Guarantees of the Contractor and the Engineer in Building and Construction Contracts after the Completion of Construction in the Bahraini and Comparative Legislation
Prof. Mohammad Yousef Al-Zoubi
Professor of Civil Law – College of Law – University of Bahrain
This research deals with the most important issues of the contracting agreement by studying the responsibility of the contractor and the engineer for the total or partial demolition of the building or construction after their completion in the Bahraini and comparative legislations. Among the problems raised by this research is the derogation of its provisions from the rules in the field of contractual liability that allow obliging the debtor with the liability of force majeure or the agreement to exempt the debtor from any liability resulting from failure to implement the contractual obligation. It has obligated the contractor and the engineer with the responsibility for the demolition of the building even if the demolition is due to a defect in the ground, of which the contractor and the engineer were unaware of. Also, it stated that it is not permissible to relieve them of the responsibility if the defect results from a defect in the ground.
The scope of the research is limited to guaranteeing the contractor and the engineer for damages that occur to the building or construction after their completion and not before, so that damages that occur to the building during constructions are excluded from this scope. This has been dealt with through two sections. The first section focuses on the guarantee of the contractor and the engineer in the construction after their completion in the Bahraini and comparative legislations. The second section examines the ten-year guarantee that the contractor and engineer are bound by in the Bahraini and comparative legislations, by adopting the descriptive, analytical and comparative approach.
Among the most important findings of the research are: that the ten-year guarantee guaranteed by the contractor and the engineer may not be reduced by agreement, but rather it can be increased by ten years for the benefit of the employer, and that the ten-year guarantee is a statue of limitation that shall not be suspended or interrupted. Another finding is that the ten-year guarantee is governed by the rules of contractual liability even after the end of the contracting agreement. Additionally, the term “engineer” as it appears in the Bahraini law includes the architect and other various engineering disciplines. The research offers a number of recommendations for the Bahraini legislature: the beginning of the ten-year guarantee shall be amended to start from the time of completion of construction to the time of delivery, and that the solidarity between the contractor and the engineer is not limited to solidarity in responsibility but must extend to include solidarity in the guarantee as well.
Keywords: decimal guarantee, contracting agreement, defect in ground, solidarity in liability, solidarity in guarantee.