Is tort law or a law of extra-contractual obligations recognised in your jurisdiction?

Construction (2nd edition)

Australia Small Flag Australia

Yes, tort law is recognised in Australia.

Belgium Small Flag Belgium

Yes. Pursuant to article 1382 of the Civil Code, a person who violates the general duty to act in a reasonably prudent and diligent way (as would the bonus pater familias), and who causes another person to suffer damages as a consequence thereof, is under the obligation to fully compensate the victim.

A very important exception in this respect is the so-called principle of non-cumul: between contracting parties, the application of tort law is, in principle, excluded regarding issues under the contract (exceptions do exist).

China Small Flag China

Yes, tort law is recognised in China, tort liabilities are specifically set out in Tort Liability Law.

Croatia Small Flag Croatia

The law stipulates the defects liability of the contractor in respect of patent defects and latent defects. There is also decennial liability of contractor, supervising engineer and designer for essential requirements for the building. The law prescribes the duration of the liability, the reporting obligation and the time limits for the notification of the liable person. The non-compliance with the notification deadlines results in the loss of right.

The basic requirements for the building are: mechanical resistance and stability, safety in case of fire, hygiene, health and environment, safety and accessibility during usage, noise protection, energy management and preservation of heat, sustainable usage of natural resources.

The contractor shall not be relieved of liability if he acted in accordance with the employer's requirements unless he notifies the employer about the risks and consequences of the employer's requirements.

Extra-contractual liability is prescribed by the Civil Obligations Act and covers the liability of the employer and the contractor for damages caused to the owner of the adjacent land caused by the construction activity. The liability is joint and several.

Germany Small Flag Germany

The German equivalent to tort law is “Deliktsrecht” which is incorporated in the German Civil Code (Bürgerliches Gesetzbuch” - BGB). The German equivalent to law of extra contractual obligations is called “culpa in contrahendo”. It is codified since 2002 in section 311 (2) 2, section 280 (1) and section 241 (2) German Civil Code (BGB)

Greece Small Flag Greece

The Greek Civil Code ('GCC') recognises following extra-contractual (ex lege) liability sources:

  • Torts (914-938 GCC);
  • Pre-contractual liability (197-198 GCC);
  • Unjust enrichment (904-913 GCC); and
  • Agency without authority (Negotiorum gestio) (730-740 GCC).

Switzerland Small Flag Switzerland

Yes, tort law is a law of extra-contractual obligations recognized under Swiss law.

United States Small Flag United States

The law of torts can create extra-contractual obligations for parties to a construction contract under certain circumstances. The most common method is when there is an instance of personal injury or property damage. In such instances, tort law applies and can result in unanticipated liability. There are means for limiting such liability, however, including through the use of indemnity provisions, warranty exclusions and the procurement of appropriate insurance to cover such risks. Proper contracting and insurance at the outset of a project are the most effective mechanisms for limiting potential tort liability.

In addition, some jurisdictions in the United States allow a party to sue for negligence or professional negligence even where a contract exists. Such lawsuits are not common, however, as many jurisdictions in the United States recognize the economic loss doctrine, which prohibits a party from suing in tort to recover for the breach of a contractual obligation. There are, however, exceptions to the economic loss doctrine.

Certain exceptions to the economic loss doctrine allow a party to sue in tort for money damages stemming from the breach of a contractual duty. For example, some states exempt any claim for professional negligence -- i.e., a defective design, engineering calculation or even professional management of a project -- from the economic loss doctrine. See e.g., Municipality of Anchorage v Integrated Concepts & Research Corp Case No 3:13-cv-00063 SLG, Docket 501 (D Alaska December 5 2016). Some states allow a contractor or subcontractor to sue a design professional for professional negligence when that professionals work results in damages to the contractor or subcontractor. See Balfour Beatty Infrastructure, Inc v Rummel Klepper & Kahl, LLP, 2017 WL 701441, * 4 (Md. 2017). Other states allow such claims were the work creates a “serious risk of personal injury.” Id.

Due to the wide variance in application of the economic loss doctrine, it is important to understand the local law when negotiating contract terms or preparing claims. Failure to account for the possibility of tort liability can have serious unintended consequences and open a construction professional to significant risk.

Austria Small Flag Austria

The Austrian liability law distinguishes contractual liability and tort liability.

Cyprus Small Flag Cyprus

The tort law is recognized in Cyprus. Most construction claims are contractual claims, but tortious claims are typically relevant to construction projects in the context of alternative claims for negligence.

It is common to make a claim against a construction professional in contract and alternatively in tort. Claims in tort can benefit from extended limitation periods.

Brazil Small Flag Brazil

Legal provisions equivalent to tort law are expressly recognised by Brazilian law, especially under Title IX, Book I, Special Part of Brazilian Civil Code ("BCC").

As a rule of thumb, Brazilian law establishes that any person who causes a damage to another, by voluntary act or omission, negligence or imprudence, including personal injury, material or moral damage, is obliged to repair it (Articles 186 and 927 of BCC). The indemnity shall be measured by the extent of the damage (Article 944 of BCC), therefore included any compensation for direct, indirect and consequential damages, as well as loss of profits, loss of revenue and related amounts.

