This “in solidum” liability* is still a sensitive topic in the construction sector. It seems logical to an outsider for architects to agree in their contract with the property developer that he/she can only be held liable for any damages he/she personally causes, and not to be held liable for any damage caused by the contractor.
A ruling of the Court of Cassation** (pronounced on 5th September 2014) in a construction dispute has shed light on this contractual limitation:
“Article 1792 of the Civil Law Book stipulates that, if a building constructed for a
set price is wholly or partially destroyed due to an error in the construction process, including the unsuitability of the site, the architect and the contractor shall be liable for it for a period of ten years.
The architect’s ten-year liability period, which stems from this legislation, is public policy and cannot thus be precluded or restricted by a contractual agreement.
The clause whereby the architect, in case of errors concurrent with the contractor, is indebted to the master builder solely for his/her part in the damage which is the subject of the compensation claim, implies a limitation of the architect’s liability towards the property developer on the basis of art. 1792 of the Civil Law Book and inasmuch is in conflict with public policy.
With this verdict, the Court of Cassation confirmed that “in solidum” liability is public policy. That means that this clause cannot be eliminated by means of a contract and therefore the architect can always be held liable for compensation for the entire amount of damages, even when these are partly caused by the contractor. Any contractual provisions which restrict this liability are therefore void.
Consequently, it is essential for architects to take out insurance for sufficiently large amounts of capital. For major construction projects, we advise you to opt for a professional liability insurer with considerable financial capacity.
* Some construction defects are the result of errors both on the part of the architect and the contractor (“concurrent errors”). With the “in solidum” liability principle, the property developer may, in theory, hold both the contractor and architect liable for compensation for the full amount of the damages (and not just for their part in the damages). In order to restrict their liability, architects often include a clause ruling out their “in solidum” liability when drawing up a contract with a property developer.
** The verdict only applies defects which threaten building stability.
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