Thus, the role of an Architect would appear to be similar to that of any other consultant like a medical consultant or a financial consultant. But an Architect is often called upon to perform two duties which other consultants are not normally required to perform. They are :
i) To act as the agent of the Owner during the implementation of the project, and
ii) to act as quasi?arbitrator in settling the disputes with the project participants (suppliers, contractors, other specialists etc.).
This combination of different roles (consultant, agent and quasi?arbitrator) makes the job of an Architect complex and unique. Quite often, the Architect, who has to play different roles with conflicting objectives (as the agent he has to protect the interests of the owner and as an arbitrator he has to give an impartial award) finds himself entangled in litigation. So, an Architect has to be aware of the legal implication of the various decisions he is called upon to take to avoid the legal pitfalls. A few issues which normally crop up during the implementation of a project and which might lea to disputes and the decisions given by the courts in similar cases are discussed in this article.
An Architect, after accepting an assignment, will sometimes find it necessary to delegate a part of the work to others. This is due to the fact that completion of large projects require services of specialists in different fields such as electric, air conditioning, acoustics, etc. The extent to which an Architect can sub?contract the job awarded tom him has in some cases been a matter of dispute. According to Creswell (Building Contracts). “In the case of an Architect or Engineer, his personal qualifications and character are more often than not, the most important consideration in the mind of the employer when entering into a contract with him for his services as Architect or Engineer, and he is therefore deemed, as a general rule, to undertake to exercise in person, the authority conferred upon him.” An Architect, as explained earlier, is an agent of the employer and an agent cannot delegate his duties which involve his personal skill and knowledge to another person. As per Section 190 of the Indian Contract Act, “An agent cannot lawfully employ another to perform acts which he has expressly or impliedly undertaken to perform personally, unless by the ordinary custom of the trade a sub?agent may or form the nature of the agency, a sub?agent must, be employed. “This rule has been upheld in several cases. In Hemming v Hale, the Judge observed that “Where a man employs an agent, relying upon his peculiar aptitude for the work, it is not competent to that person to delegate the trust to another, but where the act to be done is of such a nature that it is perfectly indifferent whether it is done by A or B, and the person originally entrusted remains liable to the Principal by whomsoever the thing may be done,” this rule does not apply.
Generally speaking , an Architect can delegate his duties only with the express or implied consent of his employer. When there is an express provision in the contract with the employer no problems will arise. The implies consent can be assumed when it is customary for all Architects to employ specialists for specific works such as engaging a quantity surveyor for measurements, or a land surveyor for preparing an accurate plot plan etc.
The next question is the liability of the Architect for the mistakes committed by the consultants of sub?contractors to whom the work is delegated by him. It will not help an Architect to contend that he had selected qualified and reputable persons for doing the work and hence he is not guilty of negligence. This aspect was considered in Morsek Cleaners v Hicks and it was held that “if the Architect however, prudently or inevitably, chooses to delegate part of his duties, whether to consultants or specialist subcontractors, he will remain responsible for their negligence to the employer. “Further it was also said that “if an architect undertakes to design a building for reward, he undertakes that the various parts of the project will be properly designed with the necessary skill and care required for those parts of work, whether the skill demanded is strictly architectural skill or not.”
A related question is about the architect’s liability while using special products, relying on the claims of manufacturer. This issue was considered in Bloomsburg Mills v Sardonic Construction Co. A firm of Architects was engaged to design and supervise the construction of a weaving mill. The technology used in the mill required the building to be air?conditioned to maintain a temperature of 80^F and a humidity of 60%. The Architect had specified foam glass insulation under a built?up roof to prevent leakage and condensation. Because of the shortage of this material, the architects decided it use fibre glass insulation. They relied on the claim of the manufacturer of this material as to it’s adequacy. BUt while in use this proved inadequate and a new roof had to be constructed to proceed with the weaving process. The owner used the Architects for damages. It was held that the Architects were responsible for the damages as the requirement of proper insulation was made known to them and hence they should have satisfied themselves about the adequacy of the new material by proper investigations.
Another area of possible dispute between the owner and the Architect is the cost of the Project. Quite often the owners will require the Architect to design the building within a specified cost limit. If the cost of construction substantially exceeds this limit, the Architect may not be able to claims fees for his services. Hudson in his book on building contract says. “The Architect must possess the knowledge required for estimating the cost at current price of building or other works which he may design so that the cost of carrying out his design will come within a reasonable distance of the employer requirement in so far as these have been made known to him. “In Andry and Feital v Ewing, the Architects were required to prepare the plans and specifications for a building, the cost of which was not to exceed $ 12000. It was found that the cost of building designed by the Architect would exceed this limit by more than 50%. The court held that the Architects were not entitled to get payment for preparing the plan and specifications. However, as per the decision in Pierce v Board of education, the Architect can not be denied his fees if the increase in cost is due to special circumstances or due to change in plans as required by the owner, unforeseen conditions encountered during construction, etc. Shri. G.L. Gajria in his book “Law relating to Building and Engineering Contracts in India ” advises that “Architects should make it clear to the owner that when they give an estimate of cost, it is only by way of an approximate estimate and that it is no stipulation that the cost will not exceed the estimated cost.”
