In the construction industry recently, the issues of “fit for purpose” and “suitability” have become increasingly controversial and are subjects of dispute between the contracting parties. Unfortunately, many contractors and sub-contractors have either misunderstood or did not appreciate the contractual and/or legal implications of such undertaking and liability when they enter into a contract with such term/s, either expressly stated or implied into the contract when they choose to propose alternative design under traditional/conventional contracting method or system.
In common law, there is an implied warranty that the goods shall be fit for such purpose for which they are required and that the buyer had relied on the seller’s representation of the goods suitability, unless expressly disclaimed, excluded or modified.
Such warranty of fitness for purpose, whether implied or expressly stated, can be found in some construction contracts that require the Contractor to undertake some form of design liability such as in Design and Build contracts and those contracts with optional or alternative design provision.
In this article, BK Entrusty aims to provide readers with a better understanding of the terms Fitness for Purpose and Suitability, by answering the following:-
- What is Fit for Purpose?
- What is the difference between Fit for Purpose and Suitability for Purpose?
- Is fit for purpose and/or suitability stated in Malaysian forms of building/construction contract?
- Is Fit for Purpose applicable to contractors who undertake shop or production drawings?
- Is the Contractor responsible to ensure that the nominated sub-contract works are fit for its purpose?
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