Defects under Dutch law ∗

Dutch construction law as an example of the civil law ap-

proach

List of Abbreviations

AGB Allgemeine Geschäfts-Bedingungen (standard forms)

AR Algemene Regeling voor de honorering van de architect (General
rules for the relation employer-architect)
AVKA Algemene Voorwaarden uitvoering Kleine Aannemingen in het
bouwbedrijf (General Conditions minor constructions)
AVTI Algemene Voorwaarden Technische Installaties (General Condi-
tions technical installations)
BR Bouwrecht (periodical)
BW Burgerlijk Wetboek (civil code)
CC Code Civil
FIDIC Fédération Internationale des Ingénieurs-Conseils
GIW Garantie-Instituut Woningbouw (Institute for the warranty of
housing-construction)
HL House of Lords
HR Hoge Raad (Dutch Supreme Court)
JCT Joint Contracts Tribunal
NJ Nederlandse Jurisprudentie (Law reports)
NJB Nederlands Juristenblad (periodical)
NJW Neue Juristische Wochenschrift (periodical)
RvA Raad van Arbitrage voor de Bouwbedrijven in Nederland (Court
of Arbitration for Building Companies)
UAV Uniforme Administratieve Voorwaarden (Uniform Administrative
Conditions)
VOB Verdingungsordnung für Bauleistungen (German Uniform Condi-
tions for Construction)

Table of Contents
1. Introduction
2. Construction Law and the code-system [122]
3. Defects and the Construction Law system
4. The liability for defects caused by materials chosen by the employer
5. The nominated sub-contractor and defects

∗ In: Selected Problems of Construction Law: International Approach, Switserland, Fri-

bourg: University Press 1983, p. 121-143.
2 BOUWRECHT

6. The contractor’s liability for defects and the supervision, inspection and
approval by the employer
7. The contractor’s duty to warn
8. The principle of good faith; some applications (exemption clauses)
9. The responsibility for defects after completion of the work

1. Introduction
Before going into the subject of defects I would like to make a few remarks on the
scope of this working paper. I will treat the subject according to Dutch law, realiz-
ing though, that the law of a small country as The Netherlands is of relative unim-
portance to lawyers of other countries. As a consequence, I will not discuss the
Dutch law on defects in too great detail on the one hand, and will make compari-
sons with the law in neighbouring civil law and common law countries on the
other hand. Concerning the last point, I immediately have to make a caveat, as my
interest in comparative law in this field is stronger than the knowledge of it, not to
speak of the time available. Given these restrictions, perhaps even due to these
restrictions, I hope to given an illustrative example of the civil law approach to
this part of Construction Law. As will become clear later, the code based countries
of Western Europe have much in common, and several developments take place
unhindered by geographical boundaries. This brings me to the causa of this paper,
the formulation of theses for the conference discussion. I trust the Dutch Connec-
tion will render enough problems, and solutions as well, for this purpose.

2. Construction Law and the code-system

The structure of Construction Law in civil law countries is basically the same. The
Civil Code contains a section on the construction or building contract and a vari-
ety of standard forms has come into existence which are being followed in prac-
tice. The co-existence of two bodies of rules may give rise to some complications
as to applicable law. In countries like The Netherlands and Belgium, where after
the French rule at the beginning of the nineteenth century the French Civil Code
has been accepted, and France, law [123] with regard to construction contracts is
identical, that is, before the important law reform in France of 1978, the Loi
Spinetta. This statement is misleading though, as the identical text of the crucial
code-articles in this field has not proven to be a guarantee over the years for an
identical interpretation by the judge in The Netherlands, Belgium and France.
Sometimes the opposite is true, as we will see later.
The sections referred to are the articles 1640-1652 Dutch Civil Code (of
which art. 1645-1646 deal with the construction of buildings only), which corre-
spond with art. 1787-1799 Belgian and French Civil Code (art. 1792-1793 on
buildings). The Civil Code of Western Germany also has a section on the building
contract, art. 631-651. The concepts of Construction Law in these codes are
clearly out of date, which gave rise to the regulation by standard forms. Standard
building contracts have a long history in The Netherlands; the oldest contract
dates from 1839, one year after the introduction of the Dutch version of the Civil
Code. This contract, issued by the Ministry of Waterways, has gone through a
number of modifications. The 1938 edition, by the name of ‘Algemene Voor-
waarden’ (General Conditions), underwent a major change in 1968. This reform
led to the ‘Uniforme Administratieve Voorwaarden’, UAV (Uniform Administra-
DEFECTS UNDER DUTCH LAW 3

tive Conditions). The change concerned the procedure of drafting and also the
content of the new conditions. For the first time there has been an ample consulta-
tion of interest groups, especially the organization of construction companies, thus
no longer the description of ‘adhesion contract’ was appropriate. The law reform
itself was partially based on new developments in case-law. In the treatment of
these UAV-rules in this paper, a comparison will be made with the German VOB-
conditions, which in many respects show a striking similarity.
The UAV-conditions are traditionally written for the government building
contract; by another tradition they are widely used in civil contracts of importance.
It is generally assumed that these conditions are standard indeed; a recent study,
however, indicates that they are not as commonly applied as thought thus far, and
moreover, that in a considerable percentage of cases the employer dictates clauses
departing from the UAV-rules. 1
There are several other standard forms used in construction law. Of these
the following should be mentioned: the AV Burgerwerk (civil construction) used
for minor construction contracts (1972), the AVTI 1970 (technical [124] installa-
tions), the 1974 Model koop-/aannemingsovereenkomst (model sale/construction
contract, residence building), and the Stichting Garantie Instituut Woningbouw
(Institute for the warranty of housing-construction, 1974).
In 1979 the first mentioned conditions were reformed and published as the
AVKA 1979; also the AVTI-1978 replaced the 1970-edition. Due to the develop-
ment of Consumer Law, a characteristic of the conditions which appeared since
1974 is the consultation of consumer interest groups and legal organizations, with
as a result a greater sophistication in the weighing of interests. For instance, harsh
exemption clauses favouring the contractor in the 1972 AV Burgerwerk were
struck in the AVKA 1979.
This variety of standard forms has led to the institution of a study group,
recruited from a range of interest groups, in 1978. The group’s report appeared in
1981 and is subject of discussion at the moment 2 . In the Draft New Civil Code,
which also contains a new section on the construction contract, no attempt is made
to bring standard forms under the code 3 , 4 . In the Dutch New Civil Code the regu-
lations on standard form contracts are part of the section on consumer sale (art.
1.1.1.4).
Legal disputes in construction law in The Netherlands, as a rule, are settled
by arbitration. Unlike the situation in other countries, Dutch civil courts have a
minor influence on the development of this part of the law. An exception should
be made though, for leading cases of the Hoge Raad (Supreme Court) dealing with
the Law of Obligations in general or with the interpretation of the articles of the

