Periods of liability for defects - also known as correction provisions - can benefit both parties.

It will probably be more economical and efficient for the contractor to carry out the repairs themselves than to pay the costs of another contractor hired by the employer. From the employer's point of view, it will not be necessary to hire an alternative contractor to carry out the work, or to carry out the work itself and reimburse the costs. The employer will also not risk that any warranties provided by the original contractor may be affected by a third party carrying out the work on site.

If the contractor has the right to rectify deficiencies, and the employer either does not notify the contractor of the need for rectification, or refuses access to the site, the employer may violate the terms of the contract. Case law, however, shows that a contractor will generally not "release the hook" if this happens. The employer will still have a claim for the cost of correcting the deficiencies, but this claim is likely to be limited to the amount it would cost the original contractor to carry out the work. He will not be able to demand corrective work or methods of work that are not strictly necessary.

Therefore, employers should carefully consider the provisions of the contract before hiring a new contractor to carry out repair work. This is particularly important if the contract stipulates that the employer must notify the original contractor that corrective work is required before he can claim any rectification costs.

What to do if there is no contractual provision for the elimination of defects?

If there is no contractual provision, the contractor has no right to return to the site to correct defects. However, the general obligation of the employer to mitigate its losses before filing a claim by taking reasonable steps to avoid or reduce them means that its losses may be limited if it refuses to allow the contractor to rectify the defects - especially where defects are relatively insignificant. If the contractor's initial work was low, the employer may argue that it was prudent to refuse to allow the same contractor to return to the site. In deciding whether it is reasonable to refuse a contractor's permission to return to the site, the court may take into account the severance of relations between the two parties.

Are Defects Disclaimer Exclusive?

The provisions on liability for defects are not the exclusive remedy, unless the contract clearly states that there are no other enforcement agreements. The contractor is responsible for breach of contract.

Conclusion

Periods of liability for defects will arise only if they are included in the contract. Therefore, contractors should keep in mind that they do not have the automatic right to return to the site to correct any defects. Employers should carefully consider the wording and requirements of the troubleshooting regulations when considering hiring another contractor to correct the contractor's initial errors.