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
1 Anthony Lavers is Visiting Professor of Law at King’s College, London and Research Consultant at Crown Office Chambers, Inner Temple. Rebecca Shorter is a Partner at White & Case, Paris. She is a Solicitor (England and Wales) and a member of the Paris Bar. This article is based upon a joint presentation by the authors to the European Society of Construction Law Annual Conference at the University of Copenhagen on 6 October 2023. The authors are grateful for the research assistance provided by Sarah Peloux and Domenico De Martino in the preparation of the presentation.
2 Winter, J, “Duty to Warn” in Legal Obligations in Construction, eds Uff, J and Lavers, A (1992), Centre of Construction Law and Management, King’s College, London, p 399.
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