Regarding construction law, Article 937 of BCC expressly imposes on the "owner" the liability for damages caused to third parties resulting from the falling of the building into ruin due to poor maintenance. In other cases, liability for damages caused to third parties by the "contractor" may be jointly and severally imputed to the "owner", depending on the circumstances of each case.

Additionally, it shall be noted, in relation to construction projects, that Brazilian law provides extensive regulation regarding non-contractual liability of environmental nature. Brazilian courts, in this respect, have consolidated an understanding favourable to the imputation of joint, several and objective civil liability to "contractors" of projects that result in environmental damages of any kind.

Ireland Small Flag Ireland

Yes, tort law is recognised in Ireland.

In certain circumstances the tort of negligence may create a legal route for a third party to bring a claim against a contractor or a consultant for defective work or design (as applicable). In order for a third party to be successful in bringing such a claim against a contractor or consultant in negligence, the third party will have to show that the contractor or consultant owed the third party a duty of care, that the acts or omissions of the contractor or consultant were in breach of that duty of care, that there was a causal link between the breach of duty and the loss suffered by the third party and that the loss suffered is not so remote that it cannot be recovered under negligence.

In addition to proving negligence against a contractor or a consultant, a third party must also be able to show that the type of damage suffered is a category of damage that is recoverable under Irish law. In Ireland, apart from certain circumstances, damages known as ‘pure economic loss’ are often not recoverable in tort. Pure economic loss would include damage to a thing itself. So, for example, if a purchaser of a home discovers latent defects in the building, the cost of repairing these latent defects or the diminution in value of the house as a result of the defects would be classified as pure economic loss.

Pure economic loss, however, is recoverable in certain circumstances. For example, where a contractor or a consultant voluntarily assumes responsibility to a third party through a statement of fact and the statement is negligently made, which results in loss to the third party, pure economic loss is recoverable in this instance. This is particularly relevant for consultants who sign certificates stating that buildings comply with certain standards.

Mexico Small Flag Mexico

Yes. Mexican Civil Code recognizes extra contractual liabilities. These are regulated in the Civil Code of each State.

United Kingdom Small Flag United Kingdom

The law of tort is recognised in England and Wales. Most construction claims are contractual claims, but tortious claims are typically relevant to construction projects in the context of alternative claims for negligence.

It is common to make a claim against a construction professional in contract and alternatively in tort. Claims in tort can benefit from extended limitation periods. However, one disadvantage of a claim in tort is that if the claimant does not have a direct contractual relationship with the wrongdoer it cannot generally recover damages for the repair of defective buildings, since this is considered to be pure economic loss (see answer to question 20.)

Spain Small Flag Spain

In Spain, extra contractual liability is recognized in the Civil Code, approved by the Royal Order of July 29, 1889.

Turkey Small Flag Turkey

Turkish contract law recognises tort law and some other extra-contractual obligations (i.e. unjust enrichment, acting without authority and culpa in contrahendo).

South Africa Small Flag South Africa

Yes, the law of tort (known as the law of delict) is recognised in South Africa.

France Small Flag France

Yes, tort law has its equivalent in the French legal system and extra contractual claims are possible.

Sweden Small Flag Sweden

The Tort Liability Act (1972:207) applies in both contractual and non-contractual contexts. In short, liability in non-contractual situations arises when a person intentionally or negligently causes physical damage or personal injury. Liability for purely economic loss is not covered unless the loss emanates from a criminal offence. In contractual relationships, the Tort Liability Act only applies if the parties have not agreed on deviating provisions.

Denmark Small Flag Denmark

General principles of tort apply to construction contracts, unless otherwise agreed in the contract. In order to raise a successful claim for damages, the claim holder must document a loss, intentional or negligent conduct by the other party, and a causal connection between such loss and the intentional or negligent behavior.

The AB Standards state that the contractor is not liable for consequential damage, operational loss, loss of profit or other indirect loss suffered due to defects in the work.

Punitive damages are not awarded under Danish law.

South Korea Small Flag South Korea

  • Tort law is recognized in South Korea. Chapter V (Articles 750-766) of the Civil Act provides the basis for most tort claims arising from construction and engineering disputes.
  • Among other claims in tort, Article 758 of the Civil Act stipulates that where any loss is caused to a third-party by reason of a defect in the construction or maintenance of a structure, the person with possession of the structure (typically the contractor where works are ongoing) will be liable to the third-party. However, where the person with possession of the structure can show that the loss occurred despite his or her exercise of due care to prevent the loss, the owner of the structure will be liable to the third-party.
  • The court can award a plaintiff remedies for both economic and non-economic damages (Article 751 of the Civil Act). As a general rule, punitive damages are not recognized under Korean tort law. However, certain statutes do impose punitive damages in the form of treble damages for violations of specific provisions. For example, under the Fair Transactions in Subcontracting Act, fixing unreasonable remuneration for a subcontractor within the meaning of the Act, refusing acceptance of delivery without justification, reducing the contract price without justification, etc., may entitle the subcontractor to damages up to three times the loss suffered by the subcontractor.

Updated: June 3, 2019