REALWorld Law

Typically, who are the parties to an engineering or construction contract or package of contracts and who is responsible to whom?

The main sources of law regulating the design and carrying out of private building works are:

• the Italian Civil Code and, in particular, section 1655 et seq.,
• Law 1150/1942 and Presidential Decree 380/2001 (for town planning and building aspects),
• Section IV of Legislative Decree 81/ 2008 (for health and safety aspects)
• article 29 of Legislative Decree 276/2003 (for employment aspects).

Last modified 2 Aug 2023

Typically, who are the parties to an engineering or construction contract or package of contracts and who is responsible to whom?

A contractor may be required to obtain various permits and/or exemptions from zoning plans before it can commence the construction of a project. These are as follows.

• A building permit is generally required.
• If the design for a public building or a public facility conflicts with the zoning plan, an exemption from the zoning plan must be granted to obtain a building permit.
• If the design for a private construction project conflicts with the zoning plan, a variation of the zoning plan must be granted to obtain a building permit.
• A demolition permit may be required.
• A felling permit may be required to remove any green areas.
• Planning permission may be required in connection with infrastructure.
• If the area where the building is located is affected by some public liens – as, for instance, the landscape or the hydrogeological one – the obtainment of a preliminary authorization by the competent public body is required
• If the building is subject to the cultural lien pursuant to the Legislative Decree 42/2004, the works shall be authorized in advance even by the competent Superintendence for the Cultural Heritage.

Whether or not a specific permit is required depends mainly on the type of construction.

Construction activity is subject to a building licence, issued by or filed with the competent local administration board/committee. Four types of licence exist:

1. a building permit;
2. a certified notice of commencement of works (Segnalazione certificata di inizio attività SCIA);
3. a formal notice of commencement of works (Comunicazione di inizio lavori asseverata); and
4. 4. a notice of commencement of works (Comunicazione di inizio lavori CIL).

Building permit

The building permit is an administrative licence issued by the competent local administration committee to allow the construction in compliance with the relevant town planning provisions.

When applying for the licence, the property owner must present plans for construction, prepared by a professional expert (for example, an engineer or architect) registered with the competent professional board, specifically describing the technical specifications of the construction works.

If the local board of administration approves the project, the building permit is granted. However, if the construction works relate to particular area for which special rules are established (for example, environmental, architectural and artistic) the issuance of the construction permit is subject to the board’s prior approval.

SCIA

In relation to construction works, a simplified type of building licence called a SCIA is allowed. The property owner must merely communicate to the competent local authority the beginning of the construction works.

The contractor can begin the works on or after the date of submission of the notice.

However, within 30 days from the submission, the competent authority checks the notice and whether it complies with the relevant legal requirements and local regulations and, where there is a proven failure to comply with relevant legal requirements and conditions, prohibits further activity and orders the remediation of potentially harmful work already carried out.

CILA - CIL

In relation to some minor construction works, simplified types of building licences called CILA and CIL are available. The property owner must merely communicate to the competent local authority that construction works are to commence.

The construction works can begin on or after the date of submission of the notice.

The authority may check whether the notice complies with the relevant legal provisions and local regulations.

Last modified 2 Aug 2023

Typically, who are the parties to an engineering or construction contract or package of contracts and who is responsible to whom?

Health and safety in relation to construction activities is regulated by Legislative Decree No. 81 of 9 April 2008 (Safety Law).

The underlying principle of the Safety Law is to protect the health and safety of workers during the execution of their working activities within any relevant workplace (including construction site works). The Safety Law applies to all productive sectors except for, among other things, the research of, enquiries into and cultivation and storage of liquid and gaseous hydrocarbons within certain territories.

The Safety Law also establishes:

• specific employer obligations in relation to construction activities in a workplace where normal (non-construction) activities are carried out. These obligations complement the general safety obligations that must be fulfilled in relation to all normal employment activities
• ·rules on the health and safety measures that must be undertaken in temporary and moveable construction sites applicable to, among others:
• the employer (or, if appointed, the person responsible for the works);
• the director of the works;
• the safety co-ordinator; and
• contractor and subcontractors.

Last modified 2 Aug 2023

Typically, who are the parties to an engineering or construction contract or package of contracts and who is responsible to whom?

