Rectification Works Clause Samples

Rectification Works. According to Chapter 5 § 17, paragraph 1, the contractor has a right and a duty to rectify whatever may have been noted as defects73 in an inspection report or which the employer has reported in writing in accordance with Chapter 5 § 15. Furthermore, Chapter 5 § 17, paragraph 4, provides that “If the Contractor is not responsible for the defect, he is entitled to payment as provided by Chap- ter 6 §§ 1–7 and 11”, interpreted a contrario, “If the Contractor is responsible for the defect, he is not entitled to payment”74. However, if a defect is to be considered as “not substantial”75 according to Chapter 5 § 18, the defect may instead (of being rectified by the contractor) be handled through a deduction of the Total Works Price. Consequently, the contractor is obliged to perform works and supply materi- als/goods, etc. necessary to fulfil the rectification obligation provided by Chap- ter 5 § 17. How significant is the scope of this obligation to rectify? Is the scope of rectification works limited in some way? AB 04 does not answer these ques- tions, although the Supreme Court has had reason to adjudicate these issues. In NJA 2018 p. 653, 17 July 2018, the Supreme Court clarified that if a defect cannot be rectified without other works being first uncovered, the con- tractor is also liable: (i) for uncover-works, prior to the rectification; and (ii) for reinstate-works thereafter. According to the Supreme Court, the contrac- tor’s liability for these measures is neither limited by the concept “Total Works” (Sw. Entreprenad) (uncover- and reinstate-works may include measures outside the contractor’s Total Works)76 or the limitations of liability stated in Chap- ter 5 § 1177 (the provision is not applicable). However, the contractor shall only be liable for such measures that: (i) could be foreseeable when the agreement 73 AB 04’s “definitions and notes” section provides that a “Defect” is: “non-conformance which implies that a part of the Total Works has not been executed at all or has not been executed in accordance with the contract.”.