One year, two years, ten years: three statutory warranties, not one

The module on ten-year liability describes a regime and the one on pre-financing describes its funding. Neither says that there are in fact three statutory warranties, of different durations, bearing on different objects, all triggered on the same date. That architecture is the most specifically French feature of the programme, and it is also the one foreign parties miss most often, because they look for a single warranty where the law has laid down three.

The first lasts one year and covers everything: it is the making-good obligation, requiring the contractor to repair defects reserved at acceptance and those reported during the following year, whatever their severity. It requires no demonstration of severity, which makes it the simplest to enforce, and it is purely contractual: it is the contractor who owes, not an insurer. The module on reservations showed what it covers in practice, and the precision that matters is this: the making good itself is never a loss, only damage caused while doing it can be one.

The second lasts two years and covers separable equipment items, that is, those that can be removed or replaced without touching the works: a boiler, a roller shutter, an applied finish. It is a proper-functioning warranty, meaning it operates as soon as the item does not work properly, without any need to show harm to the works. Its brevity is the point to retain: two years pass quickly on an industrial complex whose reservations drag on, and equipment failing in the third year leaves that regime to enter, or not, the next one.

The third lasts ten years and is the one everybody names. It does not operate on any defect whatever: the defect must compromise the soundness of the works, or render them unfit for their purpose. The second test is wider than the first and is often decisive: a building standing perfectly firm but whose noise nuisance prevents the intended use may be unfit for its purpose, while its soundness is in no way in question. It is through that test that apparently minor defects enter a ten-year regime, and that is where classification is decided, as the module on defects showed in another register.

The articulation between the second and third warranties produces the most frequent difficulty, and it concerns equipment. A separable item comes under the two years; but if its failure renders the works unfit for their purpose, case law may move it into the ten-year regime, and an inseparable item, incorporated into the works to the point that it cannot be removed without damaging them, is there from the outset. The boundary is technical and eight years are at stake. On an industrial complex, whether a process item is separable has no obvious answer, and two experts can judge it differently.

What makes this regime unusual worldwide is not its duration but its mandatory character. The parties cannot contract out of it: a clause reducing the ten-year warranty, capping its amount or altering its starting point is deemed unwritten, whatever the sophistication of the parties and whatever their agreement. The module on contractual transfer described caps negotiated between lawyers; here negotiation is beside the point, and a foreign project owner used to contracting everything discovers that it can neither waive nor obtain a waiver.

That leaves the presumption, which is the mechanism most favorable to the project owner in the whole of construction law and which must be known to be invoked. Once a defect is classified as ten-year, the builder's liability is presumed: the project owner does not have to show fault, it need only establish the defect and its severity. It is for the builder to exonerate itself, and it can do so only through an external cause, which is narrow. All the file's energy therefore concentrates on classification rather than on fault, which is the reverse of an ordinary liability dispute, and which explains why expert reports address first the severity of the defect and not its author.