Risk relating to ground conditions under French and English Law

A mandatory principle defining the liability of a contractor derives from Article 1792 of the French Civil Code, which provides that:

‘Any builder of a construction is liable as of right, towards the building’s owner or purchaser, for damages, even resulting from a defect of the ground, which imperil the stability of the building or which, by affecting it in one of its constituent parts or one of its equipment items, render it unsuitable for its purposes. Such liability does not take place where the builder proves that the damages were occasioned by an extraneous event.’ (emphasis added)

Accordingly, ground conditions do not constitute a basis for exonerating the contractor from liability within the circumstances expressly defined in Article 1792 of the French Civil Code. Article 1792 indirectly implies that surveys and studies are done in relation to the ground conditions so that the construction is solid and fit for purpose. Even when the contractor is not responsible for the design of the construction, it must ensure that the stability of the construction is not imperilled by the ground conditions. Otherwise, the contractor may be held liable under Article 1792.

However, the contractor will not be liable for defects resulting from ground conditions if the burden to conduct a ground survey was expressly allocated to the project owner.