The construction contract is one of the most important contracts in the building sector — a contract under which the contractor undertakes to carry out work in return for a fee without being subject to the employer's supervision. The Kuwaiti Civil Code regulates it in detail.
Difference from employment: the contractor is independent — works with their own tools and methods. An employee is subject to the employer's supervision and direction.
Contents
1) The Concept
- Definition: a contract under which the contractor undertakes to make something or perform work in return for a fee — without being subordinate to the employer.
- Independence: the contractor works with their own methods and tools — not subject to the employer's supervision in execution.
- Consensual: formed by consent — but writing is practically essential in building projects.
- Scope: covers construction, installation, maintenance, demolition, and any physical work.
2) Contractor's Obligations
- Execution: completing the work according to the agreed specifications, plans, and conditions.
- Materials: if the contractor supplies materials, they warrant their quality and conformity.
- Timeline: completing the work by the deadline — delay creates liability and penalties.
- Notification: notifying the employer of any obstacle affecting execution.
- Delivery: delivering the completed work free of defects.
Material liability: if the employer supplies materials and they are defective, the contractor must notify them. Silence makes the contractor liable for the defect.
3) Employer's Obligations
- Payment: paying the agreed fee upon delivery — or per the payment schedule.
- Taking delivery: accepting the work upon completion — unjustified delay is deemed acceptance.
- Enabling the contractor: providing site access, plans, and permits.
- Materials: delivering materials if agreed — in a timely manner.
4) Decennial Liability
Substance
- The contractor and engineer guarantee against collapse or defects threatening the building's safety.
- Period: ten years from delivery.
- Joint liability between contractor and architect.
- Includes soil defects the engineer failed to identify.
Conditions
- The building or fixed structure.
- Total or partial collapse or a defect threatening structural integrity.
- Within ten years of delivery.
- Exemption agreements are void (public order).
Limitation: the decennial liability claim lapses three years from the date of collapse or defect discovery — and in all cases ten years from delivery.
5) Subcontracting
- Permissibility: the contractor may subcontract all or part of the work — unless the contract prohibits it.
- Liability: the original contractor remains liable to the employer for the entire work.
- Direct action: the subcontractor has a direct action against the employer up to the amount owed to the original contractor.
- Workers: the contractor's workers also have a direct action against the employer within what is owed to the contractor.
6) Delivery and Acceptance
- Provisional delivery: delivery of the work to the employer with a handover report documenting the condition.
- Defects liability period: a period after provisional delivery during which the contractor repairs apparent defects.
- Final delivery: after the defects liability period and repair of defects, final delivery takes place.
- Implied acceptance: if the employer takes delivery without reservation, acceptance is implied.
Effect of acceptance: final acceptance extinguishes the employer's right to claim for apparent defects — but does not extinguish decennial liability for hidden defects. See contracts and obligations.
7) Termination
By the employer
- May terminate at any time — subject to compensating the contractor.
- Compensation covers the contractor's expenditure and lost profit.
- May terminate for breach after notice.
By the contractor
- If the employer breaches obligations (non-payment, failure to provide access).
- If performance becomes impossible due to an external cause.
- Death of the contractor if their personal skill was a consideration.
8) Practical Guidance
For the employer
- Execute a detailed written contract covering specifications, timeline, and price.
- Require a performance bond from the contractor.
- Appoint an independent supervising engineer.
- Do not sign a handover report without thorough inspection.
For the contractor
- Document every specification change in writing.
- Notify the employer immediately of any obstacles.
- Keep daily progress logs.
- Consult a lawyer when a payment dispute arises.
Construction-contract dispute or claim for building defects? Contact Attorney Meshari Obaid Al-Enezi — Yumnaak Law Firm.
