Notice of defects
With a notice of defects the client or site management formally objects to defective work. It is more than a technical finding: it calls for rectification and at the same time secures the warranty rights. If it is omitted or comes too late, claims can be lost.
A defect is defined by the contract, not by technique
Works are defective when they depart from the contract. What counts is not whether execution looks unrefined, but whether it matches what was agreed – under the works contract, the drawings, the specification, the recognised rules of construction and any expressly assured properties. An objective departure from these may constitute a defect, whether aesthetic, functional or safety-related.
From this definition follows the practical difficulty: whether an objection holds is decided by the contract – not by the impression the workmanship makes on site. Anyone raising one therefore has to know what was owed, not only what is customary.
Three phases with different evidential positions
When the objection is raised determines the legal position. Three phases are usually distinguished:
- During execution: this is not yet about warranty but about performance in accordance with the contract. The component is still accessible, and the evidential position correspondingly favourable.
- Within the notification period after acceptance: apparent defects must be raised at acceptance. In this phase the burden of proof usually rests with the contractor.
- After the notification period has expired: apparent defects not raised are in principle deemed approved. Claims then remain only for latent defects – and the client must show that the defect was already present at acceptance and not objectively recognisable.
The evidential position therefore worsens with every phase. What during execution is a finding on an open component becomes, after the notification period, the reconstruction of a condition nobody can see any more.
Distinction from a notice of delay
A notice of defects and a notice of delay are two different instruments with different consequences: one concerns the quality of the work, the other its timeliness. In practice they are occasionally mixed in a single letter – which weakens both, because it becomes unclear what is actually being objected to. They belong in separate treatment, even where one incident triggers both.
Relation to scheduling
In scheduling terms the timing matters most: a departure spotted and raised early can be corrected while the trade is still accessible and following work has not covered it. Raised later, rectification depends on work that has since been completed – a correction turns into an intervention in existing works, with corresponding consequences for the sequence.
Dated documentation is therefore useful in both directions: it records when a departure was identified and, in the schedule, which tasks had already been carried out at that point. Legal assessment of the individual case belongs with specialist advice.