Therefore, the contractor also has no right to claim against the contractor for matters that occurred before the completion of the settlement.
Secondly, Article 140 of the the People's Republic of China Civil Code stipulates: "The perpetrator may express or implicitly express his intention. Silence may be regarded as an expression of intention only if there are legal provisions, agreement between the parties or in accordance with the trading habits between the parties". Implicative means that the actor does not express his or her intentions through positive behavior, such as written or oral behavior, but rather through behavior. The settlement agreement has the legal attribute of clearing the debt and debt relationship between the contracting parties, and the implied act of the contractor signing the settlement agreement can be presumed that the contractor's rights not declared in the agreement constitute an implied waiver. Therefore, if the contractor does not make a relevant claim or state that it reserves the right to claim at the time of settlement, the contractor shall not have the right to claim for matters prior to the completion of the settlement.
Advice from 5. lawyers
The construction project settlement agreement has the legal attribute of clearing the creditor's rights and debts of both parties, therefore, the contractor and the contractor should deal with the claim-related matters together or retain the right to claim in the settlement agreement, so as to avoid the occurrence of the event of not being able to claim against the other party after signing the settlement agreement.
6. related cases
(I) Suqian Intermediate People's Court of Jiangsu Province-(2020) Su 13 Min Zhong No. 1169
The court of second instance held that when the parties to the construction contract carry out the completion and settlement of the project, they shall, in accordance with the contract, examine whether the other party's performance of the contract conforms to the agreement and make corresponding claims. Claims and amounts shall be approved and processed together with the settlement. Therefore, except for items that are declared reserved due to disputes at the time of settlement, the settlement opinions of the completion settlement report after examination and confirmation by the parties are the final basis for the settlement of the project price by the parties to the contract. If a party does not make a relevant claim or declare a reservation at the time of settlement, the claim shall not be supported in accordance with the law after the completion of the settlement of the project price and the claim shall be made on the basis of the previous breach of contract by the other party. In this case, Jiangsu Construction Engineering delivered the project involved in the case to Guangzhong Company on January 3, 2014. Guangzhong Company and Jiangsu Construction Engineering settled and reached an agreement on February 9, 2015 on the price of part of the project completed by Jiangsu Construction Engineering, and determined that the project settlement price was 158991815.5 yuan. Before the two parties reached an agreement on the settlement, the fact that the project was overdue for completion had been produced, and the liability for breach of contract due to the overdue completion of Jiangsu Construction Engineering had also been determined, but Guangzhong Company did not reserve the right to make relevant claims for the breach of contract by Jiangsu Construction Engineering in the construction process when confirming the settlement approval report. Guangzhong company in the project price settlement 2 years after the settlement of the project price and the existence of overdue completion of the breach of contract before Jiangsu construction, the request is not supported in accordance with the law.
(II) People's Court of Wuping County, Fujian Province-(2017) No. 1602 Minchu, Min 0824
The court held that: ...... the parties to the construction contract shall, when settling the construction of the project, examine whether the performance of the contract by the other party is in accordance with the contract and make corresponding claims. Claims and amounts shall be approved and processed together with the settlement. Therefore, except for items that are disputed at the time of settlement and declared to be reserved, the settlement opinions of the completion settlement report after examination and confirmation by the parties are the final basis for the settlement of the project price by the parties to the contract. When a party makes a settlement, it does not make a relevant claim or declare a reservation, and after completing the settlement of the project price, it makes a claim based on the previous breach of contract by the other party, which is not supported by law.
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