Fitness for purpose clauses impose a duty on a contractor to achieve a specific result.
They have come under scrutiny as a result of a series of cases in the English courts which imposed significant damages onto a contractor, in complex factual scenarios [read more].
This post considers the MF/1 rev 6 (2014) contract.
MF/1 2014 (rev 6)
The starting point is this clause:
Unless otherwise provided in the contract, the contractor does not warrant that the works as described in the specification or the incorporation of the works within some larger project will satisfy the purchaser’s requirements [13.3]
This is a statement that generally the contractor does not guarantee that the works will be fit for any purpose set out in the purchaser’s requirements. However, it does include a ‘get out of jail’ introductory phrase ‘unless otherwise provided in the contract’.
Does the contract otherwise provide?
The MF/1 conditions of contract do not require the contractor to carry out the works to meet the purchaser’s requirements. Instead of vague phrases as to fitness, the works have to meet three phases of tests: pre-delivery, on completion and after completion to prove their suitability for the client’s needs. Each of these tests come with remedies for failures, including rejection.
In addition, clause 36.9 states that the defects liability period is “in lieu of any contract terms implied by law as to the quality or fitness for any particular purpose or the workmanship of any part of the works…”
Even if MF/1 did include a fitness for purpose obligation – for example in the purchaser’s requirements rather than the conditions – the limits on the contractor’s liability under clauses 44.2 and 44.3, the exclusive remedies clause under 44.4, and a complete end to defects liability after 3 years under clause 36.10 would tend to mitigate against such claims.
MF/1 replaces vague ‘fitness for purpose’ legalese with technical requirements proven by testing and backed up by limits on the time and amount of the contractor’s liability. This provides clarity for the parties that the technical requirements set the quality standards to achieve.