CHAPTER EIGHT OF THE COMPANY OR SERVICE CONTRACT
SECTION I NATURE AND SCOPE OF THE CONTRACT
- A business or service contract is one whereby a person, as the case may be the contractor or the service provider, undertakes to another person, the client, to carry out a material or intellectual work or to provide a service for a price that the customer obliges himself to pay.
1991, c. 64, a. 2098.
- The contractor or the service provider is free to choose the means of performing the contract and there is no relationship of subordination between him and the client as to its performance.
1991, c. 64, a. 2099.
- The contractor and the service provider are required to act in the best interests of their client, with prudence and diligence. They are also required, depending on the nature of the work to be carried out or the service to be provided, to act in accordance with the uses and rules of their art, and to ensure, where applicable, that the work carried out or the service provided is in accordance with the contract.
When they are held to the result, they can only be released from their responsibility by proving force majeure.
1991, c. 64, a. 2100.
SECTION II RIGHTS AND OBLIGATIONS OF THE PARTIES
- 1. – General provisions applicable to both services and works
- Unless the contract was concluded in consideration of his personal qualities or this is incompatible with the very nature of the contract, the contractor or the service provider may appoint a third party to perform it; it nevertheless retains the direction and responsibility for execution.
1991, c. 64, a. 2101.
- The contractor or the service provider is required, before the conclusion of the contract, to provide the client, insofar as the circumstances allow it, with all useful information relating to the nature of the task he undertakes to perform. perform as well as the goods and time necessary for this purpose.
1991, c. 64, a. 2102.
- The contractor or service provider supplies the goods necessary for the performance of the contract, unless the parties have stipulated that he will only provide his work.
The goods he supplies must be of good quality; he is bound by the same guarantees as the seller for these goods.
There is a sales contract, and not a business or service contract, when the work or service is only an accessory to the value of the goods supplied.
1991, c. 64, a. 2103.
- When the goods are supplied by the customer, the contractor or the service provider is bound to use them with care and to account for this use; if the goods are manifestly unfit for the use for which they are intended or if they are affected by an apparent defect or a hidden defect which he should have known, the entrepreneur or the service provider is bound to immediately inform the customer, failing which he is responsible for the damage that may result from the use of the goods.
1991, c. 64, a. 2104.
- If the goods necessary for the performance of the contract perish by force majeure, their loss is the responsibility of the party providing them.
1991, c. 64, a. 2105.
- The price of the work or service is determined by contract, custom or law, or even according to the value of the work done or the services rendered.
1991, c. 64, a. 2106.
- If, when the contract is concluded, the price of the works or services has been estimated, the contractor or the service provider must justify any increase in the price.
The customer is only liable to pay this increase insofar as it results from works, services or expenses which were not foreseeable by the contractor or the service provider at the time of conclusion of the contract.
1991, c. 64, a. 2107.
- When the price is established on the basis of the value of the work performed, the services rendered or the goods supplied, the contractor or the service provider is required, at the client’s request, to report to him on the condition of the service. progress of work, services already rendered and expenditure already incurred.
1991, c. 64, a. 2108.
- When the contract is fixed price, the customer must pay the agreed price and he cannot claim a reduction in the price by arguing that the work or service required less work or cost less than it required. ‘had been expected.
Likewise, the entrepreneur or the service provider cannot claim an increase in price for a contrary reason.
The fixed price remains the same, although changes have been made to the performance conditions initially provided for, unless the parties have agreed otherwise.
1991, c. 64, a. 2109.
- 2. – Special provisions for works
- – General provisions
- The client is bound to receive the work at the end of the work; this takes place when the work is completed and in working order in accordance with the use for which it is intended.
Acceptance of the work is the act by which the client declares to accept it, with or without reservation.
1991, c. 64, a. 2110.
- The customer is not bound to pay the price before receipt of the work.
During payment, he may withhold from the price, until the repairs or corrections are made to the work, a sum sufficient to satisfy the reservations made as to apparent defects or poor workmanship which existed upon receipt of the work. ‘work.
The customer cannot exercise this right if the entrepreneur provides him with sufficient security to guarantee the performance of his obligations.
1991, c. 64, a. 2111.
- If the parties do not agree on the amount to be retained and the work to be completed, the assessment is made by an expert appointed by the parties or, failing that, the court.
1991, c. 64, a. 2112.
- The customer who accepts without reservation retains, however, his recourse against the contractor in the event of hidden defects or poor workmanship.
1991, c. 64, a. 2113.
- If the work is carried out in successive phases, it may be received in parts; the price relating to each of them is payable at the time of issue and receipt of this part and the payment is deemed to have been so received, unless the sums paid should be considered as simple down payments on the price.
