The United Kingdom law is different from the United Arab Emirates (UAE) law from various fronts. One of the areas has some tangible differences and is increasingly gaining popularity among academicians, researchers, practitioners and construction industry experts concern construction defects because they some of the major causes of construction litigations. Dealing with construction failures demands various familiarity with not only building technology and practice, but also an understanding law. Tort provisions in law enables parties to recover from losses caused by negligence or breach of contractual obligations. Under the UAE law tortious liability cannot be limited or excluded. On the contrary, the provisions for tortious liability within the English law has traditionally been limited To determine the jurisdiction that provides more protection to subsequent purchasers whose rights are affected by construction failures in the completed project, this paper compares and contrasts English law and UAE law on tortious liability for defective construction and design.
Engineering designs and construction processes results in built environments that have potential hazards for future occupants and owners. It follows that there are grave consequences for these third parties, who had no control over the design and actual constructions if the designers and builders got it wrong. As much as the third parties have no direct contractual relationships with the designers and builders, third parties must be protected from any professional negligence. Under the English law, economic losses such as loss of profits, dame of stock, loss of income, as well as costs of remedying defective buildings are not recoverable in scenarios that have no contracts between the primary parties . However, third parties are accorded protection through collateral warranty agreements. Similar to the United Arab Emirates (UAE), tort provisions in the UAE law has a provision for collateral warranty. Despite noting some similarities, application and provision of tort law in the two jurisdiction is dissimilar. In fact the two countries have different legal systems and approaches to construction contract formation; hence have unique tort provisions in their laws. This paper is explores the application and provision of tort law in England and the UAE, and then assesses the two jurisdictions to establish the law that provides more protection to principals and subsequent purchasers whose rights are affected by construction failures in completed projects.
Tort Provisions under UAE and English Law
In both legal systems, the term tort refers to a legal violation where a party causes harm, damage or injury to another. The party that commits any form of tort incurs tort liability , implying that the victim must be reimbursed for the harm or damage. In other words, the party that if found to be liable for the damage will likely be mandated to pay for the damages. Logically, the burden lies with the claimant or plaintiff to prove that the harm or damage is directly linked to the liable party. In England, a petitioners loss caused by a respondents carelessness can only be recovered in Negligence if the petitioner proves a duty of care. Additionally, petitioner can only claim for a duty of care if there is sufficient proximity in the relationship between the petitioner and the respondent. Bound by the decennial liability , parties in UAE can claim losses by proving that the defendant owes them either duty of purpose of duty of care. Given that liability in a tort case may involve a number of factors, there are different perspectives to tortious liability. These difference in perspectives and approaches also translates to differences in provision for tort liability in the UAE and English law. Therefore, the succeeding section compares and contrasts the provisions in the two jurisdiction.
UAE Law Perspective on Tortious Liability
Legal System and Construction Contract Formation
The United Arab Emirates legal system is based on the UAEs Constitution, which established a federation of seven emirates: Ajman, Abu Dhabi, Dubai, Fujairah, Sharjah, Ras Al Khaimah and Umm Al Quwain. Where legislative procedures fail to cover a specific issue, the UAE courts reach a decision in line with Islamic sharia law. The federation has adopted a codified systems of laws rooted to Law No. 5 of 1985 known as the UAE Civil Code or the Civil Transactions Law . Other laws relevant to the UAE construction industry include the Penal Code, the UAE Commercial Procedure, and the Commercial Code . The core principles of tortious liability in the UAE is primarily accommodated in the UAE Civil Transactions. This Code intends to safeguard person property, reputation, security and economic interests of individuals.
According to Article 130 of the UAE Civil Code, the fundamental prerequisites for forming a contract are offer and acceptance . Additionally, the subject matter must be detailed and the foundational elements must be mutually consented by all the parties bound by the contract . These prerequisites equally apply to construction contracts in the UAE. Further, articles 872 to 896 provides specific provisions applicable in construction contracts. In accordance with these provisions, binding and valid construction contracts in the UAE must contain detailed description of the subject matter, the contractual work, contract price, as well as the manner and time of performance.Strict Liability for Latent Defects in Construction Works or Engineering Projects
Under the UAE law, the strict liability evident in the Decennial Liability implies that a party is held liable for any tortious engineering or construction-related actions even if a statue was not violated intentionally. The UAE Civil Code stipulates that supervising engineers and main contractors are jointly liable to any failure or defect that occurs in their construction projects within the 10 years form the time the property is handed to the client. This provision is known as decennial liability. The nature of decennial liability is strict to the extent that there is no need to prove fault or error on the part for the engineer/architect and contractor.
Defects Liability Period and Limitation Periods in the UAE
The limitation period in the UAE is 19 years from the practical completion of work . Defects liability period is the duration within which contractors are contractually obliged to go back to the construction site and make repairs that have appeared in their work . The UAE laws provides that a petitioner cannot claim for compensation of damages under tortious liability after the expiration of the predefined three years from the day on which the petitioner was aware that damages were incurred and the tort-feasor was identified . In line with Article 882 of the UAE Civil Code, any agreement meant to limit the decennial liability is void . It must be appreciated that this provision is fundamentally propelled by UAEs public policy relating to safety. Through contractual drafting, decennial liability provisions finds any effort to abuse it to be in vain even if it is considered by any court or tribunal in the UAE. Logically, the decennial liability is only not applicable in scenarios where a constructed property last less than a decade . Evidently, tortious liability within the UAE law is broader than contractual liability. In contrast to the UAE law, English law has provisions for contraction out of a tortious liability . Additionally, lessened liabilities as a result of agreements between parties are accepted in English courts.
