Divisibility of performance in contracts for construction works

Abstract

While the divisibility of performance by a contractor under a contract for construction works enables withdrawal from the contract with ex nunc effect, in situations in which performance is indivisible, withdrawal from a contract results in an ex tunc effect and applies to both the already built-up part of the site as well as to the part not yet delivered. Divisibility of performance is of significance because it constitutes grounds for withdrawal from a contract pursuant to the provisions of article 647 and article 654 of the Civil Code regarding the delivery and commissioning of construction works as well as the legal effects resulting from a fully or partially realised construction project. Finally, divisibility of performance is of importance when it comes to the measures used to assess the contractor’s due care and possible level of negligence, and related to it scope of compensation, or damages claimed.

Determining, or ‘grasping’, the nature of contractor’s performance in a given contract requires applying ‘triple classification’ which accounts for (i) the practically possible divisibility of a given scope of construction works performed; (ii) the permissible divisibility of the construction process itself, having account for the required technological or time sequence; and (iii) the nature and divisibility of the construction project itself. In consequence, divisibility of performance in a contract for construction works is limited by objective factors of technical or technological character, which reduce the parties’ to the contract freedom to agree upon the divisibility of contract performance.