1 A study in the Rotterdam region of 1975 among 25 building companies revealed that 24%
worked on UAV-conditions; in 52% of the remaining cases the employer had made altera-
tions to the UAV-conditions. The importance of these alterations is unclear; minor changes
are common. Compare for the study: Bouwbelangen, 5th March 1976; A.R. Bloembergen,
BR 1978, 246.
2 Harmonisatie van Standaardvoorwaarden in de bouw, Rapport van de Werkgroep Stan-
daardregelingen in de Bouw, Bouwrecht Monografieën Geschrift nr. 5 1981.
3 Book 7 Draft New Civil Code, title 12.
4 In German law the enactment of the AGB-Gesetz, the Standard Forms Act, in 1976, was
of little importance for the VOB-conditions: the latter regard contracts between commercial
partners as outside the sphere of the Act (compare § 23 sub 2 nr. 5 AGB-Gesetz). Only a
minor adaptation has taken place in § 6 sub 6 VOB/B.
4 BOUWRECHT

Civil Code relating to construction contracts. Thus the bulk of litigation comes
before courts of arbitration, the most important of which is the Raad van Arbitrage
voor de Bouwbedrijven, abb. RvA (Court of Arbitration for Building Companies).
Arbitrators sit in panels of three, or single in petty cases; important cases are pub-
lished in the review for Construction Law, Bouwrecht, whereas minor cases ap-
pear in the yearly report, in an abridged form 5 . Case-law has a strong influence on
Construction [125] Law as a whole. As remarked earlier, it was the basis for the
reform which led to the UAV of 1968, and for later conditions as well. The posi-
tion of case-law in this field has a definite common law flavour, which is, inciden-
tally, a general trend in an increasing range of fields in civil law, not unlike its
counterpart, the increasing importance of legislation in common law countries.
Returning to the role of the arbitrator and the judge in Construction Law, their
activities have been most remarkable in the use of the principle of good faith in its
several shapes 6 . In the field of Defects too, as we will see shortly, examples
abound.

3. Defects and the Construction Law system

In this paragraph I would like to give an outline of the place taken by Defects in
the system of Construction Law, before and after completion of the work.
According to § 5 sub 2 UAV the employer is responsible for the design,
plans and drawings furnished by him or on his behalf, including the influence of
sub-surface conditions, and also for orders and instructions given to the contractor
by him or on his behalf. The employer is also responsible for damages caused by
defects in materials and equipment placed at the contractor’s disposal by the em-
ployer (sub 3). As for the obligations of the contractor, all materials used by him
have to be of good quality and fit for the purpose, § 17 sub 1 UAV. All materials
have to be inspected and approved by the employer’s ‘directie’, his supervisor
(architect/engineer) (sub 2). Defects in materials found after approval by the su-
pervisor may be replaced at the employer’s costs; in the case of latent defects li-
ability rests with the contractor when the defect was caused by his default, or his
supplier’s, his subcontractor’s or his personnel’s default (sub 3). Good workman-
ship in the use of the materials is the subject of § 6 sub 1, where in general terms it
is stated that the contractor has to work with all proper skill and care. This is done
in the form of a reference to art. 1375 BW (Dutch CC), laying down the rule that a
contract should be carried out according to the obligations derived from statute,
good faith and custom, with the addition of the obligation of the proper use of
materials. A warranty of fitness for purpose is not found explicitly in the UAV; in
the literature, however, such a warranty is generally accepted. Usually this is seen
as an obligation to achieve a certain result, in contrast to an obligation to exercise
a proper standard of care. The importance [126] of this distinction derived from
the Law of Obligations, is questioned in the last decades; most authors, nowadays,
see it as a matter of principle only, subject to exceptions based on the surrounding

5 The reports appear from 1907. Recently cases are also brought before the director of the
GIW, the Institute for the warranty of housing-construction, who gives a binding legal
opinion. This procedure is informal and inexpensive; decisions are being published in Bou-
wrecht.
6 In the 75-year existence of the Raad van Arbitrage one of the corner stones of its case-law
has been the just solution in the specific case, compare D.H. Smit, Tijdschrift voor Arbi-
trage, 1982, 30.
DEFECTS UNDER DUTCH LAW 5

circumstances 7 of the case. The distinction has been introduced formerly, mainly
as a tool for the adjudication of the burden of proof in a breach of contract action;
in the law of construction, however, the law of evidence is of very little impor-
tance, as the arbitrators are construction specialists themselves and rely on their
own judgment at the construction site without any need for further evidence.
The obligations of the contractor are elaborated in the subsections 2-29 of §
6 UAV. The most important one for our subject is § 6 sub 14: the duty to warn.
Here we find an obligation of good faith to warn the employer’s supervisor in the
case of defects found in the design, plans and drawings, orders and instructions, or
in materials and equipment furnished by the employer. This rule, developed by the
Court of Arbitration over the years, is also known in the German VOB: § 4 sub 3
VOB/B. In both countries it is a common cause for litigation, raising many legal
questions. We will go into this field below, § 7. One of the issues is the delicate
relation to the duty to supervise exercised by the employer’s supervisor (§ 3 sub 5
UAV).
The completion of the work is of importance for the contractor’s liability
for defects. The main rule, according to § 12 UAV, is that after completion, fol-
lowed by inspection and approval by the employer by notice in writing, the con-
tractor no longer carries the liability for defects. Two important exceptions are
given in § 12 sub 2 UAV: the case wherein art. 1645 BW is applicable, the liabil-
ity for buildings according to the Civil Code, and secondly, the case of latent de-
fects, caused by the default of the contractor, of his supplier, sub-contractor or
personnel. In the last case the employer should give notice of the defect within a
reasonable period after discovery; his action expires after five years from the date
of completion or from the expiry date of the period of maintenance. A defect is
considered latent when it could not have been discovered after reasonable inspec-
tion by the employer’s supervisor (sub 3). Although the text of § 12 suggests a
fault-liability for the contractor, in the same wording as used in § 17, supra, most
authors accept a strict-liability or no-fault-liability. We will return to the latent
defects later, including the regulations in other standard forms, which usually have
a shorter expiry term for an action on defect (infra, § 9).
The reference made to art. 1645 BW is rather controversial, as is the article itself.
This article holds, that if a building collapses by a defect in the construction, [127]
the contractor is held responsible for a period of ten years after completion. The
interpretation of this article has led to several theories; in the leading theory, based
on the standpoint of the Hoge Raad (Supreme Court) and Court of Arbitration as
well, the action against the contractor lies for 30 years, the normal term for legal
actions, whereas the ten-year period of art. 1645 BW only indicates a reversal of
the burden of proof, to the disadvantage of the contractor. When we will go deeper
into this matter, we will notice that this same article of the Code is interpreted
differently by Belgian and French Courts (infra, § 9).
A much debated issue in the field of defects is the question whether the
contractor is still liable for latent defects even though the employer may have cho-
sen the materials or nominated the supplier and there has been no lack of care and
skill on the part of the contractor. This question, and the related question on the
contractor’s liability for a sub-contractor nominated by the employer, are asking
our attention (infra, §§ 4 and 5).