Pure Economic Loss in the UAE
Economic loss refers to financial damage or disadvantage that is visible on a financial statement. Under the UAE, the same losses are distinguished as either consequential or direct . Unlike in the English law where pure economic law is limited, damages are recoverable under the UAE law due to strict liability. The decennial liability extend to cover damages related to partial or total collapse of, as well as well as defects linked to structural failure of a construction . To recap, the limited recordable damages in pure economic loss in the English laws is recoverable under the laws of the UAE.
English Law Perspective on Tortious Liability
Legal System and Construction Contract Formation
In contrast to the UAE, which is a civil law jurisdiction , England is a common law jurisdiction. In line with the doctrine of precedent, a significant amount of English laws is found in court judgements, which form the common law . For this reason, the English courts are regarded as law making entities. Depending on the circumstances, of the English court judgements over civil matters can have retrospective effect . For instance, they may extend into areas which hitherto it had not been thought to apply. In other words, judgments concerning issues related to tortious liability can change from the time of an enactments commencement. For instance, the 1998 edition of the Standard Form of Building Contract has been revised and replaced by the 2005 Standard building Contract .
Under English law, the formation of construction contracts is judged objectively; thereby, ignoring unexpressed reservations and subjective expectations of the contracting parties. Similar to the UAE legal system, there must be an offer from a party and acceptance of the same offer by the other contracting party. However, contracts may also exist without a clear offer and acceptance of the parties involved. In this regard, there must be something promised by one of the parties. Additionally, the parties must have the intention to form legal relations. To note, construction contracts to no necessarily have to be formalized by a signature or to be in writing. The general rule in English law is that claims for defective products or constructions should be made under Contract law. Additionally, vicarious liability demands that superiors be held liable for tortious actions committed by their subordinates as in the case where an employee causes harm to other parties .Strict Liability for Latent Defects in Construction Works or Engineering Projects
Parties involved in construction projects in England and those utilizing standard form construction contracts like the Joint Contracts Tribunal (JCT) package of standard are aware of the practical completion of a construction project . A project is considered completed at the point which the principal or project client takes possession of the project works and contractor can only return for remedial and outstanding works. Thereafter, the defects liability period begins where contractors must remedy any defects apparent at practical completion and during the defects liability period.
Defects Liability Period and Limitation Periods in England
The limitation period is the duration which a party to a construction contract must present a claim. In these contracts, limitation contracts are essential in relations to defects claims presented to contractors. In England, most contracts outlines a defects liability period that often runs for around 12 and 24 months after practical completion. The limitation period are defined in the Limitation Act 1980 . The limitations period in the UK is six years from the time the loss is accrued. If the construction contract is under seal, the limitation period 12 years. Normally, contractors are liable for any defects that might rise between this duration. In accordance with the English law, this defect liability period commences on substantial or practical completion of construction and extend for typically one year. The central benefit of defects liability period to clients is that it cushions them from losses that might have been incurred in dispute resolution. Additionally, it is important to have the original contractor rectify any defects because they might be easy to rectify rather than if a new contractor is contacted. In the same context, a new contractor might incur immense costs rectifying a defect that might have consumed less resources if it was corrected by the original contractor. From a contractors perspective, a clause that gives a contractor exclusive rights to correct any defects is beneficial as the cost of repair is likely to be much less than if the repair is outsourced. In scenarios where the contractor has exclusive rights to make repairs during the defects liability period, procurement of another contractor by the client is a breach of contract.
Pure Economic Loss in England
Under the English law, economic losses can either be pure economic losses or consequential economic losses. The latter covers losses from physical damage, for instance, loss of income due to an accident at workplace. In the UK, recovery for pure economic loss as a result of negligence is traditionally limited as ruled in Murphy v. Brentwood . That is to say, if a claimant suffers only pure economic loss, the damage is unrecoverable. As ruled in Spartan Steel & Alloys Ltd v Martin & Contractors Ltd . One of the factors that limits recovery of pure economic losses in the fear that unlimited claims will emerge for similar cases .
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Laws that Protect Subsequent Purchasers
As per the principle of freedom of contract, parties have the freedom to form any contract as they deem fit, without restriction from the government UAE . The key stipulation is that contracts should not be immoral, illegal and must not violate the rules of public order. Contractual liability in UAE arises only where valid contracts exist between the party that has incurred losses and the liable party. In line with decennial liability, obligations predefined by Article 878 of the UAE Civil Code are treated as contractual . These provisions have consequences for third parties or purchaser. To note, third parties only enjoy the benefit of the rights conferred by contract to which they are privy with agreement. The UAE laws tend to provide more protection to subsequent purchasers whose rights have been violated by defective engineering designs or constructions . All constructors in the UAE are strictly liable toward any principal or purchaser of the completed work for losses or damages. Additionally, UAE law strictly protects principals and purchasers of works from defects that appear in structures and from defects that pose threat to their safety.
Generally, a client who suffers loss because of defective design and construction may recover damages from the designer or architect for negligence or breach of contract. England and United Arab Emirates have unique tort provisions in their respective laws. However, the review and discussion above shows that the UAE laws are slightly more protective that the English laws. In summary, the UAE law offers significant protections to purchasers of construction.