WHO MUST PAY FOR ADDITIONAL COSTS resulting from DIFFICULT site CONDITIONS?
Me Annie Boivin-Breton, in collaboration with Me Pascale-Dionne Bourassa
Generally speaking, unforeseen execution constraints in enterprise contracts must be assumed by the contractor. However, there is an exception to this principle when the difficulties encountered result from a failure by the client to fulfill the duty to inform incumbent upon him.
The duty to inform is an immediate corollary of the allocation of risks.
The contractor who assumes the risks has an obligation to inform himself but the client cannot, by action or omission, contribute to distorting this assessment of risk.
The obligation to provide information in the context of enterprise contracts varies depending on the expertise of the respective parties to the contract. Thus, the relative expertise of the client in relation to that of the contractor increases the duty to inform incumbent upon the client, especially when the client provides the contractor with information that falls within the client’s area of relative expertise and that this information proves to be wrong or incomplete.
The duty to inform is a continuing obligation that applies at all times during the performance of the contract. During the work, the client must therefore endeavor to find solutions with the contractor and must behave in a manner that facilitates the completion of the work.
Link to the French version of the article: D3B- Obligation de renseignement donneur d’ouvrage