Contractors’, engineers’

and architects’ duty to

advise and decennial
liability in civil law
countries: highlights of
some prevailing principles
Marc Frilet
In France and countries influenced by French law, contractors and design
Société d’Avocats,
Paris professionals have more extensive duties to their employers than is typical
in common law countries. These duties include the duty to advise the
Laurent Karila
employer on potential risks and the contractor’s liability to the employer
Société d’Avocats,
Paris and others for completed works.

CONSTRUCTION LAW INTERNATIONAL Volume 7 Issue 2 June 2012 21

FEATURE ARTICLE

F rance and many civil law countries

influenced by the French legal tradition,
which includes, to different degrees, southern
A far-reaching duty to advise
The obligation of the contractor to inform and
advise the employer on various risks that the
Europe, francophone Africa and several
contractor should be aware of in a building or
countries in South America and the Middle
works projects derives from a long tradition of
East, share more or less the same provisions
case law widely accepted as a legal principle. This
and related case law on key issues relating to the
is, for instance, summarised in standard contract
liability of contractors, engineers, architects
conditions for private works, which provide:
and employers. Those principles, which have
‘Before the start of the work and during the
been embedded in codes, derive historically
work, the building contractor must draw
from the desire to protect the employer from
the attention of the project manager to any
the risk of abuse of professionals. This was
disadvantages, defects or faults that could
apparently a significant issue at the time of
result from errors or omissions that he
the design of the French Civil Code more than
notices in the documents that were submitted
two centuries ago.
to him and the orders that he received.’1
As a result, the liability of the contractor,
engineer and architect to the employer after Even in the absence of contractual
acceptance is altogether much more provisions, the contractor has the duty to
extensive than in common law countries, advise and to inform the employer and his
and is also more ‘integrated’. This is due to project manager as to the risks that they
the fact that the building contract is should reasonably be aware of after having
considered a ‘contrat d’entreprise’, that is, a reviewed the technical specifications.
contract where the duty of the contractor is This duty is a positive one and the
to reach a result. If the works of the building contractor may be considered in default
are not in accordance with the for not having advised the employer or
the project manager of a
contract conditions and fit for
purpose, the employer may
‘... the contractor situation that fails to comply
repudiate the contract and has has the duty to with best practices and
no obligation to pay. thereby risks material
In addition to the above, the advise and to damage to the works. This
derives from Article 1135 of
three lines of Civil Code inform the employer the French Civil Code which
provisions relating to good
faith and four to five lines of and his project states that ‘agreements are
binding not only as to what is
the Code on the role of industry
usages have given rise to an
manager as to expressed therein, but also as
extensive case law providing for the risks that they to all the consequences which
a far-reaching duty to advise. equity, usage or statutes give
We will limit this note to three should reasonably to the obligation according
to its nature’.
elements: the duty to advise; the be aware of after In order to better understand
ten-year liability after acceptance
of the works; and the mandatory having reviewed this duty to advise, which is
regularly the cause of dispute
insurance scheme. We refer
chiefly to French law, which is
the technical and arbitration when common
often relied on in litigation and specifications.’ law and civil law cultures are
arbitration in other civil law both involved, we propose a
countries. Those three elements, which are brief review of the case law of the last decade.
comprised of several regulatory provisions and For instance, the contractor may have a
leading case law, cannot be contracted out of duty to advise the employer regarding:
(with marginal exceptions of course). They are • the choices made by the owner about a building
of particular relevance to contractors, engineers product that did not comply with other parts
and architects from common law countries who of the works (CA Paris, 25th chamber A, 5 July
intend to conduct their activities in civil law 2002; JurisData No 2002-187625);
countries since several contractual provisions • difficulties that may arise with the materials
with which they are familiar and may sometimes or equipment provided by the owner (CA
consider standard may be unenforceable and Dijon, 3 September 2002, JurisData No
‘deemed to be non-written’. 2002-187288 (solution already established
since Cass Civ 3, 1 July 1971, No 67-13789,
Bull Civ 1971, III, No 439 and Civ 3,

