The liability of the designer and contractor for the solidity of the building is regulated by the Law of Contracts and Torts, but the question of the origin of liability and its legal consequences has remained open. The design agreement precedes the construction agreement, so it is only logical that the persons designing and constructing guarantee that the result of their work will be safe for the contracting authority and all third parties.
The Law of Contracts and Torts dedicates its article 644 to the building designer and the contractor, i.e., to their liability. They are liable for the defects which disturb the solidity of the construction and originate from the design-technical documentation, i.e., from the construction works. Solidity is considered a unity of several characteristics of the construction object and its parts: balance, firm attachment to the ground, firm attachment of building sections to the load bearing structure and the durability under ordinary loads. Not a lot can be discovered about the legal nature of this liability through linguistic interpretation of the article 644 itself, apart from its limited duration (10 years from the acceptance of works). The questions of its origin, the legal relationship between the designer and the constructor (internal relationship), as well as the position of the guarantor against the contracting authority and each subsequent acquirer of the building (external relationship) are unable to find their answers in the law.
For closer determination, and more importantly, implementation of legal regulations, we will classify each civil liability as contractual or noncontractual, applying the criteria of liability origin. This is of significance since the Law of Contracts and Torts reduces the scope of damage which would justify seeking compensation to “predictable damages” in the case of contractual responsibility.
In respect of the guarantee for solidity, the response to the question of its origin requires a brief retrospective. Firstly, this liability is provided in favour of the contracting authority, and each subsequent acquirer of the building, by law. The next stone principle of the law of obligations – inter partes effect of the contract, is concluded so that the statement of noncontractual nature of this liability would be the only correct one, since subsequent acquirers of the building are not in a contractual relationship with the designer and the contractor. Let us subject this to further examination. First, let’s remember that the legislator will name the legal subjects from contractual relations created through caused damages the tortfeasor and the injured party, while the contracting parties will be called the debtor and the creditor (i.e., their specified names from the named contracts). In the same manner the article on liability for the solidity of building names the designer and contractor as responsible persons. Secondly, the last paragraph of article 644 forbids contractual limitations and exemption of liability for solidity. Finally, having in mind these two notes, we should address the article “limitations and exemption of liability” (art. 265 Law of Contracts and Torts). It allows the debtor and creditor (not the tortfeasor and the injured party) to agree on the limitations of liability. If the starting point was to be that the nature of liability of the designer and the contractor is noncontractural, why would the law forbid that which is not even permitted – exclusion and limitation of one tortious liability? Such presented systematic interpretation of the law brings into question the paragraph on noncontractual liability. Is this in fact a contractual liability? In the event that the contracting authority is calling on accountability for the solidity, there is no doubt that in the Serbian legal regulations this would be the case of contractual liability. In this case, the disrespect of an existing prior legal relationship would make the debtor liable. However, the law extends the liability in favour of each subsequent acquiror of the building over a ten-year period from the acceptance of works. These persons are not part of a contractual relationship with the designer and the contractor, and yet have the same rights as the contracting authority. Looking at the bigger picture, there would be no reasons to differentiate the legal positions and legal remedies of those subjects that had contracted the works and the subjects that have acquired the building subsequently. The application of different liability regulations for the solidity of building would lead to an absurd situation of the subsequent acquirer of building having greater rights than the contracting authority. The volume of compensation for damages from contractual responsibility is limited to predictable damages, while the principle of compensation for entire damages is applied for compensation of damages from noncontractual liability. We can see that the following of one principle of the Roman law (inter partes effect of contract) would lead to the exemption of another (nemo plus iuris transfere potest quam ipse habet). The affairs surrounding construction are not saving their impact just for the contracting parties, they remain an interest to a larger circle of participants in legal transactions. In support of that, the contracting authority is often found not to be in a legal relationship with the designer since the responsibility of gathering the technical documentation is handed over to the contractor. Nevertheless, the contracting authority retains the right of calling on the liability of the designer for the solidity. With that, the purpose and reach of the construction contract and the accompanying design contract is highlighted. In deliberate interpretation of the articles dedicated to the guarantee for solidity, we can conclude that the consequences of contractual liability should indeed be attributed t.
As for the grounds for liability of the designer for nonsolidity of the building it should be noted that the culpability is of no significance. For those same reasons that have been specified in the section on the liability of the designer for the faults in the design, the contractor should also objectively be liable. In fact, it seems that those reasons that are in favour of objective liability are in this case particularly justified. That is to say, the solidity of the building is a pleonasm. A building is constructed to be steady – there is no building which is not solid. The designer and the constructor are liable to the contracting authority objectively and in solidarity. Upon payment of compensation, they shall mutually regress according to the degree of culpability.