1991, c. 64, a. 2114.
- The contractor is liable for the loss of the work which occurs before its delivery, unless it is due to the fault of the client or the latter is in default to receive the work.
However, if the goods are supplied by the customer, the contractor is not liable for the loss of the work, unless it is due to his fault or some other default on his part. He can only claim the price of his work if the loss of the work results from the inherent defect in the goods supplied or from a defect in the goods that he could not detect, or if the loss is due to the fault of the customer. .
1991, c. 64, a. 2115.
- The limitation period for recourse between the parties does not begin to run until the end of the work, even with regard to those which were the subject of reservations upon acceptance of the work.
1991, c. 64, a. 2116.
- – Real estate works
- At any time during the construction or renovation of a building, the client may, but in such a way as not to interfere with the progress of the works, check their state of progress, the quality of the materials used and that of the work performed. , as well as the statement of expenditure made.
1991, c. 64, a. 2117.
- Unless they cannot escape their responsibility, the contractor, the architect and the engineer who, as the case may be, directed or supervised the work, and the subcontractor for the work he executed, are jointly and severally liable for the loss of the work that occurs within five years of the end of the work, whether the loss results from a defect in the design, construction or execution of the work, or, again , a defect in the soil.
1991, c. 64, a. 2118.
- The architect or engineer will only be released from his responsibility by proving that the defects in the work or in the part he has carried out do not result from an error or a defect in the expert appraisals. or plans he may have provided, or a failure in the direction or supervision of the work.
The contractor will only be released by proving that these defects result from an error or a defect in the expertise or plans of the architect or engineer chosen by the client. The subcontractor will only be released from them by proving that these defects result from the decisions of the contractor or from the expertises or plans of the architect or engineer.
Each person may still be released from his responsibility by proving that these defects result from decisions imposed by the client in the choice of soil or materials, or in the choice of sub-contractors, experts or construction methods.
1991, c. 64, a. 2119.
- The contractor, the architect and the engineer for the work they have directed or supervised and, where applicable, the subcontractor for the work he has performed, are jointly required for one year to guarantee the work against existing defects at the time of reception, or discovered in the year following reception.
1991, c. 64, a. 2120.
- Architects and engineers who do not direct or supervise the work are only liable for the loss resulting from a defect or error in the plans or expertise they have provided.
1991, c. 64, a. 2121.
- During the duration of the work, the contractor may, if the agreement so provides, require down payments on the contract price for the value of the work performed and the materials necessary for carrying out the work; he is required, beforehand, to provide the client with a statement of the sums paid to the sub-contractors, to those who supplied these materials and to other persons who participated in this work, and of the sums that he still owes them to complete the works.
1991, c. 64, a. 2122.
- At the time of payment, the client may retain, from the contract price, a sum sufficient to settle the debts of the workers, as well as those of other persons who can assert a legal hypothec on the building work and who to him. have terminated their contract with the contractor, for work done or materials or services provided after such termination.
This deduction is valid as long as the entrepreneur has not given the customer a receipt for these claims.
He cannot exercise this right if the entrepreneur provides him with sufficient security to secure these claims.
1991, c. 64, a. 2123.
- For the application of the provisions of this chapter, a real estate developer who sells, even after its completion, a work that he has built or has had built is considered to be a contractor.
1991, c. 64, a. 2124.
SECTION III TERMINATION OF THE CONTRACT
- The customer may unilaterally terminate the contract, even though the work or the service has already been undertaken.
1991, c. 64, a. 2125.
- The contractor or the service provider may unilaterally terminate the contract only for a serious reason and, even then, he may not do so out of time; otherwise, he is bound to compensate the damage caused to the customer by this termination.
He is obligated, when terminating the contract, to do whatever is immediately necessary to prevent a loss.
1991, c. 64, a. 2126.
- The death of the client only terminates the contract if this makes performance of the contract impossible or unnecessary.
1991, c. 64, a. 2127.
- The death or incapacity of the contractor or the service provider does not terminate the contract, unless it was concluded in consideration of his personal qualities or it cannot be continued in such a manner. adequate by the successor in its activities, in which case the customer may terminate the contract.
1991, c. 64, a. 2128.
- The customer is obliged, upon termination of the contract, to pay the contractor or the service provider, in proportion to the agreed price, the current costs and expenses, the value of the work carried out before the end of the contract or before notification of the termination, as well as, where applicable, the value of the goods supplied, when these can be returned to him and he can use them.
The entrepreneur or the service provider is obliged to repay any advances he has received in excess of what he has earned.
In either case, each party is also liable for any other prejudice that the other party may have suffered.
1991, c. 64, a. 2129.