22 CONSTRUCTION LAW INTERNATIONAL Volume 7 Issue 2 June 2012

 20 June 1995, No 93-15801, Bull Civ 1995, liability as well as the nature of the defaults
III, No 276); which affect the strength of the work and
• renovation works that are bound to fail render the works unfit for their purpose. For
(Cass Civ 3, 8 June 2010, No 09-15276); instance, it has been decided that this could
• works that would lead to a dangerous include, depending upon the situation,
situation if put to their intended use (Cass general corroding of the central heating
Civ 3, 6 July 2010, No 09-66757); and system; the existence of pests such as
• sound isolation matters (Cass Civ 3, 15 capricorn beetles, coleoptera beetles, or
February 2006, No 04-19757, Bull Civ 2006, other xylophagous insects; and fissures or
III, No 37). cracks of a certain threshold.
In the above situations the owner must, The scope of liability of ‘technical
however, establish a causal link between any controllers’ who do not participate in the
breach of the duty to advise and design of the work itself has
inform by the contractor and ‘... many given rise to various
any resulting damage (Cass Civ developments in the law. In
3, 16 June 2009, No 08-14046).
traditional clauses essence, they are only liable if
in international it is demonstrated that
damages are attributable to
Contractors’, engineers’ common law and them. In addition, they can
and architects’ strict
liability for ten years and international resist the obligation to pay on
behalf of another party held
the practical consequences
thereof
contracts which jointly liable when that party
is bankrupt.
In accordance with Articles 1792
limit, for instance,
and 2270 of the French Civil the liability of Mandatory insurance for
Code, ‘builders’ are strictly liable
for ten years for acceptance of the the engineer or decennial liability
works if damage occurs, which
relates to the strength of building
architect to the The consequences of decennial
liability, which are extremely
of the works (or of one of their amount of their protective of the employer and
constituent parts) and renders the owner as a matter of principle
them unfit for their intended
fees or that exempt and which represent a high level
purpose. This liability attaches them from liability of risk to the contractor, the
even when the damage is due to engineer and the architect, were
subsoil defects. The benefit of for immaterial not always realised in practice,
such liability is transferred to any
new owner during that period.
damages are inter alia, due to the risk of
possible bankruptcy.
This far-reaching liability is, indeemed to be void’ An insurance market
addition, joint and several as progressively developed but
between all participants of the building process, the coverage was not always satisfactory and
that is, contractors, architects, engineers of all sometimes not even possible. As a result, in
kinds, etc, provided that they all have been 1978, a new provision was introduced into
involved in the performance of the portion of the Insurance Code (Article L.241-1)
work in which the damage occurred. providing that any person who may be subject
It is important to note that, according to to decennial liability must be insured. Failure
Article 1792-5 of the French Civil Code, the to take mandatory insurance results in a
strict liability is of public order nature. As a criminal penalty of up to six months in jail
result, under French law – and in other civil and a €75,000 fine.
law countries having similar provisions – The Insurance Code also provides for the
many traditional clauses in international obligation of the ‘builders’ to prove to the
common law and international contracts employer upon commencement of the
which limit, for instance, the liability of the works, and at any time during the
engineer or architect to the amount of their performance of the works, the validity of the
fees or that exempt them from liability for mandatory insurance for the liability.
immaterial damages are deemed to be void. In order to guarantee full coverage for ten
The case law has progressively defined the years, notwithstanding the termination of
nature of the works subject to decennial the insurance contract, the Code provides

CONSTRUCTION LAW INTERNATIONAL Volume 7 Issue 2 June 2012 23

 FEATURE ARTICLE

that any contract subscribed for covering organisation of the contracting industry in
decennial liability is deemed to include a France and in many civil law countries, which
clause providing for the whole coverage of is more vertically integrated than in common
the ten-year period. law countries and which have long been
Since the insurance premium for decennial familiar with design-build, turnkey and so-
liability is generally considered reasonable called Engineering, Procurement and
(it ranges from about 0.8 to two per cent of Construction Management (EPCM)
the cost of the works depending on the contracts (and which, due to the above
nature of the works undertaken and their framework, do not necessitate generally
correlative risks), the ten-year liability regime complex contractual provisions).
is not seen in practice as an obstacle to the
contractor, the engineer or the architect,
while it is very advantageous to the employer. Notes
1 Article 7.7 of the Association Francaise de Normalisation
This system does not give rise to many
(AFNOR) (French Association for Standardisation)
disputes since, in practice, most of the claims standard form NF P 03-001 on private procurement
are settled with the underwriter. for works.
In sum, those principles and provisions
which cannot be easily departed from by the
contract conditions have an impact on
quality and sustainability and consequently
Marc Frilet is Managing Partner of Frilet – Société
on the price of the works.
d’Avocats, Paris and Laurent Karila is Managing
To conclude, it may be observed that the
Partner, Karila – Société d’Avocats, Paris.
system described above has influenced the

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