Construction newsletter | July 2017

Editorial

The digital transition: a challenge for construction law practitioners

The BIM (abbreviation of “Building Information Modeling”) is a cooperative process enabling the various participants in a construction project to share, at all stages of the project, information related to the design, performance and operation of a building.

Such cooperative work is structured, in particular, around a digital mock-up accessible to all project participants. There is no doubt that the use of the BIM, regulated by Directive 2014/24 on public procurement of 26 February 2014 implemented in France by Ordinance No. 2015-899 of 23 July 2015, will have consequences on our practice area, in particular as regards the builders’ statutory liability. This issue is to be monitored closely.

A CMS guide was recently published in order to forecast the BIM’s consequences on the regulations applicable in several countries.

Also, abundant case law developments have led us to examine the persistent difficulties in determining the statute of limitations and time limits applicable to recourses among contractors.

Focus

Remedies among builders: Statute of limitations and time limits
The decision entered by the Conseil d’Etat on 10 February 2017 (CE, 10 February 2017, No. 391722, Fayat Bâtiment) provides us with an opportunity to revisit the legal basis of the remedies among contractors and the time limits applicable to such actions.

Construction contracts

• Does the invalidity of a preliminary reservation agreement affect the sale agreement?
  Cass. 3rd Civ., 27 April 2017, No. 16-15.519 
• Method used to assess the conformance of a building in connection with a sale on completion
  Cass. 3rd Civ., 18 May 2017, No. 16-16.627
• Consequences of the cancellation of a sale on completion on the property loan agreement
  Cass. 3rd Civ., 1 June 2017, No. 16-14.428 

Execution of private works

• The indemnification of the loss does not eliminate the obligation to pay for the completed works
  Cass. 3rd Civ., 20 April 2017, No. 16-13.885 
• Recharacterization of a first demand guarantee as a bond
  Cass. com., 20 April 2017, No. 15-18.203 
• Until when is it possible to prove the payment guarantee provided for in Article 1799-1 of the French Civil Code?
  Cass. 3rd Civ., 18 May 2017, No. 16-16.795 
• Conditions under which a transfer of possession of the works prior to completion is deemed tacit acceptance
  Cass. 3rd Civ., 18 May 2017, No. 16-11.260 

Builders statutory liability 

• Future defects may be covered by the builders’ decennial warranty
  Cass. 3rd Civ., 18 May 2017, No. 16-16.006 
• Application of the decennial warranty to heat pumps installed after the construction of the works
  Cass. 3rd Civ., 15 June 2017, No. 16-19.640

Other liability theories 

• Preliminary conciliation obligation in case of disputes between architects
  Cass. 3rd Civ., 29 March 2017, No. 16-16.585 
• Conditions applicable to the subrogation in relation to the subcontractor’s direct action
  Cass. 3rd Civ., 18 May 2017, No.1 6-10.719