7 Compare Asser, Bijzondere Overeenkomsten III, by Thunnissen, 1977, 227 (cited as As-
ser-Thunnissen).
6 BOUWRECHT

4. The liability for defects caused by materials chosen by the

employer
In the case of defective materials chosen by the employer or obtained from a sup-
plier nominated by him, the legal question arising has to do with a collision of two
basic rules of law. The first one being that the contractor warrants that the materi-
als he will use are reasonably fit for the purpose for which they will be used and of
good quality, and the second one, as a principle of the Law of Obligations, that the
employer by choosing the materials (or the supplier) is shifting the risk for insuffi-
cient fitness for purpose or quality of the materials to his side. The Hoge Raad in a
leading case, the HIM-case or Moffenkit-case (1966), chose for the last mentioned
rule, which gave rise to a still continuing discussion 8 . This rule was implied in
another landmark decision, the Cadix-case (1968), laying down the general rule
that in the case of an obligation to achieve a certain result, the debtor warrants the
fitness for purpose of materials used, our first mentioned rule, with the important
addition: if the type of contract, the common understanding concerning the trans-
action involved, or equity are not indicating otherwise 9 .
[128] The UAV of 1968 left the matter unsolved, in contrast with the Ger-
man VOB-conditions: § 13 sub 3 VOB/B clearly states that in the present case
responsibility rests with the employer, on the same footing as when materials have
been furnished by him 10 . There seems to be no discussion with regard to this sub-
ject in Western Germany as opposed to the situation in Holland. In the Dutch lit-
erature the controversy has to do with the interpretation of the holding in the Mof-
fenkit-case on the one hand, and with the need for differentiation in the rule on the
other hand. To start with the first question, in the case at hand the contractor had
to lay concrete sewage pipes below water level. The employer, the municipality of
Heemskerk, advised by an architect, had prescribed adhesive material for connect-
ing the pipes, produced by the HIM-factory, named ‘Moffenkit’. This gluton
proved to be not waterproof, and repair work was necessary. The Hoge Raad ruled
that for the action in breach of contract or in tort it makes no difference whether
the material manufactured and distributed by HIM was ‘defective in general’, or
only ‘the quantity supplied for the specific work was defective’. In the comments
the distinction has been made between the so-called ‘functional defects’ and ‘spe-
cific defects’. The former concept designates materials unfit for the purpose in
general or for the particular purpose; the latter concept is regarding materials
which are defective due to a fault in the production process which only affected a
certain number of products. In this category the materials supplied and used form
an exceptional defective quantity of an otherwise good product. The distinction
‘functional’ – ‘specific’ defects seems to run parallel with the distinction ‘fitness
for purpose’ – ‘good quality’ in the common law 11 .
Some authors are of the opinion that only in the case of functional defects

8 HR 25th March 1966, NJ 279; the case will be discussed infra.

9 HR 13th Dec. 1968, NJ 1969, 174. In this case a cleansing material by the name of Poly-
clens was used in a factory with disasterous effects to goods stored in the factory.
10 Compare Ingenstau/Korbion, VOB Kommentar, 9th ed. 1980 (at § 13,3 nr. 59); M.
Schmalzl, Die Haftung des Architekten und des Bauunternehmers, 4th ed. 1980, 164; H.
Locher, Das Private Baurecht, 2nd ed. 1978, 74.
11 Compare D. Keating, Building Contracts, 4th ed. 1978, 39.
DEFECTS UNDER DUTCH LAW 7

the responsibility for the defects shifts with the choice of materials made by the
employer, whereas in the case of specific defects the responsibility stays with the
contractor, as a consequence of the basic rule 12 . To put it differently, in this line of
thought only in exceptional cases one should deviate from the principle that liabil-
ity for defective materials rests with the contractor, and only when functional de-
fects are involved the prescription of materials by the employer is making up for
an exception to the rule. This standpoint, contrary to the decision of the Hoge
Raad in the Moffenkit-case, is also taken in the draft New Civil Code, and in a
1977 decision of the Court of Arbitration, [129] the Monoliet-case 13 . There is a
strong indication that the Court is going over to the opposite view, in a decision in
1981 14 .
Several other authors though, including the present author, took the oppo-
site view and chose the side of the Hoge Raad. In their opinion the risk-shifting
aspect prevails over the contractor’s basic responsibility for materials used. Before
going deeper into the argument a short exposé of the Monoliet-case may serve as
an illustration of the matter. In this case the employer nominated a supplier and
prescribed the use of concrete floor-elements produced by the Monoliet factory.
The defects which occurred in the floor-elements were not caused by an incidental
fault in the manufacture. A new manufacturing process had been started; to speed
up production calciumchloride was added to the concrete. Only after inspection
and application of the materials it was found that the addition of calciumchloride
had caused corrosion of the reinforcement iron, and replacement of some of the
elements was necessary. After this discovery Monoliet changed the manufacturing
process. The Court of Arbitration with reference to the §§ 5 and 17 UAV, held
that in this case there is no question of functional defects, but of specific defects. It
is also said that functional defects are in essence defects in design, which are the
employers responsibility. The present defects in the floor-elements are seen by the
arbitrators as incidental, as the Monoliet-floor-elements are generally of good
quality and fit for the purpose. Thus the defects were qualified as ‘specific de-
fects’, regarding the quality of the quantity delivered by the contractor’s supplier,
which defects according to § 17 sub 3 UAV are the responsibility of the contrac-
tor. The nomination of the supplier by the employer was of no significance for the
Court.
In his annotation on this decision Thunnissen points out that in this case it
is hard to make a clear distinction between functional (fit for purpose) and specific
(quality) defects, as all products of this manufacturer proved defective during a
certain period, and unfit for the general and the particular purposes alike. In bor-
derline cases in his opinion the decision should be at the cost of the party which
chose the material. Thunnissen also disagrees with the Court in regard of the
nomination of the supplier and its consequence: he favours the shifting of the risk
to the side of the employer 15 .
Let us return now to the controversy and have a closer look at the argu-
ments for the Hoge Raad approach. There seem to be two views in dealing with
this problem: to treat the problem as a part of the contractual relation between

