What Is Fitness For Purpose In Construction?

What Is Fitness For Purpose In Construction
What is fitness for purpose? ‘Fitness for purpose’ is a phrase used to describe the concept that goods or services must be capable of being used for the intended purpose for which they were purchased. In a construction context, the phrase is usually used when a contractor promises that its works are capable of being used in a way that the principal intends for them to be used.

by an express term in the contract; by implication of the common law; and by implication of statute.

This chapter examines how fitness for purpose requirements arise and the consequences of the requirement. : What is fitness for purpose?
Fitness for purpose – the starting point – Meaning It is commonly understood that the effect of a fitness for purpose obligation is to impose a duty of result. Accordingly, if a warranty is given that particular works or design will be fit for its intended purpose then the contractor or designer (or design and build contractor) will be held to that obligation, regardless of the reason why the works or design does not meet its intended purpose.

In other words, matters beyond the control of the contractor or the designer will not (in the absence of contract terms to the contrary) exculpate the contractor or designer from that obligation. In real terms, this takes the contractor or designer beyond the duty to exercise reasonable skill and care in the carrying out of the works and instead imposes an absolute obligation to produce a result.

This is an onerous obligation and one that is uninsurable.

What does fitness for purpose mean in construction contracts?

As Karen Gidwani explains fitness for purpose is a phrase often used in everyday language in relation to a service or a product that is not working as expected or desired. In construction contracts, however, the concept of fitness for purpose has its own body of case law and analysis, and the effect of including a fitness for purpose clause in a construction contract can be draconian.

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What is a fitness for purpose clause?

Construction and Engineering – Meanwhile, with construction and engineering contracts, a fitness for purpose clause is not necessarily implied as it is with manufacturing contracts. Instead, in the absence of such a clause, it is assumed that the customer or client is trusting the contractor’s experience and expertise in designing and constructing a building or space that will be able to be used for the client’s wishes.

  • As such, it is crucial that the client be clear as to any and all ways in which they may intend the space to be used, and equally critical that all parties involved are clear on the intended use(s).
  • Should there end up being confusion or conflict later on as to whether or not the building or space was constructed to the clients intended wishes, the matter will often be settled by the courts or an arbitrator, who will consider the terms and conditions of the contract, along with the completed construction.

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What is’fitness for purpose’obligation?

The following Construction practice note provides comprehensive and up to date legal information covering: A contractor or consultants ‘ standard of care in relation to design is a common source of disagreement between the parties to a construction project.

  • In most cases the contractor or consultant will be trying to avoid accepting a ‘fitness for purpose’ obligation in relation to the design—either express or implied.
  • This Practice Note examines what the so-called ‘fitness for purpose’ obligation is, who is subject to it and who isn’t, where it comes from and why contractors and consultants are keen to avoid accepting it.
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It also includes example clauses and considers whether a contractor should accept them. The amount of design that a contractor or consultant may carry out under their contract or appointment will vary but, regardless of the extent of design undertaken, the principles dictating the standard of care in respect of that design will be the same.

What does “fit for purpose” mean when building a house?

Fitness for Purpose: what does it really mean?

I recently read an interesting article on “fitness for purpose” in the context of construction contracts and it got me thinking about whether the revile held for these words was actually justified.I have been involved in negotiations where contractors or professional consultants insist on removing any requirement that the finished building will be “fit for purpose”.The argument runs something like this: “I will not accept a fitness for purpose obligation because it is too onerous and is not insurable”.As the author of the article quite rightly points out: if an employer wishes to construct a building for a particular purpose as set out in his employer’s requirements then shouldn’t he be entitled to expect his chosen contractor to construct such a building on the basis that this is what the contractor is being paid for?

The starting point is that professionals must exercise reasonable skill and care in the provision of their services – and this is generally what will be covered by professional indemnity insurance policies. This gives rise to a reluctance to agree to any higher standard of care either under the building contract or appointment.

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The question raised by the author is why the JCT design and build contract appears to differentiate between workmanship (where there is an absolute obligation to carry out and complete the works “in a proper and workmanlike manner and in compliance with the Contract Documents”) and design (where liability is measured against the standard of care generally imposed on architects, in other words the “reasonable skill and care” test).

The contractor is contracted to both design and construct the building so why should there be any difference in the standard of care required? After all there are other obligations which contractors willingly sign up to and which are not insurable. The problem may stem from the wording in the Supply of Goods and Services Act which provides that where an employer either expressly or by implication makes known to a contractor any particular purpose for which the building is to be built, there will be an implied term the building will be reasonably fit for that purpose, whether or not that is a purpose for which such goods are commonly supplied.

  • The solution is simple: if the building is required to fulfil a particular purpose then there can be no objection to requiring the contractor to ensure that certain performance requirements are met.
  • This avoids having to actually use the words “fit for purpose”, and means that the contractor will not be required to ensure fitness for any other currently unknown purpose to which the building might be put in the future.

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