The Risk of Loss or Damage of Materials in a Contracting Agreement

Author: “Mohammad Mufid” Ratib Qurashi

Introduction:

Based on Professor Abd el-Razzak el-Sanhuri’s masterpiece “Al-Wasīṭ fī sharḥ al-qānūn al-madanī al-jadīd” and current relevant Qatari Legislations, we have started a series of articles trying to shed the light on contracting agreements, in depth and in a simple manner. The previously discussed topics were:

• Defining Contracting Agreements.
• Handing Over in Contracting Agreements.
• Handing Over breaches in Contracting Agreements.

In this Article, we will discuss the risk of loss or damage of materials in contracting agreements in two different stages, before and after the handing over.

Prior to the handing-over process:

Article 690 of the Qatari Civil Law stipulates that “Where a thing is lost or damaged due to an unforeseen incident or force majeure prior to its delivery to the employer, the contractor may not demand payment of the agreed wage or the value of the materials provided by him unless the employer is in breach of his obligation to take over the work at the time of loss or damage.”  Whereby this Article stipulates a general rule for the liability resulting from the loss or damage occurring to the materials, the Article explicitly states that the contractor shall be deemed liable for such loss or damage in materials provided by himself, and the contractor may not issue any claim for any of his wages or payments. The only exception to this rule is related to the employer’s refusal of taking over the completed works.

After the handing-over process:

To start with, we need to highlight that notifying the employer for the delivery of the works or delivering the works shall be dealt with in the same manner in regards with the liability related to the damage or loss of the materials.

“RES PERIT DOMINO” The thing is lost to the owner. This phrase is used to express that when a thing is lost or destroyed, it is lost to the person who was the owner of it at the time. For example; if damages occurred to the materials provided by the employer to the contractor due to force majeure, the employer shall not ask for any compensation, since he is still the owner of the material and the thing is lost to the owner. However, this is not always the case. Sometimes, the damages or losses occur due to the contractor’s mistake or fault. Both articles 685 and 686 of the Qatari Civil Law discuss this topic as it mentions what could be considered as a failure or a mistake by the contractor. If the contractor failed to notify the employer of any defects of the provided material, failed to take all reasonable precautions to protect the materials, failed to follow technical practices for their proper use or failed to account for the materials to the employer, then the contractor shall be deemed liable for the consequences of such negligence. Nevertheless, if the damages or losses were caused by the employer’s mistake or fault, he shall bear all the losses and damages. In addition, the contractor’s wages shall not be affected by such incidents, and he shall be paid by the employer.

For further information in regards with losses and damages in contracting agreements, don’t hesitate to contact any of our professionals at Alhababi Law Firm.