DEFECTS AND EVENTS GIVING RISE TO DECENNIAL LIABILITY IN BUILDING AND CONSTRUCTION CONTRACTS Under The Kuwaiti Civil Code Dr. Mashael A. Alhajeri Private Law Department Kuwait University School of Law - KUSL [email protected] Abstract The public perception of building ‘defects’ is not necessarily compatible with that of the law. In many instances, problems attributable to the natural ageing of the building and its components or to a lack or proper maintenance are referred to as ‘defects’, whereas, in fact, they would not represent defects for which producers will be liable. ‘Defects’, for the purpose of producers’ post-construction liability, are those representing a blemish in design, materials or workmanship. Kinsella gives the example of flaking asbestos coating on steelwork that is sometimes viewed as a ‘defect’, but when first applied and sealed, the asbestos performed an important safety function. He perceives that, in this example, dangerous flaking may have arisen not from faulty design or workmanship but because vibration and the passage of time now necessitates removal or resealing.1 This paper is an attempt to investigate the present position of the Kuwait Civil Code with regard to this problem, with all the risk that such a difficult area of law is really incapable of being so contained. Therefore, the paper necessarily must have a limited objective – to identify the fundamental features of construction defects that are subjected to the code's decennial liability provisions. Kuwait is an evident example for a civil law country, and can be taken as an indicator to other Arab countries of which the legal systems are based on the French civil law and its legal doctrine, both in the Middle East (Syria, Lebanon, Iraq and Yemen) and North Africa (Egypt, Libya, Algeria, Tunisia and Morocco). Therefore, the findings in this paper are hoped to prove applicable to these legal systems. 1. What Constitutes a ‘Defect’? 1.1 Etymology 1 Paul Kinsella, 'Defective Buildings beyond the Collateral Warranty', Estates Gazette, no. 9229 (1992), 112. Oxford English Reference Dictionary defines the word ‘defect’ as “'di:fekt, dI'fekt/ 1 lack of something essential or required; imperfection. 2 a shortcoming or failing. 3 a blemish 4 the amount by which a thing falls short”.2 The word ‘defective’ is defined as “/dI'fektIV/ 1 having a defect or defects; incomplete, imperfect, faulty … 3 (usu. foll. by in) lacking, deficient …”.3 In the construction context, the term ‘defect’ is generally used to refer to construction faults that exceed ordinary imperfections, affecting a basic structural element of the building works, and turning the building, installation, or structure into a state of functional ruin. Defects, as such, normally result from departure from, or disconformity with, the requirements as to quality imposed by either contract or regulation.4 However, defects do not become an issue unless they are major or excessive. The term is not limited to total or partial collapse of the construction only. For the purpose of this study, a working definition of a construction defect is that it is a failure of the structure or any of its components to be erected in a reasonably workmanlike manner or to perform in the manner intended by the manufacturer or reasonably expected by the client, which proximately causes damage to the structure. 1.2 Aetiology – The Assignment of Causes of Defects The unravelling of the chain of factors or events leading to damage in construction works is called ‘aetiology’. The term refers to the assignment of a cause or reason, or the philosophy of causation.5 Building failure aetiology is often complicated. Matsumoto enumerates the following characteristics of buildings as making the task of assignment of causes of defects - aetiology - particularly difficult (a) individuality; (b) unstable condition of production; (c) ambiguous functions; (d) difficulty of measuring functions; (e) unique role of drawing and specifications; (f) long period of use; and (g) high price. Matsumoto points out that 2 Oxford English Reference Dictionary, p. 372. 3 Ibid, p. 373. 4 Case Studies in Post-Construction Liability and Insurance, ed. by Anthony Lavers, (London: E& FN Spon, 1999), p. 312. 5 Oxford English Reference Dictionary, p. 21. characteristics (c) and (d) are major cause of long disputes.6 In terms of legal uses, aetiology serves in facilitating risk allocation and identifying the producers liable for failures. 