12 For a survey, J.M. van Dunné, BR 1978, 262, and recently, H.C. Wesseling, BR 1981,
465.
13 RvA 10th Nov. 1977, BR 1978, 72, with an annotation by Thunnissen.
14 RvA 31st March 1981, BR 649, with an annotation by Thunnissen, in an obiter dictum.
15 Compare also Asser-Thunnissen, 236.
8 BOUWRECHT

contractor and employer, and, secondly, to handle it as a problem of [130] prod-

ucts liability at large. Remembering the maxim that all roads lead to Rome, it
seems appropriate to make a preliminary statement at this stage. The Roman con-
cept which still plays a crucial role in the Law of Contract, is the principle of good
faith. In its modern application this means that the interpretation or construction of
contract, the imputation of risks in the case of frustration or of defective materials
and equipment, etc., should be done according to the standard of good faith. For
the present subject as a consequence the risk-shifting problem should be solved, in
the formulation of the Hoge Raad, on the basis of the type of contract (which also
means: the position of the parties, and their experience, skill, expertise, economic
power, etc.), the common understanding in business circles, and last but not least
equity. In the light of this philosophy, for instance, the Hoge Raad held in the
Fokker-airplanewing-case (1968) that the fact of insurance of a certain risk by one
party may be an indication that there is a common understanding that the risk
should lie on its side. In this case also was considered of importance the fact that
the small company executing the contract was paid a very low per hour price, and
that the break-down of the hoisting crane was caused by an invisible defect in one
bolt, while the amount of damages stood in no relation to the remuneration for the
work done. This case illustrates at what length the Hoge Raad is prepared to go to
place the contract in its socio-economic context. Another development which
should be noticed, is that in modern law the once clear dividing lines between
contract and tort are getting blurred. In recent times it is very hard to distinguish
duties of care in contract from those in tort. It is not only that in one situation be-
tween two persons both actions, in contract and in tort, may lie, as a matter of civil
procedure; the duty in question may be formulated either as a contractual duty or
as one of tort. The consequences of this union, which in many jurisdictions in fact
is a re-union, are hardly thought through in our time 16 . It seems worth while to
take this development into account when dealing with our subject. It gives a justi-
fication to stress the social setting of the construction contract and to weigh the
social consequences of the different solutions.
There are several reasons, it is submitted, for shifting the risk of defective materi-
als to the nominating or prescribing employer. Often the employer may nominate
a supplier or producer to obtain a special price, with the risk that the cheaper
products will prove to be inferior. The contractor is left out in this transaction; he
also will have no influence on the conditions of the [131] contract negotiated with
the supplier/producer, of which the exemption clauses are the most important. It is
inequitable, in my judgment, to put the contractor up with the risk for defective
materials in this situation. So far for the functional defects (of purpose), but how
about the incidental, specific defects? Is it reasonable to place the risk for these
defects, which always may occur with any supplier or producer, on the side of the
employer who happened to prescribe the supplier/producer? A positive answer
may be based on a general principle of the imputation of risks in the Law of Obli-
gations. A stronger argument, it seems, is one of a more practical nature, in com-
bination with the aspect of principle. In practice it is often very hard to decide
whether the defect in question is of a functional or of a specific nature: sometimes
it will not be clear whether the defect is an inherent quality of the material or

16 An interesting phenomenon is that the development in Dutch law (and in German law
too) is running parallel with that in England and America. For a survey, compare my article
in NJB 1980, 668 (with a discussion of the views of Atiyah, Gilmore, et al.).
DEFECTS UNDER DUTCH LAW 9

caused by the application of a good product, however unfit for the particular pur-
pose. Compare the Moffenkit-case, where the exact nature of the defect never be-
came clear, and the Monoliet-case, where it is hard to define fitness for purpose of
the product in general. To cut off these problem-cases, it is attractive to place the
risk solely on the nominating employer. In defense the employer may plead the ill-
application by the contractor of materials of good quality and fit for the purpose,
for instance in disregard of the producer’s instructions. The burden of proof will
be considerable, but this seems reasonable when taking into account the supervi-
sion executed by the employer, in combination with instructions given on his be-
half. This last aspect, incidentally, illustrates that the assumption underlying my
point of view is that the employer is a professional employer, relying on his own
expertise with the choice of materials, and having supervision on the work. In the
case of a non-professional employer the outcome may be different, for instance
when the defect is functional and the contractor did not perform his duty to warn
the employer, or did not inspect the materials properly.
At this stage it may be instructive to discuss two English cases dealing with
this matter, which also may serve as an introduction to the products liability as-
pects. The cases are: Young and Marten Ltd. v. McManus Childs Ltd. (1968) 2 All
E.R. 1169 (HL) and Gloucesterhire County Council v. Richardson, idem 1911
(HL). Starting-point for the House of Lords in both decisions is that under English
Law of Construction two warranties are implied, the warranty of fitness for pur-
pose and that of good quality 17 . These warranties [132] correspond substantially
with the warranties implied by section 14 of the Sale of Goods Act 1893, as
amended by the Supply of Goods (Implied Terms) Act 1973. Both warranties may
be excluded, which depends on the terms of the contract or on the surrounding
circumstances. The latter situation is the more interesting one and both decisions
are very illustrative in this respect. If the employer in the selection of the materials
in question placed no reliance on the contractor’s skill and judgment, the warranty
of fitness for purpose is considered to be excluded. It remains the question then,
whether the warranty of good quality is also excluded. In the Young and Martin
case, the answer was in the negative. Here the agent of the employer 18 , a highly
skilled and experienced person, relied on his own skill and judgment in the choice
of ‘Somerset 13’ tiles to be used for the roofing of dwelling-houses. Nomen est
omen: owing to some fault in the manufacture the nr. 13 tiles had a latent defect,
not apparent on inspection, but which became apparent after they were fixed by
the contractor and exposed to weather. There was only one manufacturer of these
tiles. It was held that although the warranty of fitness for purpose was excluded
the warranty of quality was not, and the contractor was liable. The fact that the
tiles were obtainable only from one manufacturer was considered insufficient to
negative the implication of the warranty. Lord Pearce made an interesting remark:
if it is known to both parties that the manufacturer gives no warranty to the con-
tractor, that fact is a strong indication that no warranty is being given by the con-
tractor, as is the case when the contractor advises against a particular material.

