Validity of the clause limiting liability in the work contract

The TS considers that the clause of the construction contract that limits the contractual liability of the architect in relation to the developer is valid as long as it does not harm third-party purchasers.

Lawsuit is filed by the promoter of a work against the designer for contractual breach of its obligations derived from the LOE, due to the collapse of the work that had been awarded. In the construction contract, a clause of limitation of liability for defects or errors in the project had been established.

The judgment of first instance dismisses the claim. The Court understands that it has not been proven that the appellant had breached her obligations as a designer and that the lack of definition of the project did not affect the fall of the structure.

On appeal, the Court understands that there is a contractual breach, since the defendant architect had not fulfilled the contractual obligations, and therefore could not prevent the collapse of the structure. The Chamber also understands that the contractual clause of limitation of liability is contrary to the law.

Appealed in cassation, it is estimated by the Supreme Court, therefore, in view of the contract, it is established that between the plaintiff (owner and promoter of the work) and the defendant company a technical assistance contract is signed with a limitation of liability.

In reference to the validity of the aforementioned clause, it must be understood that, based on art. 1255 of the Civil Code nothing prevents the referred clause, agreed between the owner and the architect, since art. 17.1 of the LOE allows exceptions to contractual agreements, as long as they do not affect third parties.

In addition, the LOE prevents the limitation of liability, when this may harm third-party purchasers.

And in the present case, there are no third-party purchasers, as it concerns the design of a public square (roundabouts within the scope of the special master plan for uses and infrastructures “Ciudad de la Luz” Alicante).

It must be understood that art. 2 of the LOE does not allow a roundabout to be considered (as a single constructive element), as a “building”, so the Building Planning Law would not be applicable in this case, nor would its limits of responsibility.

Therefore, the limitation of liability in clause thirteen of the technical assistance contract is considered applicable in favor of the defendant.