It is common to be in the process of talking to a builder about entering into a contract or being in a contract when an issue arises out of the products specified in the drawings and specifications leading to a substitution of a product, brand, system or component (“Product”).
A contract to supply and install materials is both a contract for the sale of goods (that is the materials) and a contract to install them.
The issue we will be talking about is the sale of goods aspect. It is a complex area of law involving sale of goods legislation, the Australian Consumer Law and the common law.
However, there is one very simple fundamental that applies in all circumstances. That point is that……
It is a fundamental point of contract law that if the contract specifies a particular type of product, system, componentry or brand of product then that is the product, system, componentry or brand that must be provided.
Nothing more or less will be acceptable. Words such as virtually identical
, pretty much the same
and can’t see any difference
will not save you. Even if you are ultimately found not liable you will have spent a fortune in legal costs, invested huge amounts of time and suffered incredible amounts of stress.
While there are complex laws applying to what you can recover if you do not comply with the contract you can accept without any shadow of a doubt that it will be less than the contract sum, in many cases it can be zero. No matter how you deal with it the cost of the legal argument will be financially crippling.
Sometimes it can be a case of the improper materials being removed and replaced at your cost. There are often additional consequential damages arising out of that process such as loss of income from a building that cannot be occupied for which you may also be liable.
There are also some circumstances where substitution can lead to criminal prosecution. An example where criminal liability is likely to arise is where there has been fraudulent substitution, death, injury or more recently, the building catches fire and goes up like a bonfire. Anything associated with the flammability or fire rating of a product is highly likely to lead to a severe outcome.
While appearing to be fairly innocuous, it is common for components of suspended ceiling grids to be substituted or mixed indiscriminately. The reality is that the fundamental rule above applies. In addition, if there is any failure of the system and there are “foreign” parts in the system the cost of the legal dispute will cripple you.
Do not underestimate the legal significance of a bolt, screw, rivet, clip or adhesive.
However, if there is a failure and you have provided and installed the parts as specified then your chances of incurring massive legal costs and consequences are reduced.
The overall position is that you want the protection of having supplied and installed according to a design specified by those that are paid truck loads of money to design buildings and systems and also have massive insurance policies if they get it wrong.
You are not being paid truck loads of money to assume the legal liability for the design (or any substation in the design) so do not do it …..EVER.
We often see substitution occurring because a trade contractor can obtain products that are supposedly “similar” to those specified cheaper than those specified or feels that another product will result in an easier or more timely installation process.
The temptation there is to contact the builder and recommend the alternative and then feel quite safe when the builder “signs off on it”. That is a dangerous and false sense of security.
Once again, you as plasterer have assumed the liability of the highly paid engineer or designer when you are not getting paid the truck loads of money to perform that role. The reality is that if a problem occurs you more than likely will be sued for negligent advice.
Therefore the obvious advice is do not do it……EVER.
What you should do is bring the alternative to their attention and suggest that they may wish to make enquiries or seek advice as to its suitability. You should not be the one saying it is suitable.
If you encounter a situation where it is obvious that an improper product, system or methodology has been specified such that its use is likely to cause injury, death, property damage or breach of the criminal law then you should bring this to the attention of the contractor in writing and let them deal with the designers.
In the meantime, you should serve appropriate notices of delay, delay prompting Requests for Information and possibly safety based notices of delay to protect your interests under the contract and avoid unmeritorious acceleration or liquidated damages.