17 Compare for this subject and these cases Keating, o.c. 39; 3 Halsbury’s Laws, 4th ed. §§
1159, 1164. See also Independant Broadcasting Authority v. BICC Construction Ltd.
(1980) 130 NLJ 603 (H.L.), where it was established that in a building contract for work
and material there was an implied term that the main contractor accepted responsibility for
materials provided by the nominated sub-contractor (collapsing television mast).
18 For the sake of discussion, in fact the main contractor was contracting with his sub-
contractor.
10 BOUWRECHT

This illustrates that the general rule, implying warranties given by the contractor,
is based on the assumption that he will have redress for his losses by suing his
supplier, a chain leading ultimately to the manufacturer. In the present case, how-
ever, the statute of limitation prevented the recourse to the manufacturer, which
was considered to be an unfortunate coincidence only.
In Gloucestershire County Council v. Richardson this last aspect of manu-
facturer’s disclaimers is placed at a central spot. Here the employer nominated the
suppliers for concrete columns at a price and upon terms which had been fixed by
the employer. The columns had defects which were undetectable when they were
supplied, but which appeared after some columns had been used in construction.
The terms included a term limiting liability for defective goods to free replace-
ment and excluded liability for consequential loss of damage. The House of Lords
held that the terms of the contract and the circumstances showed an intention that
the contractor should not be [133] liable for latent defects due to bad manufacture.
The circumstances which influenced the House were the design, materials, speci-
fication, quality and price of the columns were fixed without reference to the con-
tractor, and that under the form of contract used (RIBA 1939 ed.) there was no
right to object to the nomination or to insist on an indemnity. Thus any warranty
by the contractor of the quality or fitness of the columns supplied by the suppliers
was excluded.
Both cases illustrate very well the relevance of the products liability issue,
especially the consequences of manufacturer’s disclaimers 19 . In Dutch law, the
situation is not very clear. In the Moffenkit-case the employer sued the manufac-
turer of the gluton, HIM, in tort. The defence by the HIM-factory, based on the
disclaimer clause in the contract with the contractor, was not accepted by the
Hoge Raad, with the argument that privity of contract was lacking. The fact that
the clause was of common knowledge and therefore binding on the employer, as
alleged by the factory, was considered irrelevant by the court. In the light of more
recent cases the position at law is uncertain at the moment. These cases, however,
although important, are outside the field of construction law. In the gassed onions-
case (1969), where somebody acted an behalf of the owner of a party of onions in
his own name, the owner was held bound by the disclaimer clause, although not
party to the contract 20 . Incidentally, the clause did not protect the defendant party
in this case (who undertook to gas the onions, a treatment against onion-moth),
due to the gross negligence involved in the breach of contract and the tort in re-
spect of the owner, as a rule of good faith. The onions were lost, caused by an
overdose of gas. In a recent decision, the Securicor-case (1979), the Hoge Raad
went deeper into the problem, although not giving final answers 21 . Here we have
transport contract, where the third party tries to evade the exemption clause of the
transport company. The third party, Makro, is the owner of money transported on
a daily basis by Securicor, who was contracted to do so by Makro’s bank, with the
consent of Makro. Due to gross negligence the money was stolen during a particu-
lar transport. The Hoge Raad held that it is reasonable to consider Makro as bound
by Securicor’s disclaimer clause, with the exception of the situation where the

19 Compare also infra, § 8.

20 HR 7th March 1969, NJ 249. The company undertaking the gassing of the onions was the
municipal cleansing-department of the city of Rotterdam, which had no experience in this
field, and sought to rely on the exclusion clause.
21 HR 12th Jan. 1972 NJ 362.
DEFECTS UNDER DUTCH LAW 11

type of disclaimer could not have been expected by Makro, or where Makro under
[134] the given circumstances could trust that the clause would not be binding on
her 22 .
Much is left open still, but is seems that in the case of a common dis-
claimer the third party is bound by it in principle, if good faith and the surround-
ing circumstances do not indicate contrariwise. Thus the rule of the Moffenkit-case
seems to be reversed, as a rule of principle, subject to exceptions. For our topic,
the case of the nominated supplier or prescribed materials, this means that as a
rule, the employer is bound by the exemption clause agreed to in the contract be-
tween contractor and supplier. Two situations may be distinguished: when the
contractor himself fixed the price of the materials and the terms of the contract
without interference of the nominating employer, then, it is submitted, the em-
ployer will be bound by the disclaimer if this is a standard clause, or otherwise a
clause known to the employer. Secondly, when the terms of contract have been
fixed by the employer without reference to the contractor, the employer is a forti-
ori bound by the supplier’s disclaimer. It is open to discussion though, which cir-
cumstances influence the operation of this general rule; one may think of the skill
and expertise of the employer, and of the contractor as well (which may lead to a
duty to warn in advance, and to inspect the materials when supplied), the profes-
sionality of the nominating employer, the fact which party is best equipped to in-
sure the risk, or to bear the consequences 23 . In the field of products liability, but in
many other parts of contract and tort law as well, the weighing of circumstances
like the ones mentioned is a familiar phenomenon.
The prescription of material is a very common feature in the building
world. For an impression, the following figures of research carried out in 1978 are
instructive: 24 [135]

Measure of co-operation in the choice of materials:

(in %)
Concerning: Employers Advisors Main Sub- Installers
contrac- contractors
tors
Main- 59 69 52 30 51
construction
Finishing/outside 63 50 53 28 36
Finishing/inside 64 48 54 38 56
Installations 52 45 28 2 86
Electrical plan 44 41 23 - 48
Furnishing 44 20 19 - 27

22 One may think of the circumstances which the Hoge Raad considered relevant in the
Fokker-case, e.g. the contract price and the insurance aspects.
23 The example given by Lord Pearce in the Young and Marten case is convincing in itself,
but, in all respect, seems to be out of place as an argument in that case, the private em-
ployer encouraged by the builder to choose from the wholesaler’s display rooms a bath or
sanitary fitting. “It would, I think, surprise the average householder if it were suggested that
simply by exercising a choice he lost all right of recourse in respect of the quality of the
fittings against the builder who normally has a better knowledge of these matters” (at p.
1175).
24 Report Beslissingsstructurenonderzoek Bouwnijverheid 1978, Ten Hagen BV; vgl. Co-
bouw Magazine 10th Nov. 1978, 8; J. Rozemond, BR 1979, 187.
12 BOUWRECHT

Influence on the choice of materials (average of 26 articles):

(in %)
Employer Architect Main contractor
Formally decisive 32 38 12
Co-decisive 41 33 24
Advisory 15 24 32
None 12 5 32
Total 100 100 100

