Q&As

Should a contractor accept a fitness for purpose obligation?

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Published on LexisPSL on 26/11/2015

The following Construction Q&A provides comprehensive and up to date legal information covering:

  • Should a contractor accept a fitness for purpose obligation?

Should a contractor accept a fitness for purpose obligation?

A fitness for purpose obligation in a construction contract is more onerous than an obligation to exercise reasonable skill and care. Fitness for purpose denotes an absolute obligation to achieve a specified result. Breach of a fitness for purpose obligation by a contractor does not require the employer to prove that the contractor has been negligent. Therefore, regardless of whether the contractor has been negligent, if it accepts a fitness for purpose obligation, and it breaches the obligation, then it will be liable to the employer for damages. See Practice Note: Fitness for purpose in construction contracts for more information about fitness for purpose obligations.

The first thing to remember is that the contractor is already subject to a fitness for purpose obligation in respect of the materials it supplies in relation to the works (unless the contract expressly provides otherwise). This is by virtue of the Supply of Goods and Services Act 1982, s 4(4) and 4(5) (SGSA 1982) which implies a term on the supplier of goods that, where the purchaser makes known to the supplier any particular purpose for which the goods are being supplied, the goods will be reasonably fit for that purpose. This is unlikely

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