The construction process is characterized by its complexity and duration. The binding result that the parties to the construction contracts strive for is the construction of an independent property, the repair, redevelopment or substantial improvement of an already existing one. The construction and installation works that will lead to this result are too diverse and different in degree and complexity of execution, which implies that they be carried out by a participant in the process who possesses special knowledge and skills. Such is undoubtedly the builder. Its autonomy, characteristic of the construction contract, a subspecies of which the construction contract is considered, is significantly limited by the strong administrative intervention with which the legislator enters into the private legal relations between the investor and the builder in order to protect the high public interest in the successful completion of the construction. Obligations under the construction contractmust be carried out accurately and the construction works completed, because otherwise there is a danger both for the environment and for those passing around the construction site. This conditions construction as a highly responsible economic activity and justifies the legislative intervention establishing special rules with regard to the general regulation of contract of manufacture.
In its activities, the builder is guided not only by what is agreed in the construction contract and the investment project, but also by a number of legally established mandatory rules for the quality of construction and installation works, structural security and safe use of the construction. Last but not least, the prescriptions of the person exercising construction supervision, as well as the specialized construction control bodies in the person of the DNSK and the mayors of the municipalities are also mandatory for it. Failure to comply with them entails not only civil legal consequences, expressed in the assumption of contractual liability to the contracting authority, but also serious administrative penalties and coercive administrative measures — fines are imposed, orders are issued for stopping and dismantling works.
The fulfillment of obligations under the contract is based on several basic principles:
A breach of any of these principles should be considered to constitute non-compliance.1Failure to fulfil a binding obligation constitutes a failure to achieve the result due 2, and in the construction process it is the newly built or renovated real estate. Depending on the causes that give rise to it, the legal consequences may be different. Implementation may be initially impossible (the land is not intended for development in the general plan of the settlement) or become so subsequently. What cannot be delivered with normally practiced means and available opportunities is impossible to implement.3It may be due to objective reasons, guilty behavior of one of the parties to the contract or a third party, and be a complete failure or inaccurate performance. The inaccurate, in turn — delayed, partial or poor quality. Whenever objective causes such as natural disasters, floods, fires, landslides, etc. create an impossibility of performance that is objective and does not depend on the behavior of the parties, the problem arises as to who should bear the adverse consequences that reflect on the property and contractual expectations of the parties. The problem of the risk of assigning such innocent responsibility in The construction processis special and should be the subject of a different study. This statement will focus on the causes of non-compliance that can be blamed on one of the parties.
The countries under the construction contractpursue divergent interests, but their rights and obligations under the contract are interrelated and follow one another, due to the bilateral nature of the construction contract. This functional commitment of the counterparties allows the party that does not receive consideration to refuse to fulfill its obligation and thus to motivate counter-behavior that will lead to the successful completion of the construction process. Even if it is not included as a clause in the contract, this right of the parties originates from the law and is regulated in Art. 90 DAYS It is called objection to an unfulfilled contractand under this provision, a builder who unreasonably does not receive remuneration for his labor at the agreed maturity, duly can stop the execution of construction or refuse to hand over the finished construction. Conversely, the builder will be liable for complete non-performance if, on the date of the expiry of the contract, the construction has not started at all or even completed, the construction does not materially meet the agreed in the contract or the normative requirements for the quality of the construction. The default in construction will be complete when the result is illegal construction within the meaning of Art. 225 ZUT, since illegal constructions are subject to forced removal, and legalization is possible in specific cases.4In these cases, as well as when the contracting authority finds significant deviations from what was agreed in the contract, he has the right to refuse acceptance of the completed construction and installation works, by not signing the so-called act 15 (finding act establishing the suitability for acceptance of the construction) and not to pay the appropriate remunerationuntil the discrepancies or discrepancies found are remedied free of charge.
