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


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).

Oman Small Flag Oman

mani law is silent with regard to the duty of care. However, the concept is recognised by the Omani courts. For a claim to succeed in tort the claimant would typically need to establish:

  • existence of a duty of care;
  • breach of duty;
  • foreseeability;
  • causation; and
  • loss and damage.

The Omani courts will consider whether the offending party has performed an obligation with the duty of care expected of a reasonable person in similar circumstances or a professional acting within the scope of his duties.

In view of the general requirement for a claimant to demonstrate losses were direct or actual, and the Omani courts’ reluctance to award damages on a speculative basis, foreseeability is likely to be a necessary component of a successful claim in tort.

The ECL expressly provides that an engineer must perform his tasks with all due professional skill and care. The Oman Standard Form Contract requires the contractor to perform his duties with all reasonable skill and care.

Whether or not an obligation was performed with “reasonable skill and care” would be a matter for the court’s determination. In such cases, the court may appoint a technical expert to determine whether a contractor has executed the works with the reasonable skill and care expected of a contractor executing similar works.

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.

AB 92/ABT 93 states 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.

Spain Small Flag Spain

Both possibilities exist in our jurisdiction.

Indonesia Small Flag Indonesia

Yes, the provision of tort or extra contractual obligations is recognised under the Indonesian legal system, but in a very generic terms being known as perbuatan melawan hukum or unlawful act, as contained in Article 1365 of the Indonesian Civil Code (“ICC”) which states as follows:

“Every unlawful action, which brings losses to another party, shall oblige the person who due to his / her fault results in the loss, to pay compensation for such losses.”

In Indonesia, the basis of a civil lawsuit is either: (1) based on a claim for a breach of contract;or (2) based on an unlawful act. All lawsuits based on an unlawful act or tort are based on this Article 1365 of ICC. If, for example, there was no prior contractual relationship between the parties and if one of the parties believe that they have incurred damages through actions of the other party, then this shall be a basis for filing a civil lawsuit based on an unlawful act.

Indonesian legal scholars general view that a claim for unlawful action must fulfil the following elements:

  1. The action must be unlawful:

    This means that if such person conducts an activity which violates the other person’s right or if such a person conducts an activity against its own responsibility. It implies that such action should violate other person’s right or violate its own responsibility based on the provisions of laws and regulations.

  2. The action must result in a loss:

    Loss in this regard may comprise of material and immaterial losses.

  3. The action must be due to a fault:

    Fault may arise due to express intention to commit the fault or due to negligence. A party is also responsible for the actions of the parties who are under its supervision.

  4. There is causal relationship between the loss and the action:

    This means that there must be a direct relationship between the action and the loss arising [from such action].

Mexico Small Flag Mexico

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

Colombia Small Flag Colombia

In Colombian jurisdiction we have a complete regime of extracontractual civil liability in which all of the construction activities are categorized as hazardous activities and therefore have a special treatment since the responsibility of someone who causes the damage is presumed.

Switzerland Small Flag Switzerland

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

Australia Small Flag Australia

Yes, tort law is recognised in Australia.

Norway Small Flag Norway

Yes. In general, under Norwegian tort law, liability for damages can arise provided certain conditions are met. The three conditions for damages are basis of liability, proximate cause (casuality) and financial loss.

In relation to construction projects, the parties should be aware that one can be held liable for pollution damage. Further, strict liability applies to hazardous and dangerous activities, such as the use of explosives.

Sweden Small Flag Sweden

The Swedish Torts Act is applicable to both contractual and non-contractual relationships. In contractual relationships, the Torts Act applies to the extent that there are not deviating provisions in other rules or in the parties’ contract. Under the Torts Act, a person is liable for physical damage and personal injury which he causes intentionally or by negligence. In non-contractual relationships, the liability does not cover pure economic loss unless there is a criminal offence. In contractual relationships, however, the liability for negligence also covers pure economic loss.

Hong Kong Small Flag Hong Kong

Tort law is recognised under the common law in Hong Kong.
Negligence and occupiers’ liability are the most common types of tort actions. Occupiers’ liability is partly governed by the common law and partly by the Occupiers’ Liability Ordinance (Cap. 314).

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.)

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 professional 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 expose a construction professional to unintended significant risk.

Serbia Small Flag Serbia

Only the Serbian Law on Contracts and Torts is recognised in our jurisdiction.

UAE Small Flag UAE


Articles 282 – 298 of the Civil Code deal with “harmful acts” (i.e. tort law).

Article 296 states that “…any condition purporting to provide exemption from liability for a harmful act shall be void”.

Therefore it is clear that this liability cannot be limited or excluded by contract. A tort based claim must be made within three years “…from the day on which the victim became aware of it”.

Contractors sometimes rely on these articles of the Civil Code when asserting that the Employer or Engineer is acting unfairly. This is often coupled with the argument that the Employer is in breach of its obligation to act in good faith (Article 246 of the Civil Code).

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 in section 311 (2) 2, section 280 (1) and section 241 (2) German Civil Code.

Austria Small Flag Austria

In the Austrian law governing liability, a distinction is made between contractual liability and tort liability.

France Small Flag France

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

Greece Small Flag Greece

Apart from the obligations directly emanating from a contract, the Greek Civil Code ('GCC') recognises extra-contractual (ex lege) liability in the following forms:

  • Torts (914-938 GCC);
  • Pre-contractual liability (197-198 GCC);
  • Unjust enrichment (904-913 GCC);
  • Negotiorum gestio (730-740 GCC).

Saudi Arabia Small Flag Saudi Arabia

Under Islamic Law, death, accidental injury, or damage to or destruction of property gives rise to non-contractual liability. In case of a male Muslim, the liability for death is capped at US$ 80,000, with damages for personal injuries pro-rated with reference to this ceiling. Damages is respect of damage to or destruction of property are limited to the property’s actual value.

Malaysia Small Flag Malaysia

Yes, as a common law jurisdiction, the Malaysian courts recognize tort law. Typically, the Malaysian courts would first have regard to the contractual terms and matrix in determining the parties’ obligations. Having said that, in some circumstances, the courts may permit recourse to tort law to supplement (but not supplant) the contractual provisions.

Updated: October 16, 2018