Beware of summoning recovery

If a work is defective, you must summon the contractor or subcontractor to repair the defects within a reasonable time. Often such a summons refers to an expert's report explaining the defects and how to repair them. However, you should be careful with this, as it has turned out.

This summer, the East Brabant District Court ruled that it is up to the contractor to determine the manner in which defects must be repaired. A summons in which the manner of repair was mandatorily prescribed (through its own expert report) is contrary to this principle, the court said. This resulted in the client being unable to recover damages to the roof from the contractor.

The lesson to be learned from this is that only summonses should be issued to repair defects. The method of repair should not be prescribed. Only exception: when it is obvious that the contractor's planned method of repair is unsound.

The client's judgment that the work is defective will often be based on their own observation or on a report from an expert they have hired themselves. Even with this, however, you must be careful, as it has been shown.

The Amsterdam Court of Appeal recently ruled as follows: the contractor may take the position that only the report of an independent expert answers the question of whether there are defects and, if so, how they must be repaired. The client's summons, which was based on the report of an expert hired by himself, was therefore inadequate.

The contractor in question, after being summoned, had offered to repair any defects if those defects (and the manner of repair) were determined by an independent expert. The client did not accept this offer. Consequence: the principal thereby found himself in default, the court said. Since the contractor was not in default and the client himself was, the client could not claim damages.

Whether the court's opinion is correct remains to be seen. In any case, it raises questions. However, when discussions arise with the contractor or subcontractor about the quality of the work or the manner of repair, it is wise in any case to jointly appoint an expert. Summoning based only on one's own expert or one's own findings might not be sufficient.