Legislative Decree 152/2006 provides for a list of building works that may have a potential impact on the environment (eg oil refineries or other specific infrastructures).

Depending on the type of town planning provision issued in order to authorize the construction of the building works, the following activities could be required to be carried out:

• Should the building works be carried out on the basis of a Town Planning Plan or Program, the approval of such plan or program is subject to a strategic environmental evaluation (VAS), whose main purpose is to provide the public authorities with an overall assessment of the sustainability of the plan or program from an environmental point of view also in consideration of town planning considerations.
• Furthermore, should the building works be carried out pursuant to a specific project, such project is subject to an environmental impact evaluation (VIA), whose main purpose is to provide the authorities with an overall assessment of the environmental impact of the single project and of its modalities of execution.
• Lastly, if the plan, project or intervention is likely to have a significant impact on a Natura 2000 site, it is subject to an impact assessment (VIC). It analyses possible negative interferences on the Natura 2000 site, considering possible joint effects of other plans or projects, to assess cumulative impacts that often occur over time.

Last modified 2 Aug 2023

Typically, who are the parties to an engineering or construction contract or package of contracts and who is responsible to whom?

According to Italian law the construction of a new development involves the prior issue of an administrative permit that usually sets forth the infrastructure works to be carried out in order to support the new development. Depending on the type of permit issued by the competent local authority, the developer may be requested either to construct, at its cost and expense, the necessary infrastructure works should the building works be regulated by a town planning agreement (‘Convenzione’) or, should such infrastructures already exist due to the fact that the building works are carried out in an already developed area, to pay to the local authority monetary contributions in terms of urbanization fees.

Last modified 2 Aug 2023

Typically, who are the parties to an engineering or construction contract or package of contracts and who is responsible to whom?

Construction activity is subject to a building permit or self-declaration, respectively, issued by or submitted with the competent local authority board/committee.

As far as the works themselves are concerned, the contractor must do the work with all proper skill and care.

Breach of this duty includes the use of materials containing patent defects. There is also an implied warranty that the contractor will use materials that are reasonably fit for the purpose for which they are to be used (whether or not that is a purpose for which the materials are commonly supplied) and of good quality. If a contract is silent in relation to liability for design, there is an implied term that the services will be carried out with reasonable skill and care. The burden of proof falls on the party claiming that the supplier of the service (design and build contractor, design sub-contractor or consultant) has failed to use reasonable skill and care. These terms will be implied only if the contract is silent on the issues; express terms are required to displace the implication of these terms.

Note that should the building works involve the utilization of reinforced concrete, the law provides that the designer must submit to the competent public authorities, prior to the commencement of the relevant works, the technical details of the reinforced concrete portions of the building works and that the final testing of the reinforced concrete structures shall be carried out by the Civil Engineering Corps (Genio Civile).

Last modified 2 Aug 2023

Typically, who are the parties to an engineering or construction contract or package of contracts and who is responsible to whom?

Payments to contractors and sub-contractors are ordinary structured as periodical (usually monthly) instalments corresponding to the actual progress of the works as certified by the director of the works for the account of the employer. A retention (in the range of 5-10% of each instalment) is applied to each instalment as security of the fulfilment of the contractor’s/subcontractor’s obligations and is released upon positive testing of the works.

Advance payment may be agreed by the parties. In such a case, specific collateral may be requested to the contractor/subcontractor to secure the reimbursement of the advance payment in case of early termination of the contract.

In the case of design consultants, payments are usually agreed on a milestone basis (at pre-agreed specific milestones or stages).

Last modified 2 Aug 2023

Typically, who are the parties to an engineering or construction contract or package of contracts and who is responsible to whom?

Yes, parties can agree on a fixed term of completion of the works

In cases of delays in the completion of the project by the contractor or in the achievement of intermediate milestones, both legislative and contractual remedies apply.

Legislation

The client can generally be compensated for damage caused by the contractor’s delay (such as damages for not being able to use the project), without prejudice to the client’s right to start legal proceedings to terminate the contract due to contractor’s default in case of material delay. The damages will include client’s loss and the loss of profit, to the extent that they are a direct consequence of the delay.