The Architect while preparing the plan and specifications have to comply with regulations of various statutory bodies such as Town Planning Board, the Urban Development Authority, Local bodies, Pollution Control BOard etc. Also the rights of adjoining owners have to be considered. A plan which does not meet these requirements is of no use to the owner as the work may be prohibited or if commenced may have to be demolished. In such cases the Architect may be held responsible for the damages. In Monks v Dilion it was ruled that “If the Architects plan involve a trespass he may be personally liable to an adjoining owner for the trespass so caused. “In view of similar judgements in other cases, the Architect should pay special attention to the various statutory requirements and he should have a reasonable working knowledge of laws relating to these matters. But he is not expected to have the level of knowledge as possessed by a legal advisor. In Jenkins v Betham the Judge ruled that ” An Architect can not be expected to supply minute and accurate knowledge of law; but we think under the circumstances they might properly be required to know the general rules applicable….”
There are instances when the Architect is tempted to acquire pecuniary interest in the work awarded to contractor under his supervision and also by assuming incompatible duties by representing adverse parties. In Audubon v Andrews the Architect had entered into an agreement with the Design Engineer of mechanic equipment for the preparation of specifications for the equipment. When the owner abandoned the project the Architect used the owner for damages for breach of contract. During the trial, the matter of agreement between the Architect and the Design Engineer came to light. While giving the judgements against the Architect, the Judge observed…” his first duty is that of good faith and loyalty to his principal, and hence he should have no pecuniary interest in the performance of the contract for the work assigned by him, nor can be act as the agent or representative of furnishers and contractor or receive from them any pay, remuneration or compensation except with the full knowledge of his principal. Any breach of duty or good faith in this respect destroys his right to compensation and commission, not only on the ground of actual damage or prejudice to the principal, but on the ground of public policy.”
The above principle, that an agent cannot assume incompatible duties or represent adverse parties applied regardless of good or bad faith as can be seen from the verdict in Hashbrouk v Rymkevitch. In this case a Community Centre had employed an Architect to prepare plan for a swimming pool and supervise the work as an Architect. The Centre appointed a contractor for the construction work. The Architect, finding that the contractor did not have the men of requisite experience, arranged with the contractor for directing the work himself for a fees. The pool was completed in time and to the entire satisfaction of the Centre. But the Architect has to use the contractor for his remuneration. The court gave a verdict against the Architect and said “It is fundamental that an agent cannot take unto himself incompatible duties or act in transaction where he represents a person having an adverse interest. Where he does act for adverse interests he must necessarily be unfaithful to one or the other as the duties which he owes to his respective principals are conflicting and incapable of faithful performance by the same person. No man can serve two masters…” The argument of the Architect that his sole interest was to complete the work properly and on time and that no fraud has been alleged was not accepted by the court.
Now we shall discuss the general principle governing the circumstances under which an Architect may be held responsible for the damages. It is now generally accepted that legally it would be difficult to proceed against an Architect with success unless great negligence or carelessness can be proved. In Badgley v Dickson the Judge observed that “The Architect is in the same position as any other professional or skilled person, and whether it be in the preparing of plans and specifications, or the doing of any other professional work for reward, is responsible if he omits to do it with ordinary and reasonable degree of care and skill. “The degree of care owed by a person qualified in a particular trade or profession has been variously expressed by different judges. The most widely accepted explanation is that given in Chapman v Walton. The judge observed that the test is “whether other persons exercising the same profession or calling and being men of experience and skill therein, would or would not have come to the same conclusion.” The judge further said “When no extra degree of skill is contracted for the fact that five out of ten skilled and experienced members of a particular profession would have done the same act or have come to the same conclusion…” is proof of exercise of reasonable skill. If the Architect has exercised reasonable skill as explained above he can not be held responsible for loss or damage suffered by the owner by some mistakes or omission by the Architect. In Lamphier v Phipos the judge said “Every person who enters a learned profession undertakes to bring to the exercise of it a responsible degree of care and skill; he does not undertake if he is an attorney, that at all events you shall gain the cause, nor does a surgeon undertake that he will perform a cure nor does the latter (in this case the Architect) undertake to use the highest possible degree of skill.”
Another interesting aspect is that when the Architect acts in his capacity as quasi?arbitrator in valuation, certifying, etc. He cannot be held responsible for damages even if there is negligence. Hudson in his book on Building Contract says “Where a person is placed in a position in which he is to exercise his judgements impartially, he is not liable for negligence in the exercise of that judgements.” This aspect was examined in Pappa v Rose and the judge said “It puts the Architect in the position of person trusted by both parties, and if a man with his eyes open chooses to enter into such a contract giving the Architect that power he cannot turn round and by a mere allegation of negligence say… I will not use you because you negligently took out those quantities.”
Thus is it is now settled that an Architect duly qualified and exercising reasonable care and skill in the discharge of his duties will not be held responsible for the damages except in the case of proven fraud.
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