Architects liability in issuing certificates

Abstract

Architect’s liability is a vast knowledge area that can only be established with understanding of laws, statutory and terms of contractual agreement either implied and/or expressly. An architect is distinguished for his duty as professionals that purposely served as designers and lead consultants in building construction industry. However, not many understand the obligations that come with the professionalism. A professional is subjected to duties that are spelt out in statutory bodies. Architects in Malaysia are subjected to Professional Code of Conduct which specifically outlined his responsibility, obligation and duties. Architects have high expectation in terms of skills and judgment and are liable towards obligations that are imposed on him. Architects who had been engaged by client under employment agreement need to act as agent for that particular client. Among duty of an agent is to serve the needs of the client. Although architects are given discretionary power under contract of employment, his powers are limited and may only act upon express authority by the client. There are limits to what an agent can do in forming, varying or instructing. However, an architect has an independent duty to issue certificates in building contract. Architect’s independent duty as certifier is laid down in famous case of Sutcliffe v Thakrah where it was contended that an architect acting as certifier has independent duty and not to act as employer’s agent. As certifier, architect must form and act on his own. He must act fairly and impartial between client and contractor in rendering his duty as certifier. Being professional does not guarantee perfection. An architect is only required to render service to the extent of what a reasonable man of his profession may have done. However, if the architect is found to have breached of his duty and obligation, he may be held liable depending on the claim of the wrongdoings. Nevertheless, there are cases where the architect is being doubtful in rendering his duty as certifier. There are cases where the employer claims that the architect had been negligent by not issuing certificates of completion. There are also cases where the architect refused to issue certificate of payment. Although some of these claims is caused by architect’s own negligence and are held liable, there are also cases where the architect did not issue certificates as there are conflicts of interest between client and the architect claimed that he only had acted so as he needs to perform his duty of care towards third party. Nonetheless, this research is conducted to determine the extent of liability that could be rendered upon architects in performing his duty as certifier.