Contract

Parties commonly agree on the penalties in cases of contractor’s delay. Typically, parties agree that both:

• a certain penalty amount must be paid by the contractor for any day or week of delay compared to the intermediate milestone and/or the term of completion; and
• the penalty is owed to the client (who does not have to prove that it suffered damage).

These agreements do not exclude the right of the client to be compensated for any further damage, unless this right is expressly stated in the agreement. If the amount of the penalty is too high and is contested by the contractor, a court can reduce it. The penalty must be a fair evaluation of the damage.

Last modified 2 Aug 2023

Typically, who are the parties to an engineering or construction contract or package of contracts and who is responsible to whom?

Contractual mechanisms for dealing with variations to the works vary depending on the variation.

Agreed variations

The contractor cannot vary the agreed technical specifications unless authorized by the client in writing. The client can request the removal of unauthorized variations. Even if the variations have been expressly authorized, if the price of the entire work is determined as a lump sum amount, the contractor cannot receive any consideration for the variations or additions, unless agreed otherwise.

Necessary variations

Variations to the technical specifications can be made and the relevant costs determined by a judge if both:

• the variations are necessary to complete the work according to the best practice and the law; and
• the parties do not reach an agreement.

In practice, these variations are only made due to changes in the law during the construction.

If the cost of the necessary variations exceeds one sixth of the agreed total price, the contractor can withdraw from the contract and receive, depending on the circumstances, a reasonable indemnity. The client can also terminate the contract if the variations are material. However, the parties often agree that the costs of the necessary variations are divided between the parties and that the contractor waives its right to terminate the contract if variation exceeds the above limit.

Variations ordered by the client

Variations ordered by the client cannot:

• exceed one sixth of the contract price; or
• entail material changes to the nature of the works or in the quantity of each portion of the works.

The parties of a private construction contract usually agree to depart from the above limitations.

Even if agreed as a lump sum, the contractor can request compensation for the extra costs arising from variations requested by the client.

Last modified 2 Aug 2023

Typically, who are the parties to an engineering or construction contract or package of contracts and who is responsible to whom?

According to the usual market practice, the contractual parties define, in the relevant contract, the concept of ‘completion’ on the basis of their respective interests. Such definition is normally inserted in the contracts since the applicable laws do not provide for a definition of completion of the building works. The certification of completion is normally issued by the consultant appointed by the employer (ie the director of the works), who will be responsible for supervising and verifying the compliance of the works with the relevant project and technical specifications. Moreover, the construction contracts may provide that, in case of disputes between the parties with respect to the assessment of the completion of the works, an independent expert is appointed, either by the parties or by an independent body, in order to proceed with the an independent assessment the outcome of which shall be binding to the parties.

Last modified 2 Aug 2023

Typically, who are the parties to an engineering or construction contract or package of contracts and who is responsible to whom?

The construction contracts are subject to the normal statute of limitations regarding contractual breaches, equal to ten years from the date on which the contractual breach takes place and the non- defaulting party is legally entitled to act against the other party. However, the following specific limitations are provided by the law in relation to construction contract.

Hidden defects

With regards to hidden defects of the works and non-compliance of the works with the agreed design the contractor may be summoned by the employer within two years from the date of delivery of the works, provided that the employer has notified the contractor, within 60 days from the discovery of the defect, of their existence. Should the employer be summoned before a court by the contractor for the payment of the contract price, the employer may in any event counterclaim in respect of the defects provided this has been notified as per the previous paragraph and, in any event, within two years from the date of the acceptance of the works. Please note that the employer shall not be entitled to enforce such guarantee should have the employer accepted the works and the defects were known or recognizable by the employer unless the contractor has not disclosed their existence with malice.

Of course, the parties may agree in the contract on improvements and/or extension of the above defect warranty regime (eg including coverage of recognizable defects or specifying that the defect warranty period will start as from the issuance of the positive testing certificate).

Serious defects

With regards to serious defects of the works and risk of collapse and ruin, the employer (and its successors in title) shall notify the existence of the defect within a year from the discovery. Subsequent to the submission the notice, the employer (or its successor in title) shall be entitled to file a claim against the contractor within a year.

Last modified 2 Aug 2023

Typically, who are the parties to an engineering or construction contract or package of contracts and who is responsible to whom?

