WHERE MATERIALS ARE UNIQUELY SPECIFIED BY NAME AND PROVE TO BE UNSUITABLE FOR THEIR PURPOSE OR ARE DEFECTIVE, WHO IS RESPONSIBLE – THE EMPLOYER OR THE CONTRACTOR?

In the case of Young and Marten Ltd v McManus Childs Ltd (1968) 9 BLR 77, an action was commenced as a result of defective roof tiles being supplied and fixed on a housing site. The tiles supplied were referred to as ‘Somerset 13'. When supplied the tiles appeared sound and there was no complaint with regard to the fixing. However, within 12 months of being fixed considerable numbers of the tiles began to disintegrate in consequence of a latent defect. The dispute was referred to the House of Lords which held that there will be an implied term in the contract for the supply of work and materials that the materials used will be of merchantable quality. A further term could be implied that the materials used will be reasonably fit for the purpose intended.

The circumstances of the particular case however could result in these terms not being implied and it was conceded by counsel that as the product was specified by its patent or trade name ‘Somerset 13', the circumstances were sufficient to exclude the implied terms as to fitness for purpose intended, but this was however not sufficient reason to exclude the implied term of merchantable quality. The Contractor was therefore liable regarding roof tiles which were substandard and contained a latent defect.

Hudsons Building and Engineering Contracts (tenth edition) at page 295 states, "The basic warranty in regard to materials is that they shall be of good quality, that is to say good of their kind described, and this warranty is not displaced by the stipulation of a branded product or of the source of supply in the original contract documents or, it is submitted if the supplier is nominated under a provision in the contract. Beyond any doubt this basic warranty is independent of fault.............. Undoubtedly however, as a general rule the Contractor's obligation will not extend beyond supplying a material of good quality conforming to the express description of it in the contract documents, if the description is precise and the choice of the material is indeed the architect's or engineer's".

In summary then, where the goods or materials are specified by a unique name, patent or trademark, the Contractor is liable if the goods are substandard - the term used is merchantable quality.

If however the goods are good of their kind but are not suitable for their intended use or the circumstances for which they are specified, then liability rests with the Employer.

Clause 8.5.10 of the JBCC Series 2000 Principal Building Agreement relieves the Contractor of any liability for a latent defect in material and goods specified by trade name, provided that the Contractor cedes to the Employer any right of action that may exist against the Supplier or Manufacturer.

DEFINITION

- A patent defect is a defect which a reasonable examination at final completion would disclose.

- A latent defect is a defect which a reasonable examination would not disclose but which manifests itself at some later date.

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