| Written by Me Sébastien Fiset , LL.B., B.A.A. |
| Friday, 11 June 2010 07:57 |
CHAPTER VIII
CONTRACT OF ENTERPRISE OR FOR SERVICES
(Last update May 27, 2010)
DIVISION I
NATURE AND SCOPE OF THE CONTRACT
2098. A contract of enterprise or for services is a contract by which a person, the contractor or the provider of services, as the case may be, undertakes to carry out physical or intellectual work for another person, the client or to provide a service, for a price which the client binds himself to pay.
2099. The contractor or the provider of services is free to choose the means of performing the contract and no relationship of subordination exists between the contractor or the provider of services and the client in respect of such performance.
2100. The contractor and the provider of services are bound to act in the best interests of their client, with prudence and diligence. Depending on the nature of the work to be carried out or the service to be provided, they are also bound to act in accordance with usual practice and the rules of art, and, where applicable, to ensure that the work done or service provided is in conformity with the contract.
Where they are bound to produce results, they may not be relieved from liability except by proving superior force.
DIVISION II
RIGHTS AND OBLIGATIONS OF THE PARTIES
§ 1. — General provisions applicable to both services and works
2101. Unless a contract has been entered into specifically in view of his personal qualities or unless the very nature of the contract prevents it, the contractor or the provider of services may employ a third person to perform the contract, but its performance remains under his supervision and responsibility.
2102. Before the contract is entered into, the contractor or the provider of services is bound to provide the client, as far as circumstances permit, with any useful information concerning the nature of the task which he undertakes to perform and the property and time required for that task.
2103. The contractor or the provider of services furnishes the property necessary for the performance of the contract, unless the parties have stipulated that only his work is required.
He shall furnish only property of good quality; he is bound by the same warranties in respect of the property as a seller.
A contract is a contract of sale, and not a contract of enterprise or for services, where the work or service is merely accessory to the value of the property supplied.
2104. Where the property is provided by the client, the contractor or the provider of services is bound to use it with care and to account for its use; where the property is evidently unfit for its intended use or where it has an apparent or latent defect of which the contractor or the provider of services should be aware, he is bound to inform the client immediately, failing which he is liable for any injury which may result from the use of the property.
2105. If the property necessary for the performance of the contract perishes by superior force, the party that furnished it bears the loss.
2106. The price of the work or services is fixed by the contract, by usage or by law or on the basis of the value of the work carried out or the services rendered.
2107. Where the price of the work or services is estimated at the time the contract is entered into, the contractor or the provider of the services shall give the reasons for any increase of the price.
The client is bound to pay such increase only to the extent that it results from work, services or expenses that the contractor or the provider of services could not foresee at the time the contract was entered into.
2108. Where the price is fixed according to the value of the work performed, the services rendered or the property furnished, the contractor or the provider of services is bound, at the request of the client, to give him an account of the progress of the work or of the services rendered and expenses incurred so far.
2109. Where the price is fixed by the contract, the client shall pay the price agreed, and may not claim a reduction of the price on the ground that the work or service required less effort or cost less than had been foreseen.
Similarly, the contractor or the provider of services may not claim an increase of the price for the opposite reason.
Unless otherwise agreed by the parties, the price fixed by the contract remains unchanged notwithstanding any modification of the original terms and conditions of performance.
§ 2. — Special provisions respecting works
I. — General provisions
2110. The client is bound to accept the work when work is completed; work is completed when the work has been produced and is ready to be used for its intended purpose.
Acceptance of the work is the act by which the client declares that he accepts it, with or without reservation.
2111. The client is not bound to pay the price before the work is accepted.
At the time of payment, the client may deduct from the price, until the repairs or corrections are made to the work, a sufficient amount to meet the reservations which he made as to the apparent defects or poor workmanship that existed when he accepted the work.
The client may not exercise this right if the contractor furnishes him with sufficient security to guarantee the performance of his obligations.
2112. If the parties do not agree on the amount to be deducted and on the work to be completed, an assessment is made by an expert designated by the parties or, failing that, by the court.
2113. A client who accepts without reservation retains his right to pursue his remedies against the contractor in cases of nonapparent defects or nonapparent poor workmanship.
2114. Where the work is performed in successive phases, it may be accepted in parts; the price for each part is payable upon delivery and acceptance of the part; payment creates a presumption that the part has been accepted, unless the sums paid are to be considered as merely partial payments on the price.
