Defects in construction and the temporary disconformity principle

Abstract

There is some dispute about the status of pre-completion defects in construction project whether or not it amounts to breach of contract. This happens because of the development of the temporary disconformity theory, which suggests that defective work discovered before project completion is not a breach of contract, but rather it is a temporary disconformity. The argument is that the contractor cannot be in breach of their obligations until the project completion date and they can put right any defect that arises as long as the period of the construction project is not ended. This theory allows the contractor who makes defective work to rectify it if he can, and if the defects are fully remedied, it does not constitute a breach of contract. However, this theory has faced judicial opposition on the basis that it would allow serious and extensive defective work to be unchallengeable as long as the contractor could argue that there is still time to do rectification work until the project duration ends. It means that the employer has no right to claim for damages even though the contractor does defective work, and it also means that the employer has to pay for the contractor?s non-conformity works. Besides, defect can also be too serious to be considered as temporary when it happens numerous and too frequent. Normally, remedies are available for employer if construction defects happened and the claim will involve compensation for the loss or damage suffered as a result of the defects. However, the right to recover damages from a contractor can only arise when it can be shown that the defects have caused fundamental breach. The objective of this study is to determine what types of defects may amount to fundamental breach and what is the consequence of temporary disconformity in construction contract. In addition, this research will also evaluate whether this theory is effective in solving disputes regarding defects before project completion. The parties involve may know what types of defects may be considered as temporary disconformity, whether employer can claim for damages if pre-completion defect happens and what are the circumstances this theory may apply. It appears that this theory can only be relied upon if the defect is not a substantial breach and it has supportive view on behalf of the contractor to be given reasonable time to carry out the repairs as long as the defects are possible to be rectified on time and the contractor has the capacity to do the rectification work by himself. However if he fails to do so, then the employer may exercise his rights by either claiming for damages or terminate the contractor