<p>Although much has been written about it, decennial liability continues to  surprise and confound architects, engineers and contractors from other parts of  the world who are coming to the Middle East to do business.&nbsp;Often they simply do  not realize that in the Middle East, their customary risk management tools are  not sufficient and they are in fact exposed to potentially catastrophic  liability.<br /><br /><em>Decennial Liability is not covered by most Professional  Liability Insurance Policies and cannot be Limited or Waived by  Contract.</em><br /><br />Architects and engineers are accustomed to the risk of  being held liable for professional negligence and all carry professional  liability insurance for that eventuality.&nbsp; What many don&rsquo;t realize however, is  that professional liability policies written in the U.S., Australia and Europe  are generally triggered by negligence and would not respond in a case of strict  liability, where no negligence is required.&nbsp;ontractors are also accustomed to  being held responsible for their negligence or breach of contract, but rather  than professional liability insurance, which does not cover workmanship and is  not available to contractors, contractors tend to rely on limited warranties and  other contractual limitations of liability to protect themselves.&nbsp;&nbsp;  Unfortunately, decennial liability is a mandatory provision of the civil code in  most Middle Eastern countries and cannot be limited or waived by agreement of  the parties.<br /><br /><strong>The Potential Liability is  Enormous.</strong><br /><br />The civil codes in most Middle Eastern countries were  derived from the French and Egyptian civil codes and so are remarkably similar  in many respects.&nbsp; Set forth below is a table comparing the decennial liability  provisions in the civil codes of Iraq, Jordan, Kuwait, Qatar and the UAE.&nbsp;  Although there are some subtle differences, they are very similar.&nbsp; All impose  strict liability on architect/engineers and contractors for the partial or total  collapse of a building they designed or constructed, as the case may be, and for  any defect which threatens the stability or safety of such buildings.&nbsp; Other  common features are as follows:</p>
<ul>
<li>the liability period commences at handover and is for a period of ten (10)  years, or the intended life of the building, if less.</li>
<li>liability attaches notwithstanding that the collapse or defect resulted from  a defect in the land or that the building owner approved the defective  building.</li>
<li>liability is joint and several, meaning that the building owner can proceed  against either party for the full amount of the claim.</li>
<li>any contractual provision purporting to waive or limit decennial liability  is void.</li>
<li>all have a claim limitation period of either three (3) years or one (1)  year.</li>
</ul>
<p><br /><strong>Insurance Products are Available.<br /></strong><br />Architects and  Engineers who intend to be doing business in the Middle East for the long term  would be wise to consider obtaining their professional liability policies in the  U.K., which has a &ldquo;legal or civil liability&rdquo; trigger as opposed to a  &ldquo;negligence&rdquo; trigger.&nbsp; These policies will provide protection against the  imposition of decennial liability, so long as they are kept in force for ten  (10) years after completion of the work, which is the duration of the liability  period.&nbsp;&nbsp;<br />&nbsp; <br />Another possible alternative with respect to design  professionals is Owner&rsquo;s Protective Professional Indemnity Insurance (&ldquo;OPPI&rdquo;),  which protects the owner in the event that the underlying professional liability  policy is deficient in coverage.&nbsp; Of course, the policy wording would have to be  carefully reviewed to ensure that the policy would respond in the event of  strict liability that is not covered by the underlying design professional&rsquo;s  policy. <br /><br />Unfortunately, contractors face a more difficult situation.&nbsp;&nbsp;  The French market offers decennial insurance on a project specific basis, but it  is very expensive and very invasive.&nbsp; The insurer provides a certificate of  intent to issue the policy when the project is completed and becomes heavily  involved in process, monitoring the design and construction.&nbsp;&nbsp; The combination  of prohibitive cost and interference with the work means this is not a practical  alternative for most contractors, who instead find themselves having to rely on  their balance sheets.<br /><br />Thanks to Michael Earp, Executive Director and Sr.  VP, Aon Risk Solutions in London, and Kamal Hafez, Associate Lawyer,&nbsp; Al Tamimi&nbsp;  - Qatar, for their assistance with this article.</p>
<table class="tablestyle" border="1">
<tbody>
<tr valign="top">
<td><strong>Country</strong></td>
<td><strong>Civil Code Provisions</strong></td>
<td><strong>Who is Liable?</strong></td>
<td><strong>Scope of Liability</strong></td>
<td><strong>Liability Period </strong></td>
<td><strong>Claim Limitation Period</strong></td>
<td><strong>Comments</strong></td>
</tr>
<tr valign="top">
<td>Iraq</td>
<td>Articles 870 &ndash; 872 of the Civil Code No. 40 of 1951</td>
<td>Architect /<br />Engineer and Contractor</td>
<td>Total or partial collapse and any defect which may threaten the strength and  safety of a building or fixed installation</td>
<td>Ten (10) years</td>
<td>One (1) year from collapse or discovery of defect</td>
<td>No liability if defects are found to have resulted from causes which could  not have been foreseen at the time of construction</td>
</tr>
<tr valign="top">
<td>Jordan</td>
<td>Articles 788 &ndash; 791 of the Civil Code No. 43 of 1976</td>
<td>Architect /<br />Engineer and Contractor</td>
<td>Total or partial structural collapse and any defect which imperils the  strength or safety of a building</td>
<td>Ten (10) years</td>
<td>One (1) year from collapse or discovery of defect</td>
<td>Appears to be limited to buildings only, not other installations</td>
</tr>
<tr valign="top">
<td>Kuwait</td>
<td>Article 692 of the Civil Code no. 67/1980</td>
<td>Architect /<br />Engineer and Contractor</td>
<td>Total or partial destruction or damage and any defect that threatens the  strength and safety of a building or fixed construction</td>
<td>Ten (10) years</td>
<td>Three (3) years from collapse or discovery of defect</td>
<td><br /></td>
</tr>
<tr valign="top">
<td>Qatar</td>
<td>Article 711 of the Civil Code, Law No. 22 of 2004</td>
<td>Architect /<br />Engineer and Contractor</td>
<td>Total or partial collapse or fault and any defect which threatens the  sturdiness and safety of a building or fixed construction</td>
<td>Ten (10) years</td>
<td>Three (3) years from collapse or discovery of defect</td>
<td><br /></td>
</tr>
<tr valign="top">
<td>UAE</td>
<td>Articles 880-883 of the Civil Transactions Law No. 5 of 1985</td>
<td>Architect /<br />Engineer and Contractor</td>
<td>Total or partial collapse and any defect which threatens the stability or  safety of a building or other fixed installation</td>
<td>Ten (10) years</td>
<td>Three (3) years from collapse or discovery of defect</td>
<td>Contractor is strictly liable for all defects, including joint and several  liability for design defects</td>
</tr>
</tbody>
</table>