Many disputes in the construction industry are about the quality of the finished project. Did it meet the parties’ explicit and implicit expectations and objectives? To take just a few examples:
- Should a TV mast have remained standing on Emley Moor, Yorkshire so it could transmit TV signals in snow and hail?
- Should the Torre de Pisa have leant, even before it was completed?
- Should the Millennium Bridge have wobbled when pedestrians crossed the River Thames, London?
- Should the spires on the churches at Chesterfield, England or Verchin, France have twisted?
Two measures of quality
Your contract needs to distinguish between two measures for quality:
- an input measure (the level of expertise the supplier should use) eg ‘reasonable skill and care‘ and
- an output measure (the extent to which the finished project does what was asked of it) eg fitness for purpose.
What these terms mean may depend on context or may be entirely subjective. For example, reasonable skill and care only requires your supplier to be averagely competent, based on current industry standards, and act in accordance with generally accepted industry practices. Fitness for purpose is highly relevant in the engineering sector (where it co-exists with objective measures, testing and limits on the supplier’s liability) but less so in pure construction.
Unless your contract explicitly says so, the supplier is not guaranteeing that the goods, works or services will achieve your/your client’s desired result.
Nothing doing?
If your contract is silent on the fitness of works, quality of goods and materials, or performance standards required for any services, it will have enough certainty for a contract.
Terms will be implied by English law (cases or legislation) so that:
- goods will be of satisfactory quality,
- goods will be fit for their intended purpose (provided the supplier knows their purpose and it is reasonable for you to rely on your supplier’s skills in selecting those goods), and
- works and services will be carried out with reasonable skill and care.
Implied terms are rarely enough and you should not rely on them. They:
- create the least onerous obligation that the contract needs to be workable – and that is often a low bar, the bare minimum,
- may not reflect the quality standards needed to meet you/your client’s aims or measures for success,
- they are open to debate as to what they really mean – what purpose was known by your supplier?
What should you do?
Clarity helps your supplier to know with certainty what it is being asked to do and minimises the risk of unsatisfactory performance or defects – which often result from poorly defined or poorly met quality standards.
Keeping it simple at the start pays dividends for the whole life of the project (which in construction can be many decades).
This post is based on a chapter in the five books in the series on Construction Contracts in Just 500 Words (Chapter 10 for collateral warranties, Chapter 12 for small works contracts and subcontract agreements, Chapter 14 for letters of intent and Chapter 16 for consultant appointments). Each of these chapters also illustrates the perils of getting it wrong, based on a real-life case study, as well as how you can write it simply.
