Rethinking traditional approaches of parties' autonomy in construction contracts: decennial liability as a case study

Abstract

PurposeEmployers, contractors, subcontractors and engineers often believe that they have a “common language”, which consists of drawings and specifications, notwithstanding that drawings and specifications must be interpreted and understood in their legal context. Accordingly, due to the legal-technical aspects of construction, it is essential that construction contracts should strike the right balance between the interests of all stakeholders. The purpose of this paper is to examine this issue in depth.Design/methodology/approachTo examine this issue in depth, this paper is divided into four sections. First, general background on Jordanian construction law. Second, the conformity between the Jordanian law and international federation of consulting engineers (FIDIC) rules. Third, crystallisation of parties autonomy in construction contracts. Fourth, per defects liability in construction contracts as a case study.FindingsConstruction disputes are not only a legal issue. It is also a technical challenge to which an interdisciplinary body of legal scholars, contractors, engineers and construction experts should respond by setting flexible standards as practices could change faster than rules. Judges in particular are bound to understand the peculiar technical-legal nature of construction disputes. This should be a good starting point for developing case law in the field of construction which is rather limited. In this way, construction case law can be established gradually and cumulatively on a case by case basis.Originality/valueAs far as the author is aware, the issue of construction contracts in Jordan has not been researched comprehensively before from technical and legal standpoints. This paper represents a first attempt to examine the issues arising in this difficult and important subject.