Defect

While there is no specific definition, a ‘defect’ refers to an aspect of the workmanship or materials used in the construction of a building or structure that has not been carried out according to the contractual obligations of the party responsible.  This could include, for example, cracked brickwork, inadequate insulation or faulty electrics.  Defective works could also more broadly refer to flaws in design, such as an inadequate design allowing for leaks in the roof or plumbing.    

Under most contracts, contractors are obligated to return to site and remedy any defects within a certain period after practical completion.  For example, see clause 2.35 of the JCT Design and Build Contract 2016 or clause 44.4 of the NEC4 ECC.  Latent defects, referring to those that occurred before practical completion or during the liability period only to be discovered later, remain the contractor’s responsibility outside of this period.  However, there is no automatic rights for contractors to return to remedy defects.  

A construction contract may also provide for other obligations and remedies for defects, such as the obligation to provide a warranty or guarantee or the right to withhold payment until defects have been remedied. 

If you enjoyed this definition on ‘Defect’, you can find the rest of the letters in our A-Z of Construction Law Contractual terms via the publications section of our website here.

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