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Construction Law



Page 1257

What is a defect?

14.01 There is no precise definition, in law, of what constitutes a defect.1 Defects may relate to design, construction, or both. The word “defect” may refer to the quality of goods supplied.2 A defect may be patent, in the sense of being known or detectable upon reasonable observation, or latent, in which case its existence is unknown and it is not reasonably discoverable. In everyday parlance a “defect” is something that is faulty, or not built correctly. This is also true in so far as the law is concerned with building defects. But the legal connotation of the word “defect” is probably a little broader than that. It is broader if, as is suggested, we use the word “defect” to denote an element in the design and/or construction of a structure (or other asset), or other delivery of goods or services, which in qualitative terms falls short of what should have been supplied.3 The emphasis in this description is upon there being a discrepancy or shortcoming - whether major or minor - in supply, in the sense of there having been a breach of obligation by the supplier of goods and/or services, rather than a lack of functional utility (if there be any at all) in what was supplied.4 Hence, goods may be regarded as defective where they were not supplied in accordance with a contractual specification,5 even if those goods are capable of being used adequately for ordinary purposes.6

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