Disputes arising on modern day construction projects typically involve extraordinarily complex factual scenarios, technical issues and legal issues. Were the ancients concerned with how to resolve problems involving construction? The principles of law pertaining to the built environment can be traced back several thousand years.
The earliest known principles of construction law can be found in the Code of Hammurabi. Hammurabi was the sixth king of Babylon and ruled from 1792 BC to 1750 BC. The Code of Hammurabi contained 282 laws inscribed on twelve stone tablets which were placed in public view.
Hammurabi’s Code established the concept of civil damages, whereby one must pay compensation for defective work – a concept that has survived to this day. The code clearly recognized a responsibility of works risk, care of the works, the site and to work with skill care and diligence. One of the first building codes were “published” in Deuteronomy 22:8
When you build a new house, make a parapet around your roof so that you may not bring the guilt of bloodshed on your house if someone falls from the roof.
Clause 7.2.1 of the GCC 2015 provides as follows:
Clause 11.2(5) of the NEC 3 (Option B) Definitions provides that a Defect is:
A part of the works which is not in accordance with the Works Information*
Or
A part of the works designed by the Contractor which is not in accordance with the applicable law or the Contractor’s design which the Project Manager has accepted.
* The Works Information specifies and describes the works and this document should therefore provide all drawings and specifications to be complied with. “Works Information” was changed to “Scope” in the NEC4.
Clause 1.1 of the JBCC Definitions provides as follows:
Any aspect of the materials and workmanship forming part of the works that does not conform to the agreement and/or construction information.
In other words, if the workmanship or materials do not comply with the documentation (the contract, drawings, specifications, and the like) that constitutes the agreement, it is considered defective.
To allege and prove a defect, the drafter and compiler of the tender and subsequent contract documents must ensure that all matters relating to materials and workmanship are clearly specified as well as the criterion to measure compliance (or not). In the absence of clear specifications or drawings, a contractor may rely on “acceptable industry standards” which may not be sufficient or acceptable to the Employer under the Contract.