Article 1688 of the Civil Code of Lower Canada enacts that, ‘I If a building perish in the whole or in part within ten years, from a defect in construction, or even from the unfavourable nature of the ground, the Architect superintending the work and the Builder are jointly and severally liable for the loss.’ Such Article held to be declaratory of the law of Lower Canada, as it existed before the promulgation of the Code. A Builder, before the passing of the Code, contracted to execute, in a workmanlike manner, all the work requisite to be done in building and completing Christ Church Cathedral, in Lower Canada, according to the plans and drawings made by an Architect, upon foundations already made and completed by a previous Builder, under the direction of his Employer’s Architect, the expense of which foundations the contract stipulated should be estimated and allowed for. The Builder erected the Cathedral in strict conformity with the contract, under the direction of the Architect, and in a workmanlike manner; but the Tower of the Cathedral, shortly after it was erected, and before the works were completed, sunk, and considerable damage was done. The cause of the sinking was found to be the insufficiency of the foundations, as planned by the original Architect, and constructed by the former Builder. This defect, though not patent, might have been discovered by the Builder of the Cathedral, before making the contract : Held (affirming the judgment of the Court of Queen’s Bench to Lower Canada), in an action by the Builder against his employer (the Employer claiming to deduct from the contract price agreed to be paid to the Builder, the amount of his charge for repairing the damages caused to the building by the sinking of the Tower, through the insufficiency of the foundations) that the Employer was entitled to make the deduction, as the Builder was responsible for the defect in the foundations, and was not freed from liability either by acting under the directions of his Employer’s Architect, or by reason of the defective foundations being the work of the preceding Builder. The decision in the case of Brown v. Laurie adopted.
Citations:
[1871] EngR 46, (1871) 8 Moo PC NS 223, (1871) 17 ER 296
Links:
Construction, Commonwealth
Updated: 05 May 2022; Ref: scu.280227