5. The nominated sub-contractor and defects

The treatment of this topic can be much shorter than the foregoing one. Firstly,
there is a great similarity in the legal questions related to the consequences of the
choice of materials or suppliers by the employer on the one hand, and the nomina-
tion of sub-contractors by the employer on the other hand. Furthermore, sub-
contracting is the main subject of other working papers.
The basic position at law in both situations is the same. The UAV 1968
holds the contractor responsible for the work of the sub-contractor, and leaves the
matter of the influence of nomination unsettled (§ 6 sub 26). Most authors accept a
risk-shifting in favour of the contractor, as a consequence of the nomination of the
sub-contractor by the employer 25 . The same view is taken in some standard forms,
such as the AV Burgerwerk (civil construction), and the AVTI 1970. The recent
revision of the AVKA forms, in 1979, is in the same line.
The position of the main contractor, however, is not that he is completely
out of the sphere of liability in the present situation. The following scheme has
found general approval in the literature. The skill and expertise of the [136] main
contractor should be compared with that of the sub-contractor. If the specialist
skills are far greater on the side of the sub-contractor, the duties of the main con-
tractor are restricted to the well timing and co-ordination of the construction proc-
ess. If the main contractor is not unfamiliar with the subcontractor’s speciality, or
if this may be assumed to be so, the first party has to exercise some supervision
and has to report gross faults, detectable after superficial inspection, to the em-
ployer. If, finally, the work done by the sub-contractor is of a normal character
and the nomination has taken place on personal grounds only, the responsibility of
the main contractor is increased 26 .
In the AVTI 1970, art. 55 sub 5, this view is put in the form of a general
clause, containing the exclusion of liability of the main installer of equipment for
defective work done by a nominated sub-installer, if he is able to prove that he has
done all that is reasonably required for a good execution of the work (the same
holds for the nominated supplier).
In sub-section 6 of this article the main installer’s duty to warn in the case
of apparent defects and faults in the work of sub-installers is dealt with.
Under some international standard forms the main contractor may exercise
the right of objection of a nominated sub-contractor, or insist on an indemnity. An
interesting solution is found in Clause 59 sub 2, of the FIDIC-conditions (3rd ed.

25Van Dunné, o.c; Wesseling, o.c.

26This scheme, developed by Donders, was accepted by Thunnissen, and others; compare
Van Dunné, o.c. 267. Compare also RvA 24th Nov. 1978 BR 1979, 228.
DEFECTS UNDER DUTCH LAW 13

1977), concerning the shifting of risk from the contractor to the sub-contractor
through an indemnifying clause 27 . [137]

6. The contractor’s liability for defects and the supervision, in-

spection and approval by the employer
A common outcome of litigation in the field of defects is the dividing of the liabil-
ity for damages and consequential losses between the contractor and the employer,
based on lacking or poor supervision carried out by the ‘directie’ on behalf of the
employer. In the decisions of this kind of the Court of Arbitration in the last dec-
ade the employer’s share variates between 50, 33, 25 or 20 %, depending on the
quality of the supervision exercised, compared with the nature of the contractor’s
breach of contract. The measure of supervision, also depending on the position of
the employer, private or professional, is of importance here. If the employer car-
ries no supervision to save costs, he has to accept minor deviations from plans and
drawings. The inspection on the site by a private employer, without experience or
skill, out of sheer interest, cannot be taken as supervision of the work 28 . In several
decisions the incidental character of a supervision, for instance by an architect, is
taken into consideration, at the advantage of the employer 29 . In the case of pro-
ject-building of dwelling-houses, where the private employer could not exercise
free choice in the appointment of the supervisor, this works in his favour when the
supervision was defective 30 . If the supervisor is not functioning properly, it may
be in the interest of the contractor to do something about it. The Hoge Raad once
decided that the contractor under circumstances, as a rule of good faith, may de-
mand replacement of the supervisor by the employer 31 . Sometimes it is required
from the contractor to contact the employer in regard of the problems in the in-

27 Cited by J. Rozemond, BR 1979, 187. Compare also the JCT-forms, infra § 8.

Clause 59 sub 2 FIDIC-conditions states:
“(2) The Contractor shall not be required by the Employer or the Engineer to be deemed to
be under any obligation to employ any nominated Sub-Contractor against whom the Con-
tractor may raise reasonable objection, or who shall decline to enter into a sub-contract with
the Contractor containing provisions:
that in respect of the work, goods, materials or services the subject of the sub-contract, the
nominated Sub-Contractor will undertake towards the Contractor the like obligations and
liabilities as are imposed on the Contract towards the Employer by the terms of the Con-
tract and will save harmless and indemnify the Contractor from and against the same and
from all claims, proceedings, damages, costs, charges and expenses whatsoever arising out
of or in connection therewith, or arising out of or in connection with any failure to perform
such obligations or to fulfil such liabilities, and
that the nominated Sub-Contractor will save harmless and indemnify the Contractor from
and against any negligence by the nominated Sub-Contractor, his agents, workmen and
servants and from and against any misuse by him or them of any Constructional Plant or
Temporary Works provided by the Contractor for the purpose of the Contract and from all
claims as aforesaid.”
28 RvA 27th April 1972 BR 464.
29 RvA 28th Jan. 1980 BR 400; 7th Jan. 1980 BR 195. For earlier cases, see Van
Wijngaarden, BR 1978, 276.
30 RvA 24th Sept. 1980 BR 1081, 65.
31 HR 4th Dec. 1970 NJ 1971, 204; compare also Thunnissen in his annotation under RvA
29th Jan. 1981 BR 528.
14 BOUWRECHT

spection of materials, or the lacking of proper supervision in general 32 .

Thus far the inspection of materials is seen as a part of the supervising ac-
tivities. Some litigation is concerned with the approval of a particular construction
or design, presented to the employer or his supervisor (architect) by the contractor.
In several cases the Court of Arbitration takes the view that approval of the con-
struction or design by the employer or his architect does not shift the risk for fit-
ness for purpose or quality to the employer 33 , 34 . [138]

