If you’re not in the construction industry you may not know what a collateral warranty is. You can think of them as a ‘gift receipt’.
If your aunt buys you a new laptop, she might not want you to know how generous she has been, but she does want you to be able to get it repaired or replaced if it doesn’t work. The contract for the sale of your laptop was between the shop and your aunt. You have no rights to enforce that contract because you were not a party to it (called privity of contract). However, the gift receipt enables your aunt to pass her rights to repair or replacement onto you.
On construction projects, a collateral warranty allows a company with a financial investment in a property – such as the bank who funded it, the business buying it or part of it, or a retailer who is paying the rent on it – to claim compensation against those who provide goods, works or services for that property, when and if it is defective. Whether that is because the water-cooling system leaks, the supermarket car park is defective, or there is damp in your newly refurbished property.
If you are the provider of goods, works or services (party B in this diagram), giving a warranty feels like you are increasing and spreading your risk. But warranties are impliedly (and often expressly):
- Time-bound ie company C must bring any claim within contract 1’s limitation period
- Limited ie company C cannot claim more compensation than party A would have claimed
- Collateral ie company C’s claim is dependent on the terms of contract 1.
Warranties (and their cousin, third party rights) are a key part of the complex web of construction contracts and many investors are unwilling to forego their potential benefits. So, plan them into your risk analysis from the start.
What should you do?
Check the critical questions you should ask before you ask for or provide warranties. If you’re not sure, get a review (they’re pretty cheap … just ask for my fixed price). You can find out everything you don’t understand about warranties in my book.
The alternatives (allowing you to avoid warranties) might be preferable, if you have the bargaining power to negotiate this – ideally you should raise this at tender stage.
