Constructing Railways in the UAE: Liability for Defective Work
Type
E-journal
Date
9 Apr 2015
Jurisdiction
United Arab Emirates
Taxonomy
Rail, General Tort, General Contract Law
Copyright
LexisNexis
Relevant company
Clyde & Co
Legal reference
Federal Law No. 1/1987, Federal Law No. 5/1985, Qatar Law No. 22/2004, Kuwait Law No. 67/1980, Article 76 of Saudi Arabia Ministerial Decision No. 223/1427
Analysis
Unless defined by contract, a “defect” is not a term of art; it relates to the concept that works do not conform to contract requirements. Defects encompass defects in workmanship and materials, and design defects. In relation to defective work, a contractor will, depending on the nature/extent of the defect, potentially (1) assume obligations to its employer pursuant to the defects liability clauses of its contract, (2) be liable to its employer in damages for breach of contract, and (3) be liable to its employer under the decennial liability provisions of local law.
Contractual defects liability
Most industry standard construction contracts contain “defects liability” clauses. These clauses oblige a contractor to return to site and remedy any defects in its works that are notified by (or on behalf of) an employer within a certain time period calculated from the date on which the works are certified as complete in a taking-over certificate. In a rail project, the defects liability period may be 24 months or longer. The employer frequently withholds a portion of the contractor's retention money until the expiry of the defects liability period.