Those who do not guard, bleed.

Violation of the duty to warn can lead to liability and conflict in a construction project. Matters that all involved in a construction project would like to avoid. In this article, Construct Lawyers discusses a number of warning obligations.

The general duty to warn

The basic principle is that a client is responsible for the contract. Errors in specifications, drawings or execution regulations originating from the client are therefore in principle the responsibility of the client. In principle, because the contractor's duty to warn may cause this division of responsibility to shift to him. 

Indeed, the contractor is obliged to warn the client about the aforementioned errors, insofar as he knew or reasonably should have known about them. The expertise of the contractor plays an important role here: the more specialist knowledge the contractor has, the more quickly he can be expected to discover an error. 

Violation of the duty to warn results in the contractor becoming liable for the resulting damages. Another consequence may be the rejection of any additional work, if timely warning could have prevented that additional work. 

Additional work

The contractor also has a duty of warning in the event of additional work. Additional work occurs as soon as the client wishes additions or changes to the agreed work. If there is additional work, the contractor can in principle only claim an increase in the price if he has informed the client in good time of the need for a resulting price increase.

Case law shows that this duty to warn is quite demanding. Before performing the additional work, the contractor must provide the client with as realistic an insight as possible into the concrete additional costs to be expected. If he fails to do so, the contractor cannot claim a price increase.

Target price

If the parties agree on a target price, the law provides that that target price may not be exceeded by more than 10%. Again, unless the contractor has warned of such an overrun. If he does not, then he cannot charge for the excess. There are cases in case law where the contractor even had to refund amounts already received.

Cost-increasing conditions

After the conclusion of the contract, cost-increasing circumstances may arise. These are circumstances that the contractor has not factored into the price, nor are they attributable to him. Such circumstances can lead to a price adjustment of the work, provided that the contractor did not have to take the likelihood of this into account when determining the price.

Again, the contractor can only claim a price adjustment if he has warned the client. Also with this price adjustment, the contractor must warn before the cost-increasing circumstances are carried out. Thereby, it is necessary to specify the extent of the cost increase at the time of warning.

In conclusion

Our advice is to always warn in writing. Also make sure that the warning is sufficiently specific and (that it) does not lack clarity. State what you are warning about and what the consequences are of what you have observed. Because: he who guards, does good.

More information is available from Construct Lawyers.