Notes · Completion · defects
Patent and latent defects
A patent defect you can see on inspection; a latent one stays hidden until it surfaces years later. The first is put right inside the contract's defects period. The second is a race against a limitation clock — and in the Gulf, a ten-year decennial one. Seen and unseen, on the same building.
Seen and unseen
A defect — whether in design, materials or workmanship — is patent if it is plain, evident and conspicuous: the kind of thing you would spot on a reasonable inspection, with the naked eye. It is latent if it would not be found by the inspection one might reasonably expect the works to be subjected to (Baxall Securities v Sheard Walshaw Partnership, 2002). That single distinction — could a reasonable inspection have seen it? — decides which of two very different regimes applies.
Patent defects: the defects period
Patent defects are dealt with inside the contract. Practical completion is not certified while any but the most trivial remain. A defects-liability period then runs — usually 12 months, long enough to take the works through all four seasons — at the end of which they are inspected, a defects list is issued, the contractor makes good, and a certificate of making good confirms it. Under FIDIC this is the Defects Notification Period (Clause 11), closed by the Performance Certificate (11.9).
Latent defects: racing the clock
A latent defect surfaces after that — and the contractor is not excused just because the making-good papers were issued. Now the question is limitation. Under the Limitation Act 1980 a breach-of-contract action must be brought within six years (a simple contract) or twelve (a deed) of the breach — usually taken as practical completion of the whole works (Thameside v Barlow Securities, 2001). Deliberate concealment stops the clock (King v Victor Parsons, 1973). In tort, the Latent Damage Act 1986 adds three years from discovery, with a fifteen-year longstop — but that route is open only against professionals: in Robinson v Jones (2011) the Court of Appeal held there is no concurrent liability in tort against a builder. So against the contractor, the six- or twelve-year contract clock is usually all the employer has.
The Gulf point: decennial liability
On a Gulf project the latent-defect picture changes. UAE law imposes decennial liability: Article 880 of the Civil Code makes the contractor and the supervising engineer jointly liable for ten yearsfor total or partial collapse, and for defects that threaten the works’ stability — a strict liability that runs regardless of the defects period or any making-good certificate, and that the parties cannot contract out of. So on Gulf work, do not stop at the contract’s defects period: the ten-year decennial clock is running underneath it.
Patent defects you fix within the defects period. Latent defects you fight against a limitation clock — six or twelve years in England, ten under UAE decennial liability. Know which clock is running before it runs out.