The client's obligations under the contract
In a contract for work, the client is not just the one who pays. Under VÕS § 635(1), the contractor undertakes to do the work and the client to pay a fee for it, but construction demands much more from the client: the design, decisions, approvals, sometimes materials or equipment, and a site the contractor can get to. The Act refers to these generally as acts the client must perform, for example supplying material, giving an instruction or other cooperation (§ 652(1)).
The wording is general, and that is exactly why it pays to list these acts by name in the contract. The more precisely it is written what the client provides and when, the clearer it is later whether a delay belongs to the client or to the contractor. For example, securing access to the site, reaching agreements with the owner of the neighbouring property, applying for utility connections or making interior design choices: all of these sit on the client's side when the contract places them there.
VÕS § 652: three levels
The section is headed "Delay of the client" (unofficial translation), and its three subsections describe three consequences, each more expensive for the client than the last.
| Subsection | Situation | What the contractor may claim |
|---|---|---|
| § 652(1) | the client delays an act (material, instruction, cooperation) | compensation for the loss caused by the delay, taking into account the length of the delay, the contract price and what the contractor saved or could have earned elsewhere |
| § 652(2) | the delay is also a fundamental breach of contract | termination of the contract, and the part of the fee corresponding to the work done plus the expenses not covered by the fee |
| § 652(3) | the client culpably delays acceptance of the work | termination of the contract and the whole agreed fee, less savings |
The first level is the most common and the most underestimated. Every late decision can mean standstill, reorganisation or replanning of the works, and the contractor may claim compensation for that loss. The criteria set by the Act (length, price, savings, the opportunity to earn elsewhere) mean that the claim is not an automatic sum but a calculation that the client can check and challenge.
The second level turns the client's delay into the end of the contract. If the delay is so serious that it amounts to a fundamental breach of contract, the contractor may terminate the contract. The client then loses its contractor, pays for the work done and bears the price and the time of finding a new contractor. This is the same financial position the client fears in the case of a breach by the contractor, only with the roles reversed.
The third level concerns acceptance. Under VÕS § 638, the client is obliged to accept finished work; if it refuses without good reason within a reasonable time set by the contractor, the work is deemed accepted. If acceptance is culpably delayed, the contractor may under § 652(3) terminate the contract and claim the whole agreed fee, less savings. The procedure for accepting defective work is covered in this branch's article on defects and fundamental breach.
The client's materials and instructions: § 653 and § 641(3)
When the client provides material or an instruction, it also bears the associated risk. Under VÕS § 653, the contractor may terminate the contract and claim part of the fee and compensation for expenses if the work is destroyed, deteriorates or becomes impossible before completion or acceptance because of a defect in material provided by the client or because of the client's instruction.
For the same reason, the Act limits the contractor's liability for defects. Under VÕS § 641(3), the contractor is not liable for a non-conformity of the work with the terms of the contract that results from the client's instructions, from defects in material provided by the client or from preliminary work by a third party, if the contractor has checked them sufficiently. The client therefore cannot later shift the consequences of its own instruction onto the contractor if the contractor carried out its checks.
| Client's input | Risk for the client | What to specify in the contract |
|---|---|---|
| material or equipment bought by the client | termination under § 653, limit of liability under § 641(3) | who checks it, when and in which document the material is handed over |
| an instruction or change from the client | the same; plus a possible changed work | who may give instructions, in what form, and within what period the contractor replies |
| preliminary work by a third party (a separate contractor) | § 641(3) | interfaces, the handover certificate, who checks that the preliminary work is suitable |
| the design | the client answers for the design it provides (trend in case-law) | the design stage, the list of documents and their order of priority |
The design is also the client's input
Where the client provides the design, design errors are, as against the contractor, generally at the client's risk. According to the Supreme Court's case-law review on contracts for work (2022), the client is liable to the contractor for the compliance of the design it provided; the review refers to decision 2-15-15662/55 (para 19). This is a trend in published decisions, not a statutory provision; in practice, a design error discovered during construction can become, for the client, a changed work, an additional work or a delay.
The client can in turn hold the projekteerija (the designer) liable under its design contract. That chain and the designer's obligations are covered in the article on the designer's liability and design errors. From the point of view of client delay, what matters is that waiting caused by a deficiency in the design (for example, while a solution is clarified) is also an act of the client, and if it drags on it may give the contractor a claim under § 652(1).
Reducing the risk: schedule, deadlines, trail
The risk of client delay cannot be excluded, but it can be made visible and limited. Three tools work together.
A schedule of the client's decisions as an annex to the contract. An ordinary construction programme shows the contractor's works; the client's decisions are often left out of it. A separate annex should list which decisions, choices, materials and approvals the client must provide, and by which date or before which stage of the works. The existence of a delay then becomes something that can be checked rather than argued about.
Response deadlines. It is worth agreeing in the contract how many days the client has to answer a question from the contractor and, conversely, how many days the contractor has to give notice that an act of the client is late and what effect it attributes to that. The Act itself sets no such deadline; it is a matter for the contract.
A written trail. The contractor's claim is based on the length and the consequences of the delay, so the evidence of these is decisive. The date of the client's decision, the contractor's notice of delay and the minutes of the site meeting where the question was discussed are all worth documenting. The Building Code (ehitusseadustik, EhS) lists the construction diary and the minutes of site meetings among the construction records (EhS § 15(3)); their use as evidence is covered in the article on construction records as evidence.
A short example (fictitious). The contract provides that the client will choose the facade material 3 weeks before the facade works start. The client makes its choice 2 weeks later than agreed. On the same day, the contractor gives written notice that the facade team is standing idle and that it claims compensation for the standstill costs. Because the dates are in the contract and the notice is in writing, the dispute is only about the amount: how much the contractor saved and whether it could have sent the team elsewhere (§ 652(1)). Without the schedule and the notice, the dispute would also be about whether there was any delay at all and whose it was.
Paying is also an act of the client
The client's most ordinary obligation is to pay, and here too the contract decides the timing. Under VÕS § 637, the fee falls due on completion of the work or, if acceptance of the work has been agreed or is customary, on acceptance; if the work is handed over and the fee is set in instalments, payment is made in instalments (subsections 3 and 4). The client does not have to pay the fee before it has had the opportunity to inspect the work, unless otherwise agreed (subsection 5).
A construction contractor also has a statutory means of securing its claims. Under VÕS § 654(2), a contractor obliged to build, repair or alter a structure may demand that a mortgage be established on the client's immovable property to secure its claims. For the client, this means that a payment delay or a dispute over an interim invoice does not remain a matter between the two parties alone, but may also affect the property and its financing. It is therefore worth giving written reasons for the disputed part of an interim invoice and paying the undisputed part on time.
From the point of view of the final cost
Client delay is not a general use of the contingency but a separate risk line. The size of the contingency and how it is used are covered in a separate article on contingency and unforeseen costs. The length of the client's own decision-making process, for example the time needed for board approval, the funder's consent or a decision of the apartment association, should be built into the schedule before the contract is signed, because these are the steps that most often drag on.
Sometimes the client's delay is also the reason why the contractor is late. If the contract contains a contractual penalty for the contractor's delay, a dispute arises over whether the contractor breached the contract at all while it was waiting for an act of the client. The clearer the schedule of the client's decisions, the clearer the basis for the contractual penalty.
This article describes the legal rules as at the date of checking and is intended for professional orientation. It does not replace legal advice or a review of the specific case.