Construction Law/Defects


Dear Mr. Elliot,

I would like to know what kinds of defects has to be rectified prior to taking over of the project. i am talking as a Consultant and we have instructed the Contractor to rectify some damages and it it taking forever to complete it and the project take over is getting delayed

so where do we draw the line between the defects which has to be rectified right away and the defects which can be rectified during defects notification period?

Dear Huwey,

I apologise for the delayed response to this query, which got lost somewhere in my mail box.  

I presume that the Contractor has reached the limit of delay damages so that there is no financial pressure on him to complete.  However, he may be liable for damages awarded by the courts due to the Employer's extra costs arising out of the delay.  

I would make a subjective judgement based on the number, value and importance of any defects.  If the Employer can use the project, then it could be suitable for taking over.  For example if the main fuse is missing from a building project, then it would not be usable due to a lack of power to the building.  A defect of small value but high importance, so no taking over.  If the doors on several floors were missing, but due to arrive, then the Employer could start fitting our the rest of the building so partial taking over might be appropriate.  If a few road markings and road signs were missing on a road project, then you might delay taking over based on safety considerations, or you may approve taking over based on value consideration.  As an alternative, and if it was practical, I would give the Contractor notice to finish the outstanding and non-compliant works within, say, 14 days, or some other reasonable period, or I would employ other workers or contractors to complete the work and back charge him for my costs. Of course, I would ensure that there were suitable resources available to carry out my threat before making it.  

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Peter M. Elliott


First response to queries regarding extensions of time, variations orders, site instructions and payment using FIDIC and other forms of Conditions of Contract, based on English Law, and derivatives only. Anyone who needs advice about EoT should download and study the SCL Delay & Disruption Protocol before submitting a question.


Value . . .
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The common law of business balance prohibits paying a little and getting a lot. It can't be done. If you deal with the lowest bidder, it's well to add something for the risk you run.
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Comments and observations leading to improvements in the translation of FIDIC Red & Yellow books into Romanian prior to approval by FIDIC (reference 'Preface to the Romanian edition')

Institution of Civil Engineers, Association of Chartered and Certified Accountants, Society of Construction Law, Dispute Resolution Board Foundation

B Sc(Hons) in Civil Engineering

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