Laws of Contract And Tort in The Construction Industry

Charles M. Maduka

According to Henry David Thoreau, an American Naturalist, Poet, and Philosopher; ‘ It is not desirable to cultivate a respect for the so much as for the right.

Law is a prerequisite for orderliness, peace, and harmony in society. A lawless society is unimaginable and alien to the modern world. Besides, the significance of law in society can’t be over-emphasized.

Howbeit, the law acts as a code of conduct. What then is law, one may ask? The Collins English Dictionary defines law as’ A rule or body of rules made by the legislature; It’s a rule of conduct!

Going forward, the construction industry provides shelter and infrastructure.  The shelter is one of the necessities of life while infrastructure is the stock of basic facilities and equipment needed for the functioning of a country or area.

In most definitions, construction covers the entire stages associated with the delivery of buildings and infrastructure. The trajectory involves and begins too with planning, design, and financing and continues until the property is developed and ready for use. It traverses repairs and maintenance works, alteration and restoration et al.

Nigeria is a common-law country. Common law is a body of law based on court decisions rather than on codes and statutes. Suffice it to stress that offer, acceptance, consideration, and intention to create relations and legal capacity are the ingredients required to beget a legally binding contract in Nigeria. In other words, there are four basic elements of a valid contract namely – offer, acceptance, consideration, and intention to enter a legal relationship.

Conversely, the concept of tort plays an important role in contract administration and project management, especially in negligence, fraud/deceit, assault, and trespass ( to land and property ) among others. The tort may be defined as a civil wrong involving a breach of duty fixed by the law, such duty being owed to persons generally and its breach being redressible primarily by an action for damages.(Prof.I E Sagay)

Furthermore, the original intention of tort is to provide full compensation for proved harm. Tort lawsuits as civil litigation are classified thus: Intentional tort, Negligence and strict liability. Negligence is by far the most common type of tort. Examples include but are not limited to physical harm; Slip- fall accidents due to wrong use of building materials like floor tiles; faulty scaffolding and even failure to carry out simple concrete quality -control test such as slump test.

It is pertinent to emphasize that the process of housing and infrastructural development is complex and capital-intensive. Given the above, a well – written contract agreement is vital to the success of any construction project. It should contain everything that is agreed upon by the Employer( Client) and the contractor.

Besides, the contract  should outline the terms and conditions of the agreement; the rights of both parties, the type of contract ( fluctuating, fixed – sum, turn-key, etc), the contract sum, the scope of work; the period of completion, defect–liability period and payment of retention sum, insurance policy and dispute resolution.

Whilst, there are other types of construction contracts such as Design- Bid- Build, Design – Build among others, the most common standard forms of construction contract in Nigeria are ; The Joint Contract Tribunal ( JCT) Standard Form of Contract; The Standard Form of Building Contract in Nigeria ( SFBCN) and The International Federation of Consulting Engineers Contract ( FIDIC). It has been discovered that the use of standard- form contracts in Nigeria is convenient, time- saving, and cost-effective in the cconstruction industry.

It is interesting also to note that the type of contract notwithstanding, it is important to have a well-drafted contract agreement before embarking on a building construction project. This will not only enable the work to be completed on schedule but will also prevent unnecessary disputes and waste of time and resources of the parties involved.

“The whole difference between construction and creation is exactly this: that a thing constructed can only be loved after it is constructed; but a thing created is loved before it exists”- Charles Dickens.

Maduka, Architect, writes from Lagos