Defects Associated with Sub-Surface Ground Conditions in Construction Contracts: A Comparative Legal Synthesis of Aspects of Risk Allocation in Kuwaiti, French, and English Law

Abstract

No structure can be erected without ground support. However, preliminary investigation may offer little protection against sudden surprises. Topographical features are therefore of great significance for construction projects, playing a decisive role in cost estimates. It is necessary for a successful construction design to carry out a sufficient examination of the site, in order to determine the plan area available for proposed works, and the nature of the subsoil with view to deciding the correct design for foundations or methods of the underground working. The present paper purports to elucidate this concept in its legal framework. The plan of campaign in the legal analysis is a comparative one, with particular emphasis on the position of the Kuwaiti, French, and English Law. The purpose is to sketch some of the key questions in this area, and to assess the present state of the law. The discussion reveals that construction contracts essentially take as their standard the strict liability of constructors, ie architect/engineers and contractors; the soil risk is their risk, and their degree of responsibility rises with their technical qualifications. This topic is of particular importance to Middle Eastern and North African countries, in which civil codes draw extensively from their French counterpart. However, although these systems generally enforce a decennial liability scheme, many governments in the region, including Kuwait, has long adopted the FIDIC form for public works contract, albeit with considerable modifications. Statements and opinions as to the law in any jurisdiction should not be taken as definitive. In any particular instance, legal advice should be sought.

Keywords: construction law, Kuwaiti law, French law, English law, ground conditions, liability, contract, tort.