Joint Liability Between Builder and Architect for Having Certified Non-existent or Poorly Executed Works

Article 1.254 of the Civil Code (Código Civil) establishes that “a contract exists from the moment one or more persons agree to bind themselves, with respect to one or more others, to give something or render some service”. Likewise, Article 1.257 of the Civil Code says verbatim: “Contracts only produce effect between the parties that grant them and their heirs (…)”

On this premise, the parties of a contract are those who agree to be bound by what is expressly agreed therein. In the case we will analyse below, this principle is demonstrated.

The owner of a plot of land (the developer) entrusts a construction company (the builder) with the construction of a single-family house under the construction contract. In said contract, with the developer and the builder being the intervening parties, they agree that the construction company will be the one to carry out the drafting of the project in order to obtain the building permit and also, to be in charge of appointing and hiring an architect for the facultative, technical, and coordinative management. Therefore, the construction company hires the services of an architect to assign them said management.

The execution of the work is budgeted at a determined price, and a term of eleven months is established for its completion. From that moment on, the way in which the parties operate is for the builder to draw up the work certifications, the architect returns them signed, and subsequently the builder sends these certifications to the developer so that they can proceed with the payment according to what has supposedly been executed.

Where does the dispute arise?

The construction company breaches the construction contract, exceeding not only the agreed price of the work but also the stipulated deadline. After one year, the construction company abandons the work without having completed it. In addition, it is discovered that the certified works do not correspond to the executed works, declaring more construction than was actually executed and, consequently, making the developer pay for non-existent or simply poorly executed works.

And where does the Architect lie in this matter?

The architect simply signed all the work certifications the construction company sent him without paying due attention to what he was signing.

In short, the developer ends up paying not only more than the agreed price, but also for work certifications that do not reflect the reality of what was executed.

Who is responsible for this breach of contract and to whom can the developer claim?

According to Article 1.254 of the Civil Code, the responsible party for the breach of contract is the constructor, not being able to derive contractual liability to the architect as he is not a party to the contract of the execution of the work.

At this point, it is worth mentioning the Supreme Court Sentencing no.410/2010 of June 23^rd in which, in a case analogous to the one described here, it states “The architect is also jointly and severally liable for the refund of said amount, insofar as he approved work certifications greater than what was executed, thus creating in the plaintiff the confidence that the same had been executed and giving rise, therefore, to its disbursement. The architects irregular action in the approval of the work certifications makes him liable for the difference left by contractual fault, not derived from the contract for the execution of the work, but from having accepted management of the work.”

Likewise, it is considered that not only is contractual liability incurred, but also that the architect becomes liable for a lack of diligence in the exercise of his role by incurring a breach in the obligations established in articles 12.3.e) and 13.2.e) of Law 38/1999 of the 5^th of November 1999, on building regulation.

To conclude, it is important to pay attention to the partial work certifications that are signed during the execution of the work since, in the case of irregularities between the certified work and the executed work, the liability may be jointly shared between the construction company and the architect even if the latter is not a party to the contract.

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