This is the third and final article in our series on warranties
in construction contracts. So far, we have looked at two essential
but often overlooked features of product or workmanship warranties,
their nature as contractually binding promises; and
their risk-shifting function.
In this third and final part of our series on warranties, we
consider other ways in which the law deals with claims by owners
and head contractors for the losses suffered by defects in the
workmanship and/or materials supplied by construction
First, there is the duty implied by law in all construction
contracts to perform construction works to a proper and workmanlike
standard. Construction works which fall below this standard will be
treated as a breach of the construction contract and dealt with in
a way that is similar to breaches of warranty.
There is also the general law of negligence that imposes a duty
on suppliers of workmanship and materials. That duty is to ensure
that the labour and material that is supplied at each stage in the
contracting and supply chains does not cause reasonably foreseeable
personal injury, property damage, or, in most construction-related
cases (with some limited exceptions), financial losses.
Where the defects are hidden from view, these duties may still
be owed after (sometimes, a long time after), the warranty period
in relation to the same defects has expired. Also, since this duty
applies universally (with certain limited exceptions that only
rarely apply in a construction context), a properly formulated case
in negligence may in appropriate cases leave less room for argument
about where the duty starts and ends and whether it applies to the
specific defects in question.
There is, in addition, a range of statutory duties that apply to
those who supply labour and materials outside of an employment
context (as construction contractors do). Some of these statutory
duties apply specifically to construction works (or even more
specifically to home building works) whilst others apply generally
to consumer supplies (or even more generally to supplies of goods
and services for a price). Depending on the circumstances of the
relevant supply, these statutory duties may, in a construction
the duty to perform home building works in a proper and
proficient manner (which is virtually the same as the duty of
proper and workmanlike performance implied by law into construction
contracts but may be subject to different limitation periods and in
some cases, different remedies); and
the duty to supply materials that are fit for sale (or
"merchantable"), fit and safe to be used for their
intended purpose and having the same quality and features as any
sample shown to the buyer or description given to the buyer, before
These duties may correspond or partially overlap, in their scope
and content, with the contractual and general law remedies.
However, there may also be differences in how long you have to
enforce your rights or the remedies that are available to you for
breaches of these duties. For example, you may have both a general
law and a statutory right to be compensated for a latent (hidden)
defect that you did not discover until the warranty period ended,
but to be compensated for it under the general law, you would have
to prove that the defect was caused by the builder's negligent
failure to take reasonable care in carrying out the defective
works, whereas to recover under the statute you would only need to
prove that the works were (for whatever reason) defective.
The point is that your rights and obligations are not confined
to the terms of any product or workmanship warranty, the law in
this area is not "one size fits all", and even long after
a builder's or manufacturer's warranty has expired, you may
still have other enforceable legal rights available to you.
HHG Legal Group's construction law and commercial litigation
lawyers have the skill and expertise to advise contractors and
suppliers about their rights and obligations under builders'
and manufacturers' warranties and the best ways to deal with
claims for faulty or defective workmanship or material
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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