The aim of this paper is to establish the design obligations implied in design and build contracts.
Design obligations are insufficiently clear where a contractor is under a "dual role" such as design and build. The aim of this paper is to establish the design obligations implied in design and build contracts. There is a ‘generally accepted position’ but there is concern that Trebor & Cadbury v ADT has modified that position, leaving obligations to be implied by common law where statute has failed, thus putting the ‘generally accepted position’ in doubt.
This paper analyses three areas:
- the ‘generally accepted position’ at common law and statute prior to cases concerning D&B contracts.
- IBA v EMI & BICC, which is identified as the ‘leading case’ on design obligations in design and build.
- The case of Trebor & Cadbury v ADT. A desk top study approach is utilised to analyse the statute law and the judicial argument to identify the principles of law and application of facts. The main finding is that the ‘generally accepted position’, that the law implies a duty of fitness for purpose on design and build contractors’, in the absence of express words to the contrary, remains intact and is not modified following the Trebor & Cadbury v ADT case.
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