The guilty conduct of the other party, which constitutes a breach of contractual obligations, can be counteracted in various ways. The most used and widespread among them is the inclusion of Penalty Clausesin the contract, the preventive nature of which stimulates the parties to be correct in their relations. In the event that one of they did not fulfill their obligation exactly, did not do it according to the term in the contract, or did not pretend at all, then it will have to pay a sum of money determined in advance by agreement of the parties with which to compensate the party in dispute. The penalty represents a preliminary assessment of the damages that would have occurred from the failure to fulfil an obligation and is the preferred remedy because in the event of default the party liable has the right to receive the amount representing the penalty without the need to prove the damage caused to it. The fact of non-fulfillment is enough. This is because with the inclusion of the penalty in the contract, the question of the responsibility of the defective party is resolved in advance. In the construction contract and its varieties, penalties can be agreed in favor of both parties, for example, the contracting authority will be obliged to pay a penalty in case of delay in payment of the installment under the contract, and the contractor - if he delays in the performance of the relevant stage of the construction. The exact amount of the penalty can be fixed on a constant basis or express a percentage ratio of the total remuneration under the contract. It is important to emphasize that the penalty should not bring profit, but be a reasonable regulator of relations between the parties. Otherwise, there would be a violation of the prohibition on unjust enrichment of one party (albeit a good one) at the expense of the other (albeit defective) party. Therefore, the legislator has provided for the possibility of adjusting its amount in accordance with the damage actually suffered and the interested party can ask the court to reduce it when the amount of the agreed penalty is too large. This rule does not apply to cases where the construction contract is concluded between traders, as is often the case in practice. Appendix will find the provision of Art. 309 TZ, according to which 'The penalty payable in respect of a commercial transaction concluded between traders shall not be reduced by an excessive amount. 'It is assumed that traders are professionals, trading is their permanent occupation, and so they can more accurately predict the amount of damage from the failure to fulfill the obligation assumed. However, in TR 1/2009 of 15.06.2010 of the Civil Procedure Court recognized the court's official authority to monitor compliance of the penalty clause with good manners and the principle of fairness in civil and commercial relations. Then, when the sole purpose for which it is agreed goes beyond its inherent protective, compensatory and sanctioning functions, it should be declared null and void on the basis of Article 26 para. 1 ZD. This will be the case when, in the event of deficiencies in the performance of the works awarded by the contract, found upon acceptance of the works or within the warranty periods and not remedied within a reasonable time by the contractor, the latter must to pay the contracting authority a penalty equal to double the costs necessary to remedy the deficiencies. 5
In case of default, the defendant has the right to claim compensation for material damage actually suffered, including lost profits,if it exceeds the amount of the agreed penalty or it has not been agreed (art. 82 P.M.). To cover compensation for damages that are caused as a result of wrongful actions or omissions in the performance of their duties, the participants in the construction process for whom it is an economic activity (including the builder), take out professional liability insurance. If they do not, the contracting authority can protect itself by legally stop all paymentsto them (Art. 174 para. 2 ST).