7. The contractor’s duty to warn

As described above, in § 3, the rule developed by the Court of Arbitration as a
requirement of good faith, the contractor’s duty to warn when detecting defects in
materials, construction or design, has been accepted in the 1968 edition of the
UAV, §6 sub 14. Some recent decisions in this field are noteworthy. The obliga-
tion to warn or inform the employer exists in several variations: it may be required
in regard of the nomination of suppliers or sub-contractors, when the contractor
has knowledge of the bad reputation of the nominated firms, or in regard of the
choice of materials, for similar reasons 35 . There is also the situation of a failing
supervision and finally, the phase of the execution of contract, when plans and
drawings, construction or design are found defective or unsuitable for the purpose
intended.
On occasion the contractor may, by not fulfilling his duty to warn, shift the
liability for certain damages to himself. A good example is the case where the
construction has been prescribed by the employer: in a 1975 case the Court of
Arbitration even held the silent contractor solely responsible for the damage
caused by a defective foundation of a farmhouse 36 . In another case the defective
tiles had been prescribed by the employer; the contractor, who designed the con-
struction, received warnings from his sub-contractor, but failed to warn the em-
ployer 37 .
The warning may be given orally. According to § 4 sub 3 of the German
VOB/B the warning should be in writing. However, the German courts are willing
to help in the case of an oral warning, the contractor may plead contributory neg-
ligence of the architect (the warning may be directed to the architect, if it is appar-
ent that he is taking the warning seriously). Only recently the next step has been
taken, and an oral warning has been accepted directly by the court 38 .
The contractor may also have the obligation to warn when the defective
work or construction is not his responsibility, but for instance that of another con-
structor, if the defects are consequential for his own work 39 . German courts take

32 RvA 3rd April 1981 BR 652, see annotation by Thunnissen.

33 RvA 18th Jan. 1978 BR 1979, 227; RvA 28th Feb. 1979 BR 730; RvA 25th Nov. 1980 BR
1981, 260.
34 Compare for German law, in the same sense, Locher, o.c. 145; Schmalzl, o.c. 54.
35 In a recent case the Court of Arbitration held that the contractor had a duty to warn that
the costs were exceding the contract price, RvA 15th May 1981, BR 732.
36 RvA 14th May 1975 BR 142.
37 RvA 6th Feb. 1979 BR 436.
38 OLG Frankfurt, BauR 1979, 326.
39 Hof Arnhem 28th Jan. 1975 BR 140.
DEFECTS UNDER DUTCH LAW 15

the same view 40 .

The Dutch Court of Arbitration is sometimes very lenient in the qualifica-
tion of a notice or warning; it may be inferred from conduct. In one case, [139]
where a dam-wall collapsed due to a defective construction based on bracing-
poles which proved too short, the (sub-) contractor had taken the initiative to ob-
tain poles longer than the ones prescribed in the plan. But on inspection these were
rejected by the employer, and the shorter ones had been used. Here the conduct of
the contractor was qualified by the Court - in an obiter dictum - as a warning di-
rected to the employer: he should have noticed that the contractor considered the
poles prescribed too short for the purpose 41 .
Sometimes the Court is unwilling to accept only a duty to warn on the side
of the contractor: he may under circumstances also have a duty to declare that his
responsibility for the execution of the contract as demanded by the employer is
excluded. If the employer or his supervisor insists on the original construction, the
contractor does not have to refuse the execution of contract 42 . In a recent decision
the German Bundesgerichtshof (Supreme Court), however, ruled that there may be
an obligation on the contractor to refuse the execution of contract, if he considers
the construction defective and dangerous 43 .
Needless to say, that in all these cases the court will have to consider the
skill and expertise of the contractor and to compare it with that of the employer or
his supervisor. The more know-how on the side of the employer, the less chance
that the contractor is facing a duty to warn. At times the terms of the contract may
prevent the existence of such a duty, when inspection and tests are to be carried
out by the employer or his advisors 44 .
To my impression the duty to warn is not a common feature in English
building law. Keating refers to a Canadian case only, where the employer relied
on the contractor’s experience, judgment and skill to supervise the construction,
and the contractor was held liable for failing to warn the employer of obvious de-
fects in the plans which resulted in defects 45 . When discussing design obligations,
especially clauses 1 (2) and 4 (1) (b) JCT, 1977 Revision, dealing with the con-
tractor’s duties to bring under the architect’s attention any discrepancy in or di-
vergence between the documents there set out, and any divergence between statu-
tory requirements and design documents, Keating states that the clauses do not
impose a positive duty to search for errors on the contractor. However, the author
suggests that a [140] contractor who negligently fails to observe errors cannot take
advantage of such failure, in the form of protection by clause 4 (1) (e) 46 .

8. The principle of good faith; some applications (exemption

40 Ingenstau/Korbion (1977) § 4, 3, nr. 100.

41 RvA 4th Nov. 1975 BR 1976 nr. 38.
42 RvA 13th June 1974 BR nr. 142.
43 BGH 4th July 1980 NJW 1981, 50.
44 G. Kaiser, Die Prüfungs- und Anzeigepflichten des Auftragnehmers nach § 4 VOB,
BauR 1981, 311, at 315.
45 Keating, o.c. 41; Brunswick Construction v. Nowlan (1974) 49 D.L.R. (3d), Supreme
Court of Canada.
46 O.c. 290; 304. At the conference Mr. Keating made the remark that according to recent
developments in English law in the last mentioned situation the contractor can be held li-
able in tort, irrespective of the fact that no contractual obligation to warn exists.
16 BOUWRECHT

clauses)
In Dutch law the question whether a party can rely on an exemption clause is con-
sidered to be a matter of construction, in the light of the principle of good faith
and the surrounding circumstances 47 . In German law the position is the same. So
it all depends on the measure of negligence of the party seeking reliance on the
clause; he will not succeed, according to Dutch law, in the case of gross negli-
gence or wilful breach of contract. In a leading case it was held by the Hoge Raad
that circumstances which should be taken into consideration in the case of an ex-
clusion clause in a standard form contract, are: the measure of fault in relation to
the interests of the parties, the type of contract and its terms, the position of the
parties in society and their relation to each other, the way the clause had been ne-
gotiated, the measure in which the other party was conscious of the meaning of the
clause 48 .
The decisions of the Court of Arbitration are in line with this approach. Of-
ten the Court has to deal with an architect relying on clause 34 AR, which ex-
cludes his liability to a maximum of 50% of his fee.
Some developments in German and English law are worth to be mentioned.
It is standing law of the Bundesgerichtshof, that the ‘Bauträger’, who sells newly
built dwelling-houses with the assignment of rights against third parties can ex-
clude his liability, but this liability revives if the party buying the house does not
succeed in finding redress for his claim elsewhere 49 . This approach is comparable
to legislative action taken in France with the Loi Spinetta (infra). In English law
the construction of contract - view on the exemption clause - question was re-
established by the House of Lords in the Securicor-case in 1980, overruling Lord
Denning’s substantive law-solution of the Harbutt’s Plasticine-case, as a devia-
tion from the Suisse Atlantique-case 50 . [141] But this all is not very shocking in
continental eyes. More interesting, at least for our subject, is clause 28 d of the
JCT Standard form of Building Contract, 1977 revision, the successor of the
RIBA-conditions 51 .
This clause deals with the position of the contractor in regard of exclusion
clauses made by a nominated supplier. The contractor, being liable for latent de-
fects, can require the architect specifically to approve the clause in writing; in
consequence, the contractor is protected by having the benefit of the exclusion
clause. On the architect’s refusal to give the approval the contractor can reject the
nomination.
The principle of good faith also is applied in the case of fraudulent con-
cealment of defects in Dutch law: reliance by the contractor on the expiry of the
term for an action on defects is considered to be against good faith. Standing law
of the Court of Arbitration 52 , it appears in revisions of standard forms and in the

