Responsibility of contractor and subcontractor

Liability of the contractor and subcontractor for serious defects in the work

In case of procurement e subcontracting who is required to compensation for damage for i serious defects of the work? He tells us there Court of Cassation with the recent ordinance no. 24052/2021.

A particularly felt problem in the case of construction of a work is that concerning any discrepancy O vices from which it may be affected.

The matter is governed by the civil code, subject to continuous interpretations by the jurisprudence.

With regard to the subject dealt with here, the above-mentioned sentence with which the Supreme Judges clarify the responsibilities of the contractor, subcontractors and project managers in the event of serious defects of the work.

Let’s go in order and see what the law says.

The denunciation of discrepancies and defects

When it comes to defects, it is necessary to distinguish the discrepancies and defects of the work from those that are serious construction defects.

In case of discrepancies and defects, the reference legislation is the article 1667 of the civil code.
According to the law, the contractor is required to provide warranty for the discrepancies and defects of the work.

In order for the rule to be operational, the client must, under penalty of forfeiture, report the discrepancies or defects to the contractor within the deadline. 60 days from the discovery.
Only if the contractor has recognized discrepancies and defects or if he has concealed them, the complaint is not necessary.

The guarantee is not due by the contractor if:

  • the client has accepted the work;
  • if the discrepancies and defects were known or recognizable by him, provided that in this case they have not been silenced by the contractor in bad faith.

The terms for action against the contractor

According to the article 1667 civil code the action against the contractor is prescribed within the term of two years from the day of delivery of the work.

What is the guarantee provided by the contractor

When the client invokes the contractor’s guarantee due to the discovery of discrepancies and defects, he has a series of safeguards available.
Let’s see which ones.

In the first place, the client can ask that the discrepancies and defects exist eliminated at the expense of the contractor. Secondly, if the client has an interest in maintaining the work, he can ask for the price to be proportionally reduced.

The compensation for damage immediately by the client if the fault of the contractor is ascertained.

Finally, the customer can request the resolution of the contract if the discrepancies and defects in the work are such as to make it completely unsuitable for its destination.

Serious defects of the property

We come to the situation that gave rise to the sentence of the Supreme Court examined here. In the case considered we are faced with serious defects of the construction whose discipline is contained in the article 1669 of the civil code.

The reference standard contemplates the case in which they are ascertained soil vices O construction defects which involve:

  • total ruin O partial of the work;
  • danger of ruin O serious defects of the same.

In this case thecontractor And responsible towards the client if the damaging events described above occur within 10 years from the completion of the work.

The contractor’s liability exists towards the client but also towards any successors in title.

The complaint and action against the contractor

Even in the cases described above, there are deadlines to be respected.
The complaint of the client or the successor in title must be submitted within the deadline of one year from the discovery.

Regarding theaction exercisable against the responsible contractor, it is specified that it is prescribed in one year from the complaint.

The same rules as described for discrepancies and defects apply to contractors. As we will see by examining the sentence of the Supreme Judges in the case in question, subcontractors and construction manager are also involved.

Serious construction defects: who is required to pay damages

The matter examined by the Court of Cassation originates from the sentence on appeal against contractor, subcontractor e construction manager per serious defects of the work due to construction defects, as governed by article 1669 of the civil code.

Subcontractor Liability
The subjects in question had been sentenced to makeover of all the screeds of the entire flooring of a building due to construction defects of the same and, in the event of non-compliance, the payment of the compensation for damage.

According to the plaintiffs who contested responsibility, the one-year deadline from the discovery of the serious defect for making the complaint as required by the aforementioned reference rule would not have been respected.

The judges of legitimacy reject the appeal. Let’s see why.

Beginning of the reporting period

In case of serious defects of the work, the deadline for filing the complaint starts only from the moment in which the client has had certain knowledge of the defects.

This awareness can be considered reached only when these defects have manifested themselves in all their gravity and certainty has been acquired by means of adequate technical investigations.

Only with a technical report it is possible to acquire full knowledge of the phenomenon, its extent and the causes of the harmful event.

The subcontractors

What are the rules in case of subcontracting?

If the execution of the work has been subcontracted, on the basis of what is established by the legislator, the contractor may act in return against the subcontractors if, under penalty of forfeiture, it has to them press release the notification of the discrepancies and defects has been made within 60 days from receipt of the same.

Serious construction defects
Returning to the case in question, from this point of view the Supreme Court affirms that the failure to communicate the complaint does not exempt the subcontractor from responsibility since participation in the procedure for technical assessment not only of the contractor, but also of the subcontractor no longer makes the report required by the ‘art. 1670 of the civil code.

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