The contractor must not only inform, but (sometimes) also warn and react!

Author: Gregory Vermaercke

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A building contract implies a large number of obligations for the contractor, including an information obligation towards the client and other contracting partners.
 

The contractor's obligation to provide information means in the first place the provision of information regarding the building contract. However, this obligation to provide information extends even further to an active obligation to advise and guide, which may even entail a warning or response obligation on the part of the contractor.
 

Thus, the Commercial Court of Leuven ruled as follows in its judgment dd. October 6, 2015:
 

“As a specialist contractor, plaintiff had a duty to advise. The claimant should have informed the defendant that a permit was required for the intended works.The information obligation is not limited to providing information about the contract itself,mThis sometimes also takes the form of a duty to warn or respond. Plaintiff should have ensured that the urban planning permit was in place before starting the work. Moreover, plaintiff should have alerted the defendant to the risk that local residents would complain about noise nuisance.”
 

This shows that the contractor, by means of his obligation to provide information, must not only ensure that the client is adequately informed about the work to be carried out, the price and the estimated completion time. The contractor must also actively assist the client throughout the entire project. For example, if a contractor notices shortcomings in the design and deems additional measures appropriate (e.g. with regard to noise), he must at least point this out and warn the client about this.
 

This investigation/reporting and warning obligation may even lead to the contractor having to refuse to carry out the work requested. This may be the case when the contractor determines that the design is incorrect and/or when he knows that the assignment cannot be carried out in a professional manner. The scope of the obligation to provide information that rests on the contractor varies depending on whether or not one is a specialist in the field, in which case the fulfillment of the information obligation is generally assessed more strictly. A contractor specialist therefore has increased vigilance and caution when accepting/carrying out an assignment.

 

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The information obligation of the contractor.

 

 

As a client / client, you can appoint a contractor to carry out works or repairs. In addition to his obligation to carry out the work, the contractor also has an information obligation.The contractor may not carry out the works he has to carry out slavishly and without any communication. The contractor must inform, warn and, if necessary, refuse the client. This obligation runs both before and during the agreement.

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Before concluding the agreement

 

A (contracting) agreement does not just come about. This is preceded by discussions in which the client explains what his expectations are. The contractor must listen to this and draw up an agreement that meets these wishes. When the agreement is concluded with a consumer, additional information obligations apply. This means that the agreement provides information in a clear and comprehensible manner about, among other things, the total price, the method of payment, delivery and performance ... A consumer is understood to mean   every natural person who acts for professional purposes.

For example, if the contractor knows that you attach great importance to sound-insulating windows, he will make a mistake by providing windows that are not sound-insulating.

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While performing the works.

 

Once the agreement has been concluded, the contractor also bears a responsibility. He may not simply follow orders (from the client or architect), but must inform, warn and, if necessary, refuse.

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• To inform.

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Just as before concluding the agreement, the contractor must sufficiently inform his client during the works. For example, the current costs will have to be communicated. With regard to costs, it can also be pointed out that when an architect intervenes, the latter must advise against a cheaper solution if it will not lead to the desired result, is dangerous or does not work as it should. In this case, the contractor will only have this obligation insofar as he has technical knowledge about this.

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For certain works, you (as the client) must also call on an architect. The latter must ensure that the structure is sufficiently strong and is built on suitable ground. The contractor cannot therefore be held liable if the site was not suitable. If you choose not to appoint an architect, you are responsible for any conceptual errors and must bear the consequences if there was insufficient supervision. However, some case law considers that the contractor is also partly responsible in that case. 

The client will also have to provide sufficient information. If he wishes to carry out certain works, he will have to communicate them. Not communicating certain information can therefore lead to shared liability.

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•  Warn.

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Not only during the works, but also during the term of the ten-year liability, the contractor has a warning obligation. In assessing whether this duty is fulfilled, the fact whether a contractor is a specialist in his field will play a role. For example, if there are major errors in the plan and in the specifications, the contractor must point this out. If he is not a specialist, the court will be less strict and less likely to rule that the contractor must also bear (part of) the damage.

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If the contractor receives instructions that are incorrect or will not lead to the desired result, he must report this. Just like the risks associated with certain methods and/or materials. If the client is aware of these risks, this warning obligation does not apply, but some believe that the contractor should nevertheless make a reservation.

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• Refuse.

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It is always possible that a contractor thinks that a certain assignment cannot be completed successfully. In that case, he must refuse this assignment or at least report the risks (in writing). Failure to do so may result in the contractor being held liable for the consequences.

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