47 HR 20th Feb. 1976 NJ 486, Pseudo-birdpest case.

48 HR 19th May 1967 NJ 261, Saladin v. HBU.
49 Compare W. Jagenburg, Die Entwicklung des Architekten- und Baubetreuungsrechts
1979/1980, NJW 1981, 2394. See also F. Schmidt, § 13 VOB/B im Bauträgervertrag, BauR
1981, 119, for the working of the AGB-Gesetz.
50 Compare Keating, o.c. 140, for the law before the Securicor-case, and the textbooks on
the Law of Contract.
51 Keating, o.c. 381; 142. Compare, in the same sense, the JCT, 1980 Revision, which was
not at this author’s disposal.
52 Compare M.A. van Wijngaarden, Aanneming van bouwwerken en architectenovereen-
DEFECTS UNDER DUTCH LAW 17

New Civil Code 53 . In English law the same position is taken 54 .

9. The responsibility for defects after completion of the work

In our earlier description of the liability of the contractor for defects after comple-
tion of the work in the system of Dutch (or continental) construction law (§ 3), we
noticed the combination of statute law and standard forms. It is not my intention to
give a thorough discussion of the legal questions abundant in this section of the
law. I will only make a sketch of the characteristic features of the law, with some
comparative notes on the interpretation of the Code in Belgium and France, and
then contrast the resulting traditional picture with the revolutionary law reform in
France, by the enactment of the Loi Spinetta in 1978.
Art. 1645 BW (Dutch CC, corresponding with art. 1792 Belgian and
French CC) deals with latent defects, affecting the solidity of a building, and holds
the contractor liable for a period of 10 years. In the interpretation of the Dutch
Supreme Court this means that the burden of proof rests on the contractor, to
prove that the defects were not caused by faults on his part. The [142] same view
was taken by the French courts, before 1978, in contrast with the Belgian courts
which place the burden of proof on the employer 55 . Until recently, only Belgian
courts also accepted patent defects for an action based on this article; in 1979 the
Dutch Court of Arbitration decided in the same way 56 . The statutory requirement
that the solidity of the building should be endangered was also interpreted liber-
ally, in this case. Only in Belgian law the article is considered to be of public pol-
icy, so that the parties are not free to restrict or extend the liability of the contrac-
tor 57 .
So the general trend in Dutch law is that the courts are treating art. 1645
BW in a more liberal way recently. In the traditional view though, the article only
deals with serious, basic defects of a building, and the need for additional provi-
sions was apparent. Most standard forms therefore, have special provisions for
latent defects, which differ in several respects. Especially the liability period
shows a great variety: in the UAV, § 12, it is 5 years, in the AVTI-1978 4 years, in
the AVKA-1979 3 years, in the Benelux Draft 2 years. The German VOB has a
period of 2 years, § 13 sub 3.
In many respects the Loi Spinetta 58 breaks with the traditional rules based
on the code-system, which accounts for a revolutionary flavour of the law reform.
The 10-year period of liability still is the starting-point for the French legislator,
but an important distinction is made, an innovation by Spinetta, namely between
elements of construction and elements of installation. Only in regard of the first

komst, 1979 2nd ed. 59, and recently, RvA 18th May 1981, BR 803.
53 Art. 47 sub 2 AVTI-1978; art. 7.12.12. New CC. Compare also the Report Standaard-
voorwaarden, 1981, 129.
54 Keating, o.c. 129; 166.
55 Asser-Thunnissen, 283.
56 RvA 28th Feb. 1979 BR 730.
57 Frequently the 10-year period of liability is extended by the employer, compare Van
Wijngaarden, BR 1978, 272.
58 Compare for this Law, J.H. Herbots, Rechtskundig Weekblad 1978, 2685; also in BR
1978, 725. Recueil Dalloz & Sirey, 1979, Chronique VII, La responsabilité des construc-
teurs d’après la loi du 4 janvier 1978; Ph. Malinvaud and Ph. Jestaz, Doctrine (1978),
2900, 2923, 2947; Textes (1978), 46686.
18 BOUWRECHT

mentioned elements the liability of the contractor runs for ten years; for installa-
tion elements his liability lasts 2 years, and for perfect finishing of the work, 1
year.
The 10-year liability period for the construction itself regards two kinds of
damages: in relation to the construction as a whole, and to certain installation ele-
ments connected with the constructive elements (elements of comfort, foundation,
shell, division, cover). As for the damage to the total construction, a distinction is
made between defects endangering the building and defects making the building
unfit for the purpose intended.
The 2-year liability period of the contractor for installation elements is
based on the warranty of well functioning of the installation (‘la garantie de bon
fonctionnement’).
[143] The new article 1792 CC confirms the standpoint of the French Cour
de Cassation that the 10-year liability, though a contractual liability, also exists in
regard of the successive owner of the building. Of extreme importance is the ex-
tension of persons liable under this article of the Code: besides the contractor, also
the architect is held responsible, and further the vendor of newly built houses, the
building promotor (‘home builder’), who are liable on the same footing as the con-
tractor 59 .
But this is not all: another breathtaking step is the holding responsible of
the manufacturer of building elements, belonging to the construction (e.g. pre-fab
elements) or to the installations (or the importer of the products). On the manufac-
turer rests a vicarious liability, besides the contractor. The damages can be in rela-
tion to the element itself and the construction work as a whole. Also the technical
bureau supervising the work, which in the French practice is done at the initiative
of the Insurance companies, is brought under the scope of art. 1792 CC. As a mat-
ter of fact, this was already the case-law in France (and Belgium as well). Finally,
another innovation is the obligation for the employer to insure his risks, in a com-
bination of a ‘first party’ insurance of construction damages and a ‘third party’
insurance for the liability persons participating in the construction work 60 . The
other persons held responsible under the new article also have the obligation to
insure.

59 In Belgium the Breyne Act was passed in 1971 holding comparable provisions for the
sale of planned houses. Cf. Herbots, 2703; Asser-Thunnissen, 281.
60 In Dutch practice, the common CAR-insurance policy is not covering damage from la-
tent defects, clause 4. Compare for the insurance aspects also the report of the Study group
on Standaardvoorwaarden, 1981.