Contracting contracts and guarantee claims in Kuwaiti law
Lawyer Modi Al-Mousa office
Contracting contract and guarantee lawsuit
Contracting is a contract whereby one of the parties is obligated to perform work for the other party in return for compensation without being his subordinate or his representative.
In one of the chapters in the book of sales and in various texts of leasing, the legal journal of the contract of contracting was presented, with the text: “If the manufacturer offers work and the eye together, the sale is concluded in conformity with the provisions of the sale and if the eye is from the manufacturer, the manufacturer is a joint compulsion, and the provisions of leasing apply to him.”
During that period of time, the legislator intended to regulate a relationship between a manufacturer and a maker entrusted with a job, so the manufacturer's position in relation to the manufacturer was close to that of the worker with respect to the employer.
The components of a contracting contract are:
1 / Binding for both sides 2 / a netting contract 3 / non-subordination of the contractor 4 / lack of representation.
Obligations of the employer:
1 / Enabling the contractor to complete his work.
2 / Receipt of the work after its completion.
3 / Pay the wages.
Contractor's obligations:
1 / Carrying out work according to the conditions.
2 / To delegate at his expense the labor, tools and supplies he needs.
The architect and the contractor jointly guarantee what happens within ten years of the total or partial demolition of what he built from buildings or erected from other fixed facilities, even if the demolition was caused by a defect in the land itself or if the employer authorized the establishment of the defective installations unless the contracting parties in these The case they wanted these facilities to remain for less than ten years.
1 / Design defects _ 2 / Technical proficiency _ 3 / Technical defect _ 4 / Violation of building laws and regulations _ 5 / Height _ 6 / Design and implementation space.
And that the assignment of subcontracting _ is governed by four articles.
Article 680:
1 / It is not permissible for any of the contracting parties to waive the contracting except with the consent of the other, unless there is a condition in the contract that stipulates otherwise
2 / If the assignment is made, the assignor will replace the assignor in his rights and obligations.
3 / The assignment does not take effect vis-à-vis others unless it is officially announced to the other contracting party, or if his approval of the assignment is fixed in date.
As for Article 681 of the Civil Code, it states:
1 / The contractor may assign the execution of the work in its entirety or in part to a subcontractor if a condition in the contract does not prevent him from doing so, or if the nature of the work would make the contractor's personality under consideration.
2 / The subcontracting does not affect the obligations of the original contractor towards the employer as he is asked before him for the works of the subcontractor.
While Article 682 states the following:
1 / The sub-contractor and the workers who work for the original contractor in carrying out the work may request the employer directly for what is owed to them by the original contractor within the limits of the amount that the latter has over the employer at the time of filing the lawsuit.
2 / The workers of the subcontractor also have a direct claim before both the original contractor and the employer within the limits of his due.
And Article 683:
The subcontractor and the workers mentioned in the previous article may fulfill their rights by concession over the amounts owed to the original contractor or to the subcontractor and to fulfill their rights when competing with the proportion of their debt.
The guarantee shall work for defects in buildings and facilities that threaten the durability and safety of the building. The warranty period is ten years from the time the work is delivered.
This article does not apply to what the contractor may have the right of recourse against the sub-contractors.
Warranty suit:
The design defects are either due to a mistake in the origins of the architecture, such as if the design was developed that the necessary technical sufficiency was not available or that no care was taken, then the design is technically defective.
Article 525 shows design flaws.
The contractor will ask about design defects if they are not hidden or related to violations of building codes and regulations.
The principle is that the employer's error negates the causal relationship, so the contractor is not obligated to guarantee that if the defect is in the materials brought by the employer and the contractor has proven this, then there is no liability on the contractor.
We note that the employer's permission for a fault does not affect the liability of the contractor.
Moreover, the agreement to exempt or limit the guarantee does not exclude the guarantee.
Article 697 states, “Every condition intended to exempt the architect and contractor from the guarantee or limit it.”
Guarantee of the engineer and contractor from the general system:
This is justified by the fact that the employer usually does not have technical experience, but the contractor and the engineer have experience and know-how if it is permissible for them to stipulate or limit the lack of liability in order to expand that.
The protection of the employer became the provisions of the guarantee of public order.
Reduce or reduce - to become clavses de style.
It is not permissible to agree in advance to exempt or limit the guarantee.
As soon as the employer takes over the building, the contractor or engineer shall be discharged from the guarantee for all defects, both apparent and hidden.
* It is permissible for the employer to waive the guarantee. Subject matter of the warranty claim:
The employer may request in the security case the real implementation. If the building is demolished, he may request the rebuilding and he may request a permit from the court to rebuild what was destroyed at the expense of the debtor with the guarantee of the engineer or the contractor or both, jointly. He also has if the building is defective and it was possible Reforming it in kind is to ask the official to find this reform, to try it out at the expense of the official with permission from the court.
In case of extreme urgency, the court’s license may be dispensed with in accordance with the general rules (209/2 civilian). If the real execution is a burden on the debtor, the court may limit itself to a ruling for compensation.
As in all cases of real implementation, it is also permissible to rule for compensation if there is a requirement. Example: Delayed reconstruction ...
He may rule compensation from the outset without real implementation, so the employer decides for an amount equal to the costs of restoring and repairing the defect, as well as the employer avoiding the benefit until it is repaired.
Prescription of warranty lawsuit 696:
The guarantee lawsuits shall be extinguished with the lapse of three years from the time of the demolition or the exposure of the defect. This text resolves an issue that was disputed in French law. In the French law, Article 1792 specifies the period of guarantee ten years and in Article 2270 the statute of limitations makes the warranty case ten years. After a long dispute the matter settled That the guarantee case must be filed within the ten-year period during which the defect must appear. As a result, if the defect is revealed on the last day of the tenth year, the guarantee case cannot be filed on the second day, as it has become obsolete.
Responsibility towards others:
The guarantee lawsuit is based on the contractual liability between the employer on the one hand and the engineer or contractor on the other hand, as for others, there is no contractual bond if the building collapses and a passerby suffers damage, the injured person would have to return compensation to the construction guard (the employer) under the resulting tort The building guard is based on an assumed error and it is necessary to refer to the contractor or engineer.
Warranty of the engineer and contractor for works:
In order for the guarantee to be achieved, the contracting must be located on fixed facilities, whether built with bricks, stones or wood. It is important that the building be stable ....
It must be a contracting contract.
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