to the detriment of the strength of the building, the law made him and his sub-contractors responsible for a fixed term for the solidity of the structure. Even at that time, however, there were certain architects, particularly those employed by the Government, who held aloof from contracting, and prided themselves on their strictly advisory, or, as we should say, professional character ; and this attitude of architects toward their clients came by degrees to be the recognized and usual one. Still, the language of the Code remained unchanged, and grew constantly less applicable to the changing relation of architects to their clients, until, in 1844, after a contest carried on for several years, the highest court in France defined the legal responsibility of architects of the modern sort to their clients for imperfections in the work under their charge.
A church was built at Saint Germain-en-Laye, from the plans and specifications, and under the superintendence of two architects, Malpiece and Moutier. 1 Curiously enough, a clause in the contract with the carpenter, which was drawn up by the architects, said that “ The architects and contractors will be responsible for ten years for the work executed in the construction of the said church, conformably to Article 1792 of the Code Civil,” this being perhaps at that time a common formula in such contracts. The specification called for rooftimbers of oak, cut two years, and well seasoned. Actually, the timbers, when put in, appear to have been green, and, after the roof was up, all the timbers were brushed over with tar.
ROTTING OP ROOF-TIMBERS.
Soon after this, some of the trusses failed, and pushed out the walls, and it was found that nine out of the twenty tie-beams were rotten. The church authorities brought suit against the carpenter and the architect jointly, to recover $2,800, the cost of repairing the damage caused by the failure of the roof. The inferior court held that the carpenter was solely responsible; and the church authorities appealed, claiming damages from the architect also, both under his alleged joint liability with the contractor, under Article 1792 of the Code, and on the general ground that “ The architect, moreover, ought to know the quality of the materials employed; in accepting the mission of directing the works, he assumes the responsibility of their good execution.” It will be observed that this is just the position so popular here at present, but it failed to secure the support of the Court of Cassation, which confirmed the decision of the court below. The evidence was conflicting as to whether the architect could have discovered the greenness or bad quality of the timber before it was put into the building ; and the clause in the contract above quoted might reasonably have been interpreted as a voluntary assumption of a responsibility which the statute might not throw upon him ; but the court said that “ The responsibility pronounced against architects by Article “ 1792 of the Code Civil does not apply except in cases where “ the edifices have been constructed by them for a fixed price. “ And especially, when the cause of the disorders of an edifice “ has been recognized as proceeding from hidden vice of mate“ rial, the architect who did not undertake to build it at a fixed “ price, but who limited himself to preparing the plans, writing “ the specifications, and directing the work, should not be held “ to the responsibility of Article 1792, when it is otherwise “ established that the plans are conformable to the rules of “ art, that the direction of the work has been conscientiously “ pursued, and that the verification of the materials has been “ well done. In such a case, the responsibility falls upon the “ contractor who has furnished materials infected with an internal “ vice.” As to the claim made by the appellants, that the decision of the lower inferior court violated Article 1792 of the Code, the Court of Cassation repeated, later, that “ Inasmuch as this “ article, which renders architects responsible during ten years “for the edifice which they have constructed (font construire), “ applies only to edifices constructed for a fixed price, it follows “ from this that when edifices have not been constructed by “architects for a fixed price the article is inapplicable.
“Inasmuch as, in fact, in the present instance the .Sieurs “ Malpiece and Moutier have not constructed for a fixed price, “ (d prix fait), the church of Saint Germain, but, on the con“ trary, it has been constructed by contractors, of whom the “judgment of the court below recognizes the responsibility, and “ whom it has condemned in consequence, it follows that the “ judgment, instead of violating Article 1792 of the Code Civil, “ makes, on the contrary, a just application of it.”
1 Ville de S. Germain-en-Laye, vs. Malpiece et Moutier. Cass. 12 nov. 1814. Dalloz, 1845,1 8.
In 1863, the Court of Cassation2 made a further modification of the law. In the case of the church of Saint Germain, it held that the architect, to free himself from responsibility for defects in his buildings, must establish “ that the plans are con“ formable to the rules of art, that the direction of the work “ has been conscientiously pursued, and that the verification of “ the materials has been well done.” In the latter case, the court decided that the burden of proof should not be upon the architect, but upon his accuser, saying, “ If an architect limits “himself to directing the execution of plans which he has pre“ pared, it is Article 2270 of the Code which is applicable, and “ the responsibility of the architect is not engaged except so far “ as fault is proved against him, according to Articles 1382 and “ 1383.”
