i-law

International Construction Law Review

A CONTRACTOR’S DUTY TO WARN OF DEFECTS IN DESIGN: COMMON LAW AND CIVIL LAW APPROACHES COMPARED

PROFESSOR ANTHONY LAVERS

Visiting Professor of Law, King’s College
AND

REBECCA SHORTER1

Partner, White & Case, Paris

I. INTRODUCTION

The purpose of this article is to consider the existence of a duty upon a contractor to provide a warning of defects in a design which it has 
been given to build and the extent of any such duty. The concept is that a contractor may become under such a duty where it knows or ought to know of the design defect. It should be made clear at the outset that this article refers to the employer design, or traditional procurement model, as, for example, in the FIDIC Red Book, and not to design and build, where the contractor is self-evidently responsible for design.
The source and content of the obligation cannot be assumed to be constant across jurisdictions and the article offers a comparison between the position at common law, with particular reference to English law and that under civil law, taking French law as the example, with some 
additional reference to Italian law. The intention is to provide an up to date cross-jurisdictional account of the subject.
One of the earliest assessments of the then status of the duty to warn by Jeremy Winter at the 4th annual King’s College Conference in 1992 included brief reference to the position in the Netherlands, Italy, Germany, Spain and the US.2 The subject has not been fully addressed in ICLR for

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