Liability of the Contractor and Designer for Structural Integrity of the Building

Abstract

Bearing in mind the highly dynamic construction process in our region, which is inevitably accompanied by an increased number of damages—both during the execution of works and after the completion and handover of the construction object to the client—an analysis of defects that threaten the stability and safety of the structure, as well as an analysis of liability for their occurrence, seems to be of particular importance. The liability of the contractor and the designer for the structural integrity of a building represents the strictest form of contractual liability which, due to the protection of public interest, is of an imperative nature and cannot be limited or excluded by an agreement between the parties. Although, as a rule, the principle of individual liability applies—under which the contractor and the designer are liable both to the client and to any subsequent purchaser of the building individually, each for their own faults—in exceptional circumstances of so-called factual co-causation of damage, where it is precisely known what each participant in the construction did, but it is impossible to determine the extent of each party’s contribution to the damage, the rules of joint and several liability of the contractor and the designer apply. In court proceedings, the crucial evidence for establishing damage caused by building defects is the expert report of a court-appointed construction expert, which must answer whether the building is defective, to what extent and degree, what the cause of the defects is, what the amount of the caused damage is, and primarily what type of defect is in question—qualitative defects or defects that jeopardize the structural integrity of the building. This categorization represents a conditio sine qua non for the legal qualification of the dispute, as it determines which limitation period, the two-year or ten-year period, will be applied in the specific legal matter. Of exceptional importance for the qualification of building defects, and thus for determining the liability of the contractor and/or designer, are the positions of both domestic and extensive comparative case law, which will be presented in this paper.