In today's article, as a continuation of the topic related to contracts concluded by investors with designers, we will present the topic related to the responsibility of architects in the scope of the prepared design documentation.
Pursuant to art. 20 section 1 item 1) of the Act of 7 July 1994 – Building Law (hereinafter referred to as the “ Building Law ”), the basic duties of a designer include the preparation of a building design in a manner consistent with the requirements of the Act, the arrangements specified in administrative decisions concerning the building project, applicable regulations and principles of technical knowledge.
Undoubtedly, any defects in the design documentation prepared by an architect can have serious consequences for the investor's investment, and ultimately for the investor himself. Design errors can imply not only increased investment costs but, more importantly, damage to the investor or third parties if design flaws result in a structurally defective building.
Therefore, how does the applicable legal system protect an investor who commissions a designer to prepare design documentation in the event of a design defect or improper performance of the contract by the architect?
According to current legal regulations, an architect bears professional, disciplinary, civil and criminal liability.
As stated in Article 95, Section 4 of the Construction Law, a designer is professionally liable for failure to perform their duties, as well as for negligent performance of those duties. Furthermore, in exceptional circumstances, if a designer flagrantly fails to comply with the provisions of Article 5, Sections 1-2b of the Construction Law (regulating the basics of proper construction), they are additionally subject to a fine under Article 93, Section 1 of the Construction Law.
However, if a construction disaster occurs due to a defective design, the designer may also be held criminally liable under Article 163 §1 item 2 of the Penal Code by imposing a prison sentence of one to 10 years.
Furthermore, the designer is contractually liable to the investor for any failure to perform or improper performance of obligations arising from the contract entered into with the investor. Although, in accordance with the Regulation of the Minister of Finance of December 11, 2003, on mandatory civil liability insurance for architects and civil engineers (the " Regulation "), the designer is required to maintain third party liability insurance for damage caused by the designer's acts or omissions in connection with activities performed within the scope of their license, the coverage cannot be less than EUR 50,000 per event. It may turn out that the resulting damage exceeds the architect's insurance coverage.
Moreover, pursuant to the aforementioned Regulation, third-party liability insurance does not cover, among other things, damages resulting from contractual penalties or infringement of copyrights and patents. Therefore, it is undoubtedly important to regulate the scope of the designer's contractual liability in the contract concluded with the designer. Such extensions can be achieved by specifying a higher insurance sum for the architect, above the minimum amount specified in the Regulation, or by establishing a deposit, deducted from the designer's remuneration and returned to the designer after the warranty period for design defects expires. Furthermore, the contract should protect the investor against both defects in the prepared design documentation and defects in the building constructed based on the defective design.
But what if the investor has not sufficiently secured his interests in the event of damage resulting from improper performance of the contract by the designer?
Because a design contract is, under the Civil Code, a contract for specific work, the provisions of the warranty for defects in sales will apply accordingly to defects in the design. However, warranty rights are excluded if it is demonstrated that the investor, as a business owner, failed to examine the design in a timely manner and in a manner customary in the industry, and failed to inform the designer of the discovered defect in a timely manner.
If there are no grounds for holding the architect liable under the regulations concerning warranty for defects, the designer will be liable under the general principles of the Civil Code, i.e.
a) pursuant to Article 471 of the Civil Code, the debtor is obligated to redress damage resulting from non-performance or improper performance of an obligation, unless the non-performance or improper performance is a consequence of circumstances for which the debtor is not responsible.
Redress of damage under this legal basis will depend on the investor demonstrating that the damage actually occurred and that there is an adequate causal relationship between the damage and the architect's actions.
b) pursuant to Article 415 of the Civil Code, which governs tort liability, anyone who, through their own fault, causes damage to another is obligated to redress it.
Tort liability, unlike contact liability, will not result from a contract concluded between the investor and the designer, but from generally applicable provisions regulating liability for damage to property or personal injury resulting from a tortious act. Consequently, this also applies in the event of damage resulting from a structural failure of a building constructed based on a defective construction design.
In conclusion, in addition to professional, disciplinary and even criminal liability, the designer is also liable under the contract for any failure to perform or improper performance of an obligation towards the investor with whom the architect has concluded a contract, as well as for the obligation to compensate for damages in a situation where his failure to perform his obligations causes damage to anyone.
It should be emphasized, however, that despite a number of obligations incumbent on the designer and possible negative consequences for him in the event of failure to comply with them, the designer's responsibility is limited to preparing an architectural and construction design in accordance with the provisions of law and principles of technical knowledge.
The above implies that the key to securing the investor's interests, including protection against possible damages resulting from defects in the design documentation, is the proper and possibly broad regulation of the designer's liability in the design contract.
In the next article, we will discuss the changes that the legislator introduced to the Polish legal system in December.
This article is for informational purposes only and does not constitute legal advice.
Legal status as of December 20, 2022
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