The articles referred to read as follows:
Art. 1382. “Any act whatever, which causes damage to another, obliges him by whose fault the damage occurred to repair it.”
Art. 1383. “ Every one is responsible for the damage which he has caused, not only by his act, but also by his negligence or imprudence.”
Art. 2270 simply limits the responsibility of architect and contractor to ten years.
All the more recent French cases have been decided in accordance with these principles. Article 1792 of the Code is universally held not to apply to architects unless they are also contractors; and the responsibility of an architect under ordi nary circumstances is governed by the Articles 1382 and 1383, which apply equally to all other persons ; while, as by the more recent decisions in our courts, the negligence or incompetency for which it is desired to hold him responsible must be proved against him by proper evidence, and not left to presumption or inference.
SPECIAL FRENCH DISTINCTIONS.
The French courts, however, in applying these principles, make certain distinctions which are unknown here, but which seem to be valuable. It often happens that a building turns out to be badly built, or unsatisfactory in some other way, partly through the fault of the builder, and partly through that of the architect. If, as is often the case, there is no way of distinguishing accurately between the damage due to the architect’s fault, and that for which the builder should alone be responsible, the court takes it upon itself to apportion between them the damages to be paid to the owner.
A couple of cases, 3 out of many to be found in the reports, will serve to illustrate this point.
In 1873, a party-wall was underpinned by a contractor, under the direction of an architect. The wall was not shored, and the new work built underneath it was not of the proper thickness. The wall fell, injuring the adjoining house, and the owner of the injured building sued both the architect and contractor for damages. It was claimed, on behalf of the architect, that he could not be held responsible for work done by the contractor; but the court held that the architect might be held responsible for damage occurring through the act of the contractor, if proper supervision on his part would have prevented it. In this case, the court found that the damage was caused by bad workmanship on the part of the contractor, and deficient supervision on the part of the architect, and condemned them to pay the loss together; the contractor to contribute two-thirds, and the architect one-third, of the sum required.
“solidarity” op responsibility between architect
AND CONTRACTOR.
The court expressly said that the architect and contractor were not held responsible under Article 1792 of the Code, but under Articles 1382 and 1383; and that as the cause of the damage was a single circumstance, the result of the joint fault of the contractor and the architect, there was reason for pronouncing “solidarity” between them.
Dalloz, the editor of the Jurisprudence Generate, in commenting on this case, says, “The architect is not legally responsible ‘ solidairement ’ with the contractor for damaget resulting from the bad work of the contractor; but it is otherwise if a fault, such as defective supervision, is proved againss him. In this case, the principle applies that damage caused by the concurrence of several faults, not accompanied by intention to injure, ought, since the result is indivisible, to be
2 Cass. 15 juin, 1863.
3Costansin vs. Duperche et Chauvet, Req. 25 mars, 1874; Dalloz, 1874, 1, 285.
A church was built at Saint Germain-en-Laye, from the plans and specifications, and under the superintendence of two architects, Malpiece and Moutier. 1 Curiously enough, a clause in the contract with the carpenter, which was drawn up by the architects, said that “ The architects and contractors will be responsible for ten years for the work executed in the construction of the said church, conformably to Article 1792 of the Code Civil,” this being perhaps at that time a common formula in such contracts. The specification called for rooftimbers of oak, cut two years, and well seasoned. Actually, the timbers, when put in, appear to have been green, and, after the roof was up, all the timbers were brushed over with tar.
ROTTING OP ROOF-TIMBERS.
Soon after this, some of the trusses failed, and pushed out the walls, and it was found that nine out of the twenty tie-beams were rotten. The church authorities brought suit against the carpenter and the architect jointly, to recover $2,800, the cost of repairing the damage caused by the failure of the roof. The inferior court held that the carpenter was solely responsible; and the church authorities appealed, claiming damages from the architect also, both under his alleged joint liability with the contractor, under Article 1792 of the Code, and on the general ground that “ The architect, moreover, ought to know the quality of the materials employed; in accepting the mission of directing the works, he assumes the responsibility of their good execution.” It will be observed that this is just the position so popular here at present, but it failed to secure the support of the Court of Cassation, which confirmed the decision of the court below. The evidence was conflicting as to whether the architect could have discovered the greenness or bad quality of the timber before it was put into the building ; and the clause in the contract above quoted might reasonably have been interpreted as a voluntary assumption of a responsibility which the statute might not throw upon him ; but the court said that “ The responsibility pronounced against architects by Article “ 1792 of the Code Civil does not apply except in cases where “ the edifices have been constructed by them for a fixed price. “ And especially, when the cause of the disorders of an edifice “ has been recognized as proceeding from hidden vice of mate“ rial, the architect who did not undertake to build it at a fixed “ price, but who limited himself to preparing the plans, writing “ the specifications, and directing the work, should not be held “ to the responsibility of Article 1792, when it is otherwise “ established that the plans are conformable to the rules of “ art, that the direction of the work has been conscientiously “ pursued, and that the verification of the materials has been “ well done. In such a case, the responsibility falls upon the “ contractor who has furnished materials infected with an internal “ vice.” As to the claim made by the appellants, that the decision of the lower inferior court violated Article 1792 of the Code, the Court of Cassation repeated, later, that “ Inasmuch as this “ article, which renders architects responsible during ten years “for the edifice which they have constructed (font construire), “ applies only to edifices constructed for a fixed price, it follows “ from this that when edifices have not been constructed by “architects for a fixed price the article is inapplicable.
