The service provider's duty to warn about defects caused by third parties

J.A. Luzak

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A specific task division in the modern construction process forces a client to cooperate with many professional service providers. All these service providers are at risk of making a mistake during the performance of their tasks and thus of endangering the success of the whole construction. Most clients have never had anything to do with the building process and most likely would remain clueless as to the existence of a defect in the construction, until it would become grave. However, other service providers employed in the same construction process may have or should have noticed such a defect earlier.

This book answers the question whether and under what conditions service providers employed in the construction process may have an implied (pre)contractual duty to warn the client about a risk of construction defects resulting from a contract with a third party. Special emphasis is placed in this book on the duty to warn about defects resulting from design failures. This duty to warn was studied in three different European legal systems: English, German and Dutch. The scope of the duty to warn and its regulation in these three countries is compared to gain insight into the regulation of the (pre)contractual duty to warn on a (small) European scale. This allows to assess how representative the regulation of the duty to warn in the Draft Common Frame of Reference (DCFR) is.

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