According to Italian law the contractor will be liable vis-à-vis the end users for damages due to its fault as long as the damages are a direct and immediate consequence of the fault. While the liability for hidden defects and non-compliance of the works could be in principle excluded, the regime applicable to the contractor’s liability for serious defects and risk of collapse and ruin cannot be departed.

With regard to the liability of the land developer procuring the works to the end users of the building, it is often the case that the development agreement entered into with the end-user will limit his liability for the design and construction of the works to a stipulated period (usually ending on the expiry of the defects liability period under the building contract for the development) after completion of the works – except either for claims that have been issued or where the intention to make a claim in respect of accrued and identified rights of action have been notified to the developer before the expiry of the period.

Last modified 2 Aug 2023

Typically, who are the parties to an engineering or construction contract or package of contracts and who is responsible to whom?

According to case law, the designer is jointly liable with the contractor vis-à-vis the end users in the event of serious defects and risk of collapse and ruin of the building works. Under Italian law, pure economic loss – which includes the costs of remedying defects in a building, as well as loss of profits, loss of income, damage to stock and so on – is recoverable from non-contractual parties exclusively on the basis of a judicial ruling attesting the existence and the quantification of the damages, the damaging party’s fault or malice as well as the causal relationship (nesso di causalità) between the damaging party’s behaviour and the occurrence of damages. This liability cannot be excluded.

Last modified 2 Aug 2023

Typically, who are the parties to an engineering or construction contract or package of contracts and who is responsible to whom?

With respect to the case of serious defects and risk of ruin and collapse, the successors in title of the employer are granted with the same rights granted in favour of the employer vis-à-vis the contractors and, to the extent applicable, the designers and other consultants. With respect to hidden defects, the successors in title of the employer can benefit of the rights granted in favour of the employer vis-à-vis the contractors, designers or other consultants provided that the relevant contract and/or warranties are assigned to the successor in title. It is worth noting that in such a case the successor in title will be entitled either to act against the employer, in its capacity as vendor of the completed building works under the sale and purchase contract, or against the contractor as successor to the employer.

With regards to the tenants, the law does not grant them with rights vis-à-vis either the contractor or the consultants. In such a case, the tenant will therefore have the right to file a claim against the landlord, should the latter be either the employer or the successor in title, on the basis of the lease contract’s provisions. The landlord will then be entitled to file a specific claim against the contractors and/or the consultants on the basis of the relevant contracts.

Finally, with respect to the lending banks, the law does not provide specific remedies. In consideration of the above the parties may agree a mechanism whereby the lender will have the right to step into the contractual relationship existing between the employer and the contractor, in case of certain events which may have an impact on the construction contract (such as, but not limited to, subcontracting, withdrawal, early termination and/or termination due to one party’s default) in order to preserve the lender’s interests and rights.

Last modified 2 Aug 2023

Typically, who are the parties to an engineering or construction contract or package of contracts and who is responsible to whom?

There are no specific construction courts or tribunals operating in the private sector. Construction disputes are dealt with by ordinary courts (Tribunali). Decisions of the courts can be appealed before courts of appeal. Decisions of the courts of appeal can be appealed before the Supreme Court.

Last modified 2 Aug 2023

Typically, who are the parties to an engineering or construction contract or package of contracts and who is responsible to whom?

Depending on the value of the building works, the construction contracts usually provide for an arbitration clause that may refer to either technical or legal disputes arising from the building works. With respect to litigation through the national courts, the arbitration procedure allows the parties to obtain a ruling in less time than litigation through the national courts. Please note however that the arbitration procedure involves the payment of higher legal expenses and fees to the arbitration panel.

Last modified 2 Aug 2023

Typically, who are the parties to an engineering or construction contract or package of contracts and who is responsible to whom?

There are several ADR methods:

• amicable settlements;
• judicial or extra-judicial conciliation;
• arbitration; and
• mediation, by which the parties use a neutral, independent and impartial person, who guides the parties to their own mutually satisfactory agreement.

There are also non-adversarial forms of conciliation provided for by special laws for specific sectors, such as employment, agriculture and telecommunications. There are no specific non-adversarial forms to be used for construction disputes.

Last modified 2 Aug 2023