International Construction Law Review
JOINT AND SEVERAL LIABILITY IN CONSTRUCTION CONTRACT LAW
M A B CHAO-DUIVIS1
Professor of Construction Law at Delft University of Technology
1. Introduction
A contractor makes an implementation error, which comes on top of a design error made by the architect and the implementation error is then also overlooked by the supervising architect (as well) while he gives the contractor permission to continue. The damage soon runs up. The project owner holds the contractor liable, since his financial position is substantially better than that of the architect, while ignoring the fact that the architect contributed more to the damage than the contractor did.
The Building and Housing Inspectorate failed to supervise a building project and overlooked an error in a piling plan. The error was initially made by the designing structural engineer. The project owner does not hold the structural engineer liable, since he is merely a one-man business, but holds the municipality liable.
In both situations, there was a concurrence of two errors, in which context the “supervising error” followed the contractor’s “actual error” and, in the first case, the contractor’s actual error followed the design error. In view of the fact that the errors were causally linked to the damage,2 both responsible parties are jointly and severally liable. But is that always necessary and reasonable? This issue—at least, in so far as the second case is concerned—has been on the legal agenda for several years. What should we think of this development, and, if it were reasonable to accept an exception for the supervising government, would it consequently not be reasonable to accept exceptions with regard to joint and several liability in other relationships, as well?
This article gives a brief explanation of the legal rules on joint and several liability as far as they are relevant in this context (section 2); the current development with regard to joint and several liability in cases of coincidental jointly responsible parties (alternative and proportional liability) (section 3); the debate in the United Kingdom on this subject3 (section 4);
1 M A B Chao-Duivis is the director of the Instituut voor Bouwrecht (Institute for Construction Law) and a Professor of Construction Law at Delft University of Technology.
2 It is conceivable that the second error breaks the first error’s causal link to the damage, but I do not assume this to be the case in this article.
3 Recently started again following the publication of a paper for the UK Society for Construction Law: A Baron, “Joint and Several Liability in the Construction Industry: Is it Time for Law Reform in the UK?”, May 2004, available as a download on payment at www.scl.org.uk.
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Joint and Several Liability in Construction Contract Law
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