If danger is your bread and death your butter, you might be attracted by contracts containing fitness for purpose obligations. Otherwise, steer clear
What could a samosa possibly have in common with the building industry? Actually, more than you would imagine. The “samosa” appeal of Filobake vs Rondo and Frampton International last July gives some of us in the industry spicy food for thought.
The case revolved around the extent of “fitness for purpose” obligations. That term is fairly self-explanatory: the finished product must be suitable for the purpose that the parties jointly intended. Much importance is attached to the issue of whether an obligation is a “fit for the purpose” one, not least because it can raise the duty of care beyond, say, reasonable skill and care (where liability depends on negligence) to an absolute obligation to achieve the purported aim, where liability can exist even without negligence.
Back to our samosas. Rondo contracted with Filobake, the samosa producers, to provide equipment to make pastry that would “produce samosa to the attached recipe”. In conjunction, Frampton International contracted with Filobake to supply an oven and a cooler “capable of drying pastry at rates of up to 20 m per minute”.
Much expert evidence was produced as to what one looks for in good samosa pastry. Apparently, it should be capable of being folded so as to make a tidy pastry parcel in which the filling can be placed without that parcel cracking.
The pastry equipment and the oven did not work well – at least not in conjunction with each other. However, without dwelling on the finedetail, Filobake lost its case against its suppliers. It was in something of a hot lime pickle. It applied for leave to appeal. The judge hearing Filobake’s application had to decide whether Rondo’s fitness for purpose obligation went beyond ensuring that the pastry had a given width and thickness to actually producing samosa pastry – indeed samosa to the specified recipe. He decided that it did.
The judge turned to the obligations of the second defendant, Frampton International. Here, too, he found that there was an implied fitness for purpose obligation on Frampton that meant that its equipment should work independently (which, arguably, it did), and also with Rondo’s equipment (which, arguably, it didn’t). Leave to appeal was granted because, among other reasons, the judge at first instance had interpreted these fitness for purpose obligations too narrowly.
I hope you have learned to treat the samosa with more respect. They are something of a work of art …
Now, the construction industry is one where parties work in conjunction with one another. We all know you have a general duty to co-ordinate your work with that of others. However, it is worth bearing in mind that even these onerous fitness for purpose obligations can go beyond considering the outcome of your own work in isolation, to assessing whether it operates successfully in conjunction with the work of others.
So where might you encounter fitness for purpose obligations in construction? Contractors are often subject to them, if not specifically through their building contract or subcontracts, then quite possibly through the Sale of Goods Act 1979 or the Supply of Goods and Services Act 1982.
Consultants, not normally being suppliers of goods, are less likely to be subject to these acts, but it is not uncommon for a client to impose a fitness for purpose obligation in the contract of appointment. I would suggest that consultants strongly resist these, principally because of the danger that the level of care can be raised to the absolute obligation described above. Even if a consultant does not fear that this might curb its artistic flair and disallow any “state of the art” defence, it might expect to encounter considerable difficulty persuading its professional indemnity insurers to cover a fitness for purpose obligation.
Fitness for purpose aside, if you have learned nothing else, I hope at least you have learned to treat the humble samosa with more respect. They are something of a work of art, it would appear.
Melinda Parisotti is an in-house barrister at Wren Managers, which manages a professional indemnity mutual for architects