A critical analysis of the architect's professional liability

Abstract

In order to conduct a comprehensive analysis into the architect's professional liability, a range of legal areas must necessarily be considered in order to identify the possible sources that can give rise to such liability. An understanding into the fields of contract law, tort law and criminal law proves to shed ample light onto these possible sources. Before one can consider contract law and the manner in which it regulates the relationship between the architect and his client, a basic issue must be first recognised and dealt with; the valid existence of a contractual relationship. The first chapter of this thesis thereby seeks to examine the four essential requirements of contract under Maltese law and identify the way in which they can be applied to the context of the architect and his client. This process of examination and identification highlights certain complexities present during the formation of a contractual relationship and which are particular to the profession of architecture. Having established the existence of a valid contractual relationship, the second chapter moves onto a determination of the type of contract that is to regulate such relationship. The various classifications adopted by our Courts in this respect are considered and the reader is presented with an analytical application of the appropriate type of contract that is to regulate the specific type of work being undertaken. The second part of this chapter then undertakes to highlight the main obligations that the architect assumes in terms of contract. The third chapter of this thesis tackles the remedies that are made available to the client in terms of contract should the architect fail to perform any of his contractual obligations. The remedies identified are specific to the type of contract regulating the relationship between the architect and his client. The second part of the third chapter exposes the reader to the possibility that civil responsibility can extend to the building contractor. The relationship between v the architect and the building contractor is thus delved into along with the instances when responsibility is to be attributed exclusively to the builder. The sources of the architect's obligations are not limited solely to the realm of contract law. The fourth chapter therefore enters into a detailed study of the legal duties of the architect as traced from an extensive study of local judicial pronouncements. The role of the architect as fiduciary is also considered as a possible basis for further obligations towards the client. Failure on behalf of the architect to fulfill any such legal duties results into tortuous responsibility. Therefore, principles of tort law and an in depth explanation of the liquidation of damages follow in the fifth chapter. Having thus far examined the possible routes for civil responsibility, the sixth and final chapter endeavours to explore the possibilities for criminal liability. The reader is exposed to certain basic principles of criminal law and the ensuing liability before entering into an examination of the type of conduct that is sanctioned by criminal law. For academic purposes, the architect's conduct has been categorised into the three possible realms giving rise to criminal liability; wilfull, reckless or negligent conduct. To conclude, this study proposes the introduction of a typical contract to define and regulate the relationship between the architect and his client, identifying the main obligations and consequences pertinent to both parties. Further recommendations for clarifying and better defining the level of professional diligence expected of the architect are also proposed.