In one of the common contracts in practice, which contain the obligation to carry out construction - “contract for construction and preliminary sale of real estate” (most often an object in a new building), a valuable incentive tool for performance is the donkeywithin the meaning of Art. 91 ZD. These contracts are unnamed and do not meet the requirements to the parties to the construction contract in Art. 161 ZT, but they are also largely subject to the rules of production, because practice considers them to be a contract of a mixed nature — for production and for a preliminary contract of purchase and sale. 6They are a direct consequence of the rule on freedom of contract under art. 9 P.M. At the conclusion of these contracts, the parties give an advance (caparo), which serves as proof to them that they have concluded the contract. The most preferred option for the parties is that their obligations are fulfilled accurately and that the deposit be deducted from the total price of the property. If this does not happen, however, the claim acts as a security and remedy against the defendant's default. In the event that the buyer who made the claim does not receive a counterclaim, he may, without referring the dispute to the court, to terminate the contract and ask for the lump sum in doublewhereas, in the opposite case, it would have the right to renounce the preliminary contract, retaining the provision given. Often, in an advance, parties use its size to formulate their penalty clauses “In the event of the Seller's delay lasting more than... days, the Buyer has the right to unilaterally terminate the contract. In this case, the Seller is obliged to return all contributions paid by the Buyer and payment of a penalty in the amount of the given advance.” Under this contract, the right of both parties is recognized to request from the competent court the declaration of the preliminary contract as final with a claim under Article 19, para. 3 ZPD, unlike the other common in practice, preliminary contract for the establishment of a building right against a construction obligation. There is a view in the doctrine according to which this right will be available only to the builder, who will only have a legal interest in the conclusion of a final contract and with this fulfillment of the obligation of the owner of the land to establish in his favor a right to construction, because until then he will not have a guarantee that the right of owner/right to construction will not be transferred disposed of/established to another or the built up to date acquired by inheritance for the owner of the land according to Art. 92 ZS. 7
Regardless of the right to claim damages and penalties, there is the possibility for the defendant to broke the contractin case of culpable default of the other party, having previously given an appropriate deadline for execution. In the construction contract there is a special rule according to which if it becomes clear that the builder will not be able to perform the work on time or that he will not perform it in the agreed or proper manner, the contracting authority may terminate the construction contract with a unilateral declaration of intent (art. 265 para. 2 WEEKS).
The implementation of the construction is the main obligation of the builder under the construction contract, and the question of its qualitative implementation is especially sensitive for the whole society. The possibility of poor quality construction is alarming and poses a potential danger to every individual, and this motivates the legislator to take decisive measures to create quality standards that are included as a natural content in any construction contract and cannot be derogated by the parties through contrary agreements. These mandatory rules are found in various laws and regulations, which correspond to the general framework of the construction contract and complement it, but often lead to contradictions in practice, and thus to a desire among practitioners for legislative changes in the direction of creating a unified framework of the construction contract. In addition to Part III of the ZUT (Art. 157 — 179), norms for the quality of constructions are also contained in the Law on Technical Requirements for Products, Ordinance on Essential Requirements for Construction and Assessment of Conformity of Construction Products, Ordinance for the Commissioning of Constructions in the Republic of Bulgaria and minimum warranty periods for completed construction and installation works, facilities and construction sites (Ordinance No. 2) Ordinance on drawing up acts and protocols during construction (Ordinance No. 3), as well as Regulation (EU) No 305/2011 on determining harmonised conditions for the marketing of construction products, the provisions of which have direct effect on our country by virtue of our membership of the EU.
In the doctrine 8the correctness of that legislative decision is rightly called into question when it is referred to strictly specific relations in the construction process, in which the distinction between manifest and hidden defects often presupposes the possession of special knowledge and skills which the contracting authority is not necessarily possessed. 9In the event that the inspection in question reveals that the builder has deviated from the projects or that the construction has defects, the construction will not be considered complete and the contracting authority will have the right to demand:
If the deviation from the order or the defects are so significant that the work is unfit for its contractual or ordinary purpose, the contracting authority may terminate the contract.10Within these deadlines, the builder assumes the responsibility to ensure the normal functioning of the completed construction site, as well as to eliminate at his own expense all hidden defects that would appear as a result of operation.
When as a result of guilty actions or inactions of the builder related to non-fulfillment of his obligation to carry out the construction in accordance with the construction papers and the rules for the execution of construction works, regulated in Art. 163 para. 2 ZUT, the contracting entity has suffered damage, the latter will have the right to claim compensation, which will include all damages that are a direct and immediate consequence of the damage. This is not only the damage resulting in a reduction in the property of the injured party, but also those resulting from the inability of the injured party to receive income. 11The buyer will also have this right when we find ourselves in the hypothesis of the most widely concluded contract in the field of construction - the one for the preliminary sale of a future property, who will have the right to choose whether to demand compensation within the warranty periods of Ordinance No. 2 or to take advantage of the possibilities of the seller's general liability for the sale of defective items articles under art. 195 ZZD, according to which he will be entitled:
and in the case of material deficiencies leading to unsuitability — to terminate the contract by claiming back the price together with the costs of the sale.
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