Design-Professional Liability: Two Frameworks
The service of an architect, designer or consulting engineer legally sits between two frameworks. On the one hand, it is a result of labor — in the form of a contract of work: under it the contractor undertakes to perform the work contemplated by the contract, and the customer must pay the agreed remuneration. On the other hand, it is a service — in the form of a contract of mandate: under it the mandatary must carry out one or several acts entrusted to it in the name and at the expense of the mandator.
In practice a design professional's contract often contains both elements: delivery of a result (drawings, a project, documentation) and conduct of a process (consultation, coordination, supervision). The correct model of liability is built precisely on this distinction — and defining it is the first step in drafting the contract.
Personal Performance and Delegation
One of the significant rules of the contract of mandate is the requirement of personal performance: the mandatary must personally perform the mandate, except where it is permitted to transfer it to a third person, or is forced to do so by the circumstances that have arisen. The involvement of auxiliary persons is allowed. For a design professional this means that the client chooses a concrete professional — and it is impossible to hand the matter to another without permission.
Even where delegation is permitted, liability does not disappear entirely: where the transfer of the mandate to a third person is permitted, the mandatary answers only for such fault as attaches to it in the transfer and in the selection of that person. In other words, the choice of the performer remains the professional's responsibility to the extent corresponding to its qualification.
Compensation of Damage Without Fault
A special rule applies in the liability of professional services: the mandator must compensate even damage arising without its fault that befell the mandatary in performing the entrusted act, where the damage occurred as a consequence of a significant danger connected with the performance of the entrusted act due to the mandator's instruction. This norm is connected with the dangerous nature of the work — and its essence is that an instruction creating the danger entails compensation even without fault.
Exceptions are defined as well: no such claim exists where the damage that occurred should be covered by the fee, or where the damage was caused by the conduct of the mandatary. Where the covering of the damage by the fee becomes disputed, the burden of proof lies on the mandatary. And where the mandatary performs the entrusted acts without reward, it answers only for damage caused intentionally or by gross negligence — in a gratuitous relationship the threshold of liability is higher.
The Delictual Layer
Beside the contractual liability there always stands the delictual layer: a person who causes damage to another by an unlawful intentional or negligent act is obliged to compensate that damage. Damage caused by a design professional to a third person (for example, a neighbor of the construction) is assessed precisely within this framework — and here contractual limitations no longer protect.
How a Lawyer Builds Such a Dispute
Preparing the dispute proceeds in two directions. First the character of the contract is determined — result-oriented or service-oriented — and the ground of the claim is chosen accordingly; then the content of the professional standard is described — what was to be expected of a person with the concrete qualification — and whether the act performed corresponds to it. Finally, the damage is measured. The attorneys of Legal.ge will assist you both in defending against design-professional liability and in representing the injured party's interests.
Frequently Asked Questions
Below are frequent questions on design-professional liability.
What is a mandate contract?
A contract under which the attorney-in-fact must perform one or more entrusted acts in the name and at the expense of the principal.
May the mandate be delegated?
It must be performed personally, save where delegation is permitted or compelled by circumstances; where permitted, the attorney is liable only for fault in delegating and in choosing the person; engaging assistants is allowed.
Is no-fault damage compensated?
Yes — the principal must compensate even damage arising without fault where it resulted from a significant risk connected with the performance of the entrusted act.
How We Help on Legal.ge
Drafting the relationship with a design professional protects both parties if three conditions are clearly described. The first is the scope of the assignment: what the service includes and what it does not, which investigations are included in the price and which are valued separately. The second is the description of the professional standard: according to which norms and rules the professional works, since the assessment of quality is built on precisely that measure. The third is the model of liability: whether the claim is built on the result or on the process, and which cases are excluded.
Given the personal character of the service, stipulations on delegation matter as well: whether the right of transfer to a third person exists and who answers for the choice. Such precision turns the contract into a preventive instrument — and in the event of a dispute gives the parties a clear position.