2. Defects under the Kuwaiti Civil Code 2.1 Origin – The Egyptian Civil Code The new Egyptian Civil Code of 1949 (hereinafter 'the ECC'), after which the Kuwaiti Civil Code no. 67/1980 ('the KCC') was modelled, expresses awareness of the producers’ superior knowledge and expertise, together with the importance attached to public safety, and therefore places on them the highest standard of care. Hence, the liability was expanded from liability for mere collapse in the old ECC to include inherent defects affecting the stability of the structure as well.7 Collapse, now, whether total or partial, is not necessary to give rise to liability under Art. 651 ECC. Even other defects may render producers liable if they are to threaten the structure’s solidity and security. This is a matter of fact that is to be determined by experts at the appropriate time.8 According to Art. 651 ECC, the producers are liable now with regard to buildings, establishments, and other fixed installations erected by them, in terms of (a) damages caused by the whole or partial collapse of these constructions. Total or partial collapse of the structure would appear to be self-evident, ie the dissolution of the link fastening its portions together; or (b) defects threatening the solidity and security of the structure, eg failing of the foundations. Thus, while the French loi du 3 janvier 1967 spoke of a ‘defect’ in the construction (“si l’edifice perit …”), in Art. 1792 CCF, this limitation was not felt in the Egyptian text of Art. 651, which speak about ‘collapse’ (tahadoum). Therefore, some jurists perceive that under the ECC the liability stands in respect of the overall soundness of the structure, and not merely a liability against defects in the strict sense.9 The KCC followed ECC’s position. Article 692 KCC states, 6 Kouhei Matsumoto, 'The New Home Warranty System in Japan', Habitat International, 10, no. 4 (1986). 7 Art. 651.2 ECC. 8 Abdulrazaq Ahmad Al-Sanhuri, Al-Waseet Fi Sharh Al-Kanoon Al-Madani Aljadeed [Intermediate Treatise on the New Civil Code], 3rd edn, 10 vols (Beirut: Manhurat Al-Halabi, 1998), VII(1), 115. 9 Abdulrasoul Abdulridah, Liability For Hidden Defects, 2nd edn (Kuwait: Dar Al-Kutoub, 1998), p. 398. (1) The contractor and architect warrant for any total or partial collapse or crack in building erected and fixed installations made by them for 10 years to run from the time of completion of the building or installation in accordance with the following articles. (2) If, however, it is established that the contracting parties’ intention was for the buildings or installations to remain for less than 10 years the warranty shall be for the period intended by the parties. (3) The warranty includes the collapse which results from a defect in the land itself or where the employer had allowed the erection of the faulty building or installations as well as any defects revealed in the building or installations which threaten their solidity or safety. The KCC thus provides that producers warrant “total or partial collapse or crack” in buildings and fixed installations. This position of the ECC and KCC is more advantageous to the client than that of their French counterpart, because it stipulates that the warranty also covers “any defects revealed in the building or installations which threaten their strength or safety”. So in this case, the mere discovery of such a threatening defect suffices to establish the decennial liability, even if no collapse actually takes place, eg a serious crack. It is noticeable that there is no such provision under French law.10 2.2 What Constitutes a Defect? The KCC does not define defects giving rise to decennial liability in construction contracts. It seems that the nature of defect required here does not differ from that under other contracts where warranty is an issue. Egyptian case law defines such a defect as “total and partial collapse, including other defects that threaten the [building’s] solidity and safety, even if they did not lead to its immediate collapse”.11 The Explanatory Memorandum for the KCC states “the warranty also covers defects revealed in installations, threatening their solidity and safety, whether the defect was due to materials used, workmanship, or to soil above or under which the installation was built, as in the case where the soil is insecure and the necessary measures to support it or to strengthen its foundations were not taken”.12 It is noteworthy that while Art. 1792 CCF (loi de 1967) used the term ‘to perish’, Art. 651 ECC and Art. 692 KCC use the term ‘collapse’ (tahaddum). Under the three systems, it does not 10 Ibid, p. 259. 11 Appeal no 1847 for the judicial year 59, Court of Cassation. Reproduced in: Mu'awadh Abdultawab, The Annotated Reference to Civil Code's Articles, 4th edn (Alexandria: Munsha'at Al-Ma'arif, 1998), III, p. 699. 12 KCC Explanatory Memorandum, commentary on Art. 692 p. 506. make a difference whether this ruining was total or partial. Thus, any of the following causes may give rise to decennial liability under KCC13 (a) a defect in engineering or construction practice, ie workmanship (malfaçon), eg deficiency in foundations; (b) a defect in the soil on which the construction is erected, eg if the soil is soggy and the necessary measures to remedy this defect have not been taken;14 (c) defects in the materials used in construction, eg bad quality or departure from specifications.