2115. The contractor is liable for loss of the work occurring before its delivery, unless it is due to the fault of the client or the client is in default to receive the work.
Where the property is furnished by the client, the contractor is not liable for the loss of the work unless it is due to his fault or some other failure on his part. He may not claim the price of his work except where the loss of the work results from an inherent defect in the property furnished or a defect in the property that he was unable to detect, or where the loss is due to the fault of the client.
2116. The prescription of rights to pursue remedies between the parties begins to run only from the time that work is completed, even in respect of work that was subject to reservations at the time of acceptance of the work.
II. — Immovable works
2117. At any time during the construction or renovation of an immovable, the client, provided he does not interfere with the work, may examine the progress of the work, the quality of the materials used and of the work performed, and the statement of expenses incurred so far.
2118. Unless they can be relieved from liability, the contractor, the architect and the engineer who, as the case may be, directed or supervised the work, and the subcontractor with respect to work performed by him, are solidarily liable for the loss of the work occurring within five years after the work was completed, whether the loss results from faulty design, construction or production of the work, or the unfavourable nature of the ground.
2119. The architect or the engineer may be relieved from liability only by proving that the defects in the work or in the part of it completed do not result from any erroneous or faulty expert opinion or plan he may have submitted or from any failure to direct or supervise the work.
The contractor may be relieved from liability only by proving that the defects result from an erroneous or faulty expert opinion or plan of the architect or engineer selected by the client. The subcontractor may be relieved from liability only by proving that the defects result from decisions made by the contractor or from the expert opinions or plans furnished by the architect or engineer.
They may, in addition, be relieved from liability by proving that the defects result from decisions imposed by the client in selecting the land or materials, or the subcontractors, experts, or construction methods.
2120. The contractor, the architect and the engineer, in respect of work they directed or supervised, and, where applicable, the subcontractor, in respect of work he performed, are jointly liable to warrant the work for one year against poor workmanship existing at the time of acceptance or discovered within one year after acceptance.
2121. An architect or an engineer who does not direct or supervise work is liable only for the loss occasioned by a defect or error in the plans or in the expert opinions furnished by him.
2122. During the performance of the work, the contractor may, if so provided in the agreement, require partial payments on the price of the contract for the value of the work performed and of the materials needed to produce the work; before doing so, he is bound to furnish the client with a statement of the amounts paid to the subcontractors, to the persons having supplied the materials and to any other person having participated in the work, and of the amounts he still owes them for the completion of the work.
2123. At the time of payment, the client may deduct from the price of the contract an amount sufficient to pay the claims of the workman, and those of other persons who may exercise a legal hypothec on the immovable work and who have given him notice of their contract with the contractor in respect of the work performed or the materials or services supplied after such notice was given.
The deduction is valid until such time as the contractor gives the client an acquittance of such claims.
The client may not exercise the right set out in the first paragraph if the contractor furnishes him with sufficient security to guarantee the claims.
2124. For the purposes of this chapter, the promoter of an immovable who sells the work which he has built or caused to be built, even after its completion, is deemed to be a contractor.
DIVISION III
RESILIATION OF THE CONTRACT
2125. The client may unilaterally resiliate the contract even though the work or provision of service is already in progress.
2126. The contractor or the provider of services may not resiliate the contract unilaterally except for a serious reason, and never at an inopportune moment; otherwise, he is liable for any injury caused to the client as a result of the resiliation.
Where the contractor or the provider of services resiliates the contract, he is bound to do all that is immediately necessary to prevent any loss.
2127. The death of the client does not terminate the contract unless its performance thereby becomes impossible or useless.
2128. The contract is not terminated by the death or incapacity of the contractor or the provider of services unless it has been entered into specifically in view of his personal qualifications or cannot be adequately continued by his successor in his professional activities, in which case the client may resiliate it.
2129. Upon resiliation of the contract, the client is bound to pay to the contractor or the provider of services, in proportion to the agreed price, the actual costs and expenses, the value of the work performed before the end of the contract or before the notice of resiliation and, as the case may be, the value of the property furnished, where it can be returned to him and used by him.
For his part, the contractor or the provider of services is bound to repay any advances he has received in excess of what he has earned.
In either case, each party is liable for any other injury that the other party may have suffered.
Last Updated on Friday, 11 June 2010 07:59
