On 1 January 2024, the Quality Assurance Act for Construction (Wkb) came into force. In short, the general aim of the Act is to improve the quality of construction. To this end, amendments have been made to both public and private law. This blog post briefly discusses two amendments to private law, i.e. amendments that apply to the contractual relationship between the client and the contractor. For the sake of clarity, I will not consider the special position of the consumer client. I would also like to point out that the legislative changes below only apply to the contracting of construction work. If the agreement relates to other types of work, such as painting, the “old” rules will continue to apply.
- Extension of the contractor’s liability after completion (Section 7:758(4) of the Dutch Civil Code)
The old situation (contracts concluded until 1 January 2024) was, in short, that after completion, the contractor was released from liability for defects that the client “should reasonably have discovered” at the time of completion. This criterion presupposes a subjective test: consideration was given to what the client in question should have discovered with his specific knowledge and expertise. Professional clients were therefore expected to be more attentive than laymen. In practice, there was often discussion about whether or not a particular client should have discovered the defect.
Those days are over. For construction contracts concluded after the Wkb comes into force (i.e. after 1 January 2024), the starting point is no longer the exclusion of liability, but the establishment of liability: from now on, the contractor will be liable for defects that were not discovered upon completion. The criterion of “should reasonably have discovered” (the subjective test) will therefore no longer apply. This makes the question of liability much more factual: was the defect discovered or not? If the defect was not discovered, the contractor is in principle liable. The only exception is if the contractor successfully argues that the defect is not attributable (blameworthy), for example in the case of a design error on the part of the client. If a defect is discovered upon completion, the legislator assumes that either (repair) agreements will be made about it, or that the client will accept the defect.
This extension of liability after completion is expected to have a significant impact in practice. The contractor will have more responsibility for the quality of the construction, and the completion process will take on a different meaning because it will no longer be relevant whether a defect could have been discovered at that time.
It is important to note that this new liability regime may only be deviated from by agreement (not: general terms and conditions). Deviating liability provisions in general terms and conditions, such as in the widely used UAV 2012, will therefore not be legally valid in contracts concluded after 1 January 2024.
- Contractor’s duty to warn (Section 7:754(2) of the Dutch Civil Code)
For some time now, the law has imposed a duty on contractors to warn of inaccuracies in the instructions given to them (Section 7:754 of the Dutch Civil Code). If this duty to warn is not fulfilled, the contractor is liable for the consequences. With the entry into force of the Wkb, a new paragraph has been added to this article, in which a number of formal requirements are attached to this duty to warn. From now on, a warning must (1) be in writing and (2) be unambiguous, and (3) the client must be made aware of the consequences of the inaccuracy for the performance of the contract. The latter could include, for example, a delay in the completion date.
The newly introduced formal requirements show that the legislator attaches great importance to the duty to warn. This is understandable, because “prevention is better than cure” and a client will often (partly) rely on the expertise of his contractor. For the sake of clarity for all parties, it is to be welcomed that it is now also laid down in law that a warning must be given in writing and in an unambiguous manner, although practice shows that warnings were usually given in writing anyway, because a contractor has the burden of proof that a timely and adequate warning was given. Another positive development is that warnings must not only be given about a fault, but also about its consequences, as this enables the client to take action where possible.
Conclusion
Clients and contractors would do well to familiarise themselves with all the legislative changes resulting from the Quality Assurance Act for Construction, so that they can take them into account in their practice. As the above discussion on the contractor’s liability shows, the consequences of the changes can be significant.
Our solicitors specialising in construction law will be happy to assist you with specific questions, disputes or the implementation of the Wkb in your company’s (standard) contracts. Please send an email to the author of this article (s.keuls@paulussen.nl) or to Bert Lejeune (b.lejeune@paulussen.nl) and we will assist you as soon as possible.
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