International Construction Law Review
THE CONTENT OF THE NOTICE IN CONTRACTS FOR WORKS
Lorenzo Bertino
Assistant Professor of Law, Università Bocconi
The Italian Supreme Court believes that in contracts for work it is not required to send a specific and detailed notice of the work defects or lack of conformity whereas, in other systems, such notice shall have a comprehensive content in order to allow the contractor to better appreciate the client’s claim.
Actually, a different solution may also be imposed in the Italian system: the client shall have the duty to inform the contractor as soon as possible if a material damage or malfunctioning has occurred. Equally, the client shall look at the existing flaw or defect, by availing of experts in the field, where needed, and notify the contractor of such flaw or defect in a specific way. Such notice shall also be timely, in accordance with the time limits indicated by the law that start running from the discovery of the flaw or defect.
THE NOTICE OF DEFECTS IN CONTRACT FOR WORKS: CONSTITUTIVE OR INHIBITING FACTOR UNDER ARTILCE 2697 CODE CIVIL
In a contract for works, the notice of defects or lack of conformity of the work performed or the service provided must be given by the client to the contractor within 60 days of discovery and, in any event, within 10 years of delivery: failing such notice, the client loses the right to the warranty (Article 1667, subsection 2, cod civ [Italian Civil Code]). In case of buildings or other real property intended, by their nature, for long-term use, if a defect is found in the land or the construction, the notice must be given within one year of discovery and in any event, within ten years of the delivery of the property (Article 1669, subsection 1, cod civ).
Articles 1667 and 1669 cod civ, therefore, condition the effects of the warranty1 upon a constituent part,2 namely the notice of the existence
1 Despite established case law to the contrary, Articles 1667 and ff cod civ, are deemed to be special cases of termination of an agreement for breach, within the more general matter under Articles 1453–1455 cod civ. On this point, see, lastly, Paladini, L’atto unilaterale di risoluzione per inadempimento, Turin, 2013, 141; Dalmartello, entry “Risoluzione del contratto”, in N.ss. D. I., Turin, 1957, XVI, 134. Here the main difference between the general rule and the special case of works and service contract is said to lie in the limitation of the judge’s power to avail of equity in evaluating whether the agreement should be terminated.
2 For this definition, see Sacco, Il fatto, l’atto, il negozio, in Tratt. dir. civ., edited by Sacco, Turin, 2005, 22.
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