The construction company asked me to sign a contract to build my house “under the Commercial Code”. Am I bound by its deadlines for notifying defects?

A family commissions the construction of a house, and the construction company presents its own template construction contract stating that the contract is governed by Section 536 et seq. of the Commercial Code. The terms then provide for a shorter warranty, require defects to be notified within a short period after handover, and state that the claim will otherwise be extinguished. The Commercial Code does allow parties to choose its application in writing even to a relationship that would not otherwise be commercial (Section 262(1) and (2) of Act No. 513/1991 Zb.). However, if you are building a house for yourself, that choice does not deprive you of protection under the Civil Code.

You are a consumer and the Civil Code takes priority

A consumer is an individual who, in connection with the contract, is acting outside their business or profession; a contract with a construction company is then a consumer contract (Section 52(1) and (4) of the Civil Code, Act No. 40/1964 Zb.). For such a contract, the law provides:

The following quotation is reproduced in its original language:

Na všetky právne vzťahy, ktorých účastníkom je spotrebiteľ, sa vždy prednostne použijú ustanovenia Občianskeho zákonníka, aj keď by sa inak mali použiť normy obchodného práva.

§ 52 ods. 2 Občianskeho zákonníka

Contractual provisions whose content or purpose is to circumvent this rule are invalid (Section 52(2), second sentence). In a case involving a construction contract in which the parties had expressly agreed to apply the Commercial Code and the customers were individuals acting outside their business, the Supreme Court of the Slovak Republic stated that Section 262 of the Commercial Code had become obsolete in consumer matters and that the relationship had to be assessed under the Civil Code (4Ndc/16/2024, paragraph 14). Although the decision concerned the court’s jurisdiction, the court expressed its conclusion on the nature of the relationship in general terms.

Which rules apply to warranties and defect claims

Contractual terms cannot depart from the Civil Code to the consumer’s detriment, and consumers cannot waive their rights in advance (Section 54(1)). The law expressly classifies terms that exclude or restrict consumers’ rights arising from liability for defects as unfair (Section 53(4), letter d)), and such terms are invalid (Section 53(5)). You are therefore not bound by a short deadline in the company’s terms and conditions after which your claim would be extinguished, or by a warranty shorter than the statutory warranty.

The contractor is liable for defects present in the house at handover and, in the case of a building, also for defects that arise later during the warranty period. For the construction of a building, that period is 3 years from the day on which you were due to take over the building (Section 646(1) and (3)). For certain parts of a building, an implementing regulation may prescribe a shorter warranty period, but no less than 18 months (Section 646(3)). If your contract provides a longer warranty or stricter liability, the agreed terms apply (Section 502(2)). A contract concluded before 1. 7. 2024 is assessed under the Civil Code as in force until 30. 6. 2024 (Section 879x). The warranty period for a building is the same under that version, and defects must be notified to the contractor within the warranty period; otherwise, the rights are extinguished (Section 646(3) and Section 649 in that version).

Defects already visible at handover must be notified without undue delay after you have had an opportunity to inspect the house (Section 504), preferably directly in the handover report. Under the general provisions, a defect for which the contractor is liable during the warranty period must be notified within 6 months of its discovery, and no later than the expiry of the warranty period (Section 502(1) and Section 505(1)). A claim must be brought before a court within the limitation period, which begins on the day the defect is notified (Section 508(1)). You should therefore notify defects in writing, describing them and including photographs, and retain proof of delivery.

For a defect that can be remedied, you are entitled to have it remedied free of charge within a reasonable period. For a defect that cannot be remedied and prevents proper use, or if repeated or numerous defects prevent the house from being used properly, you may withdraw from the contract. If a defect that cannot be remedied does not prevent use, you are entitled to a reasonable price reduction (Section 507(1) to (3)). The contractor is not liable for defects caused by materials you supplied or by your unsuitable instructions if the contractor warned you about them (Section 646(4)).

Which of the company’s contract terms apply

The price, deadlines and description of the house bind you as agreed. However, a reference to the Commercial Code does not subject you to rules for businesses that would put you at a disadvantage, as described in the question on defects and warranties under a construction contract. A disproportionately high penalty for your failure to perform an obligation may also be unfair (Section 53(4), letter k)). If the contract contains an arbitration clause, see the question on arbitration clauses in consumer contracts.

We will review your house construction contract before you sign it. We will identify terms that would not stand up in court, as well as valid terms that require negotiation. We provide this review as part of our construction contracts service. If you are already dealing with defects in a completed house, we will help you notify them and take the next steps as part of our disputes over defective works service.