Dr. Wafa Al Janahi
Assistant Professor of Civil Law
College of Law – University of Bahrain

Abstract:

Decennial liability is a warranty period for ten years that applies in construction contracts in favour of the employers by virtue of Article 615 of the Bahraini Civil Law Code; under which both the engineer and the contractor will be jointly liable to make compensation to the employer for any partial or total collapse or for any structural or safety defects which threatens the stability or safety of the building for ten years from the time of delivery unless the contract specifies a longer period. Decennial liability is part of public policy and, thus, it cannot be excluded or limited. However, the period can be shorter only in cases where the building or establishment is intended to last for less than ten years. In fact, decennial liability occurs when there are construction contracts (Muqawala contracts) concluded between an employer (the owner of the land) and a contractor or an engineer/architect. Hence, it is questionable whether decennial liability exist under the so called “off-plans sales”.
Buying a house or unit before the building works have been completed is known as “buying off the plan”. In Bahrain, most real estate developers tend to sell premises on map (off-plan sales) or shortly upon completion. In some cases, construction may have partially started. That is, off plan sales are usually made after the construction contract is signed. Off-plan sales are concluded between the real estate developers and the vendors of the properties/unites. Therefore, it is questionable whether the developer can be held liable towards the vendor in terms of decennial liability.
Under Bahraini Law No. 27 of 2017 with respect to regulation of the real estate sector in Bahrain, the developer shall be liable for structural defects which appear in the common property up to ten years commencing on the date of his receipt of the completion certificate for the project he has developed (Article 71). But what if the main developer (i.e a businessman) referred the full or part of the construction work to a sub-developer(s) (or a subcontractor(s)), will the ultimate vendor be able to bring action against the sub-developer(s) (or the subcontractor(s)) having in mind that the vendor is not a party to the construction contract.
This papers argues that the ultimate vendor can bring a direct action, as a special successor, against the contractor based on decennial liability according to Article 134 of the Bahraini Civil Law Code which states that “If the contract gives rise to personal rights connected with a thing transferred thereafter to a special successor, such rights shall be transferred to such successor at the time at which the thing is transferred if it is one of the appurtenances thereof and the special successor was aware of those rights at the time of the transfer of the thing to him.” Article 134 addressed the contractual rights transferable to a special successor. Under this meaning, one may strongly argue that the right for warranty period arises of decennial liability is a contractual right that is transferred to the last owner upon the passage of title.

Keywords: construction safety, building contracting, construction defects, responsibility of the contactor, responsibility of the engineer.

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