As part of the CTU it can be subject to ascertainment, implicit in the examination of the vice/defect/discrepancies, where the inconvenience derives from and therefore, inevitably, to whom it is attributable to the responsibility
of the contractual defaulthaving consequent legal importance.
In this regard in case of vices and defects in the execution of construction works The subjects who intervene and who are passable of a possible responsibility towards the client – who has not been ingested in the realization decisions – are substantially theexecutor of the workThe designer and the works managerhaving to also evaluate any solidarity between them.
To verify the attribution of liability, the discriminant is the ownership and exercise of the power of directive or control over the work operated and therefore, the presence of a project provided by the client does not fail the autonomy of the contractor regarding an assessment of the legitimacy of the project and the instructions that are given to him by the client.
The executor/Contractor
On the subject of contract contracts theexecutor of the work It is required to comply with the rule of art in its implementation and therefore, if this is not respected, the same will be responsible for the damage caused to the client, even in the event that the works manager intervened in a consistent way as the existence of deficiencies or defects attributable to the project and all the consequent responsibilities do not exempt the contractor who, if noticed the defect, would have had to report it promptly to the client, and to refrain from the execution of the work (Bari Court, section II, 17 July 2015).
So where the project and the instructions given by the client are clearly incorrectthe contractor can escape responsibility only if he shows that he has expressed his dissent and that he has been forced to perform the indications such as nudus minister. In the absence of much, the contractor is responsible for the defects or vices of the work, without being able to invoke the guilt of the designer or the client, nor the exempt effectiveness of any errors in the instructions given by the works manager (Court of Appeal of Bari, Section II, 19 March 2021, n. 526).
In this regard, art. 1669 cc whose scope is referred to the contractor only, but with the jurisprudence that He also extended the responsibility to the designer and the works managerexcluding from this examination, the client in case the construction of the property with its own direct management, making the contractor a mere executor of orders.
The designer
Regarding the responsibility of the Designer of the construction workonce the discrepancies between the work carried out and the project developed, ascertained the violation of the construction legislation, technical and highly specialized sector, the error is at the same time attributable by way of professional liability according to the criterion of specific diligence in concrete terms pursuant to art. 1176, paragraph 2, cc, since, for example, the illegal fact consisting in the construction of a construction in violation of the legal distances is linked by a causal link to the behavior of the professional who prepared the project, as well as directed the works (Court Florence, section II, 19 May 2021, n.1380).
The works manager
The works manager exerciseson behalf of the client, the controls that he believes to not to be able to carry out in person for the technical peculiarities of the intervention. Although it is known that it must not always be present on the construction site, it must verify, through visits and direct contacts with the technical bodies of the company and with the executive companies of the various work phases, compliance with the rules of art and the correspondence between what has been designed to the specifications and the rules of the good technique.
The fulfillment of this activity excludes co -responsibility with the contractor for the defects of the work deriving from design defects, unless he was expressly appointed by the client to carry out
Also this additional activity compared to that object of the normal performance and therefore to verify the feasibility and technical accuracy of the project. The works manager is responsible for the “exact execution of the obligations assumed by the contractor” towards the client, with the jurisprudence that has extended this responsibility in the sense that “he replies against the client not only in the event that the defects of the work derive from the failure to comply with the project, given that among the obligations of the director himself there is to find the progressive compliance of the work to the project; but he replies, jointly and severally with a designer and contractor, even in the case of the deficiency derive from the deficiencies that Check that the methods of the execution of the work are in line not only with the project, but also with the rules of the technique, to the point of the correction of any design deficiencies “(Court Reggio Emilia, section II, 27 June 2014).
Therefore fall into the obligations of the works manager, theassessment of compliance both of the progressive realization of the work to the project, and the methods of the execution of it to the specifications and/or the rules of the technique, as well as theadoption of all the necessary technical tricks aimed at guaranteeing the realization of the work without construction defects; so does not escape responsibility The professional who fails to supervise and impart the appropriate provisions in this regard, as well as to control their compliance by the contractor and, in defect, to refer to the client (Court Appeal L’Aquila, 6 May 2020, n. 658).
The authors Perferdinando Marinoni and Massimo Montrucchio participated in Conape as speakers. If you are interested in the topic and you would like to form on the subject, do not miss the Fifth edition of the Higher Training Course on Building Pathologyclick on the banner below to find out more.
