Dalan has many talented lawyers who are frequently engaged in resolving disputes and providing legal counsel in cases that are handled under the Act relating to Artisan Services to Consumers.
What sort of services are included here?
The Act relating to Artisan Services to Consumers is applied when a tradesperson supplies a service to a consumer. As examples of these services, the Act lists repairs, maintenance, installations and redevelopments, though this list is not exhaustive. The Act encompasses work carried out on artefacts well as real estate. When the work is related to real estate one tends to describe it as consumer building.
Even though Act relating to Artisan Services to Consumers covers a broad spectrum of services and work of differing duration, the legal rules are the same.
It is usually quite evident that a contract shall be governed by the Act relating to Artisan Services to Consumers. In some cases, however, issues may arise that bring other legislation into consideration, such as the Residential Property Construction Act, the Alienation Act or the Consumer Sales Act.
“In some cases, it may not be clear which law does apply.”
Agreements between two tradespeople
The Act relating to Artisan Services to Consumers is not directly applicable to agreements made by two tradespeople. However, the provisions of the Act might still apply, but in the form of non-statutory rules that apply in cases where nothing else has been agreed (background law). You can read more about the rules governing agreements between tradespeople HERE.
The parties’ performances
An assignment has its basis in an agreement. There is no requirement as to the form of this agreement, both oral and written contracts are binding. It is important to note that a tradesperson cannot enter into an agreement with a consumer that is less favourable for the consumer than stipulated by the Act relating to Artisan Services to Consumers (cf. Section 3 of the Act)
The tradesperson’s performance (service)
The Act relating to Artisan Services to Consumers proceeds from the premise that the tradesperson delivers an agreed service to the consumer. The service shall be carried out professionally. If there are defects in the performance, the consumer can ask for the defects to be remedied.
The tradesperson shall look after the consumer’s interests with due care and has a duty to provide the consumer with the necessary guidance, (cf. Section 5 of the Act). This also implies that the tradesperson has a duty of dissuading the consumer from carrying out the assignment.
“The tradesperson shall look after the consumer’s interests with due care.”
The question as to whether the service has been performed professionally can give rise to some difficult issues. It is essential in such cases to consider what has been agreed. In construction law a number of specialised publications and standards specify what is required for professional performance. These outline the technical requirements, type and method of building, tolerance limits etc. Official regulations may also affect the final result requested by the consumer.
The consumer’s performance (payment)
As consideration for a service the consumer makes a payment to the tradesperson. As a rule, the amount paid is agreed before the work commences. In the absence of any agreement the tradesperson can ask for the going rate for the job.
There are many alternative ways of calculating the price. A fixed price may be agreed for the entire job. Alternatively, remuneration for the work can be paid according to the time spent and material consumed. The parties will then normally agree on an hourly rate. But there may be several pricing alternatives between these two methods. A fixed price may be agreed for the work, but a variable price for the material consumed. Even though it may be less practical, there is nothing to stop one agreeing a fixed price for the material, and a price for the work determined by the time spent on the job.
A tradesperson might well provide a price estimate for the job instead of a fixed price. The work is then carried out as on a cost-plus basis, the general rule being that the final cost shall not exceed the price quoted by more than 15 %. In some cases, the tradesperson will be entitled to impose for an additional charge.
Disputes between the parties often arise in connection with payment, and again one must check what has been written in the contract. Non-compliance with the terms of the contract can affect final payment. If the tradesperson is not given an opportunity to remedy the defect, the consumer may lose the right to ask for a price discount.
Defective performance
If one discovers a defect in the performance of a service it is important to lodge a complaint within a reasonable time. The nature of the complaint must be clear. In making a compliant it is not necessary to address the cause of the defect, it is sufficient to point out that there exists a non-compliance with respect to contractual performance. Legal practice has established that it is normally adequate to make a claim within three months following discovery, or within three months of when one ought to have discovered the defect.
“One must make a claim within three months of discovery, or within three months of when one ought to have discovered the defect.”