“Inasmuch as, in fact, in the present instance the .Sieurs “ Malpiece and Moutier have not constructed for a fixed price, “ (d prix fait), the church of Saint Germain, but, on the con“ trary, it has been constructed by contractors, of whom the “judgment of the court below recognizes the responsibility, and “ whom it has condemned in consequence, it follows that the “ judgment, instead of violating Article 1792 of the Code Civil, “ makes, on the contrary, a just application of it.”
1 Ville de S. Germain-en-Laye, vs. Malpiece et Moutier. Cass. 12 nov. 1814. Dalloz, 1845,1 8.
In 1863, the Court of Cassation2 made a further modification of the law. In the case of the church of Saint Germain, it held that the architect, to free himself from responsibility for defects in his buildings, must establish “ that the plans are con“ formable to the rules of art, that the direction of the work “ has been conscientiously pursued, and that the verification of “ the materials has been well done.” In the latter case, the court decided that the burden of proof should not be upon the architect, but upon his accuser, saying, “ If an architect limits “himself to directing the execution of plans which he has pre“ pared, it is Article 2270 of the Code which is applicable, and “ the responsibility of the architect is not engaged except so far “ as fault is proved against him, according to Articles 1382 and “ 1383.”
The articles referred to read as follows:
Art. 1382. “Any act whatever, which causes damage to another, obliges him by whose fault the damage occurred to repair it.”
Art. 1383. “ Every one is responsible for the damage which he has caused, not only by his act, but also by his negligence or imprudence.”
Art. 2270 simply limits the responsibility of architect and contractor to ten years.
All the more recent French cases have been decided in accordance with these principles. Article 1792 of the Code is universally held not to apply to architects unless they are also contractors; and the responsibility of an architect under ordi nary circumstances is governed by the Articles 1382 and 1383, which apply equally to all other persons ; while, as by the more recent decisions in our courts, the negligence or incompetency for which it is desired to hold him responsible must be proved against him by proper evidence, and not left to presumption or inference.
SPECIAL FRENCH DISTINCTIONS.
The French courts, however, in applying these principles, make certain distinctions which are unknown here, but which seem to be valuable. It often happens that a building turns out to be badly built, or unsatisfactory in some other way, partly through the fault of the builder, and partly through that of the architect. If, as is often the case, there is no way of distinguishing accurately between the damage due to the architect’s fault, and that for which the builder should alone be responsible, the court takes it upon itself to apportion between them the damages to be paid to the owner.
A couple of cases, 3 out of many to be found in the reports, will serve to illustrate this point.
In 1873, a party-wall was underpinned by a contractor, under the direction of an architect. The wall was not shored, and the new work built underneath it was not of the proper thickness. The wall fell, injuring the adjoining house, and the owner of the injured building sued both the architect and contractor for damages. It was claimed, on behalf of the architect, that he could not be held responsible for work done by the contractor; but the court held that the architect might be held responsible for damage occurring through the act of the contractor, if proper supervision on his part would have prevented it. In this case, the court found that the damage was caused by bad workmanship on the part of the contractor, and deficient supervision on the part of the architect, and condemned them to pay the loss together; the contractor to contribute two-thirds, and the architect one-third, of the sum required.
“solidarity” op responsibility between architect
AND CONTRACTOR.
The court expressly said that the architect and contractor were not held responsible under Article 1792 of the Code, but under Articles 1382 and 1383; and that as the cause of the damage was a single circumstance, the result of the joint fault of the contractor and the architect, there was reason for pronouncing “solidarity” between them.
Dalloz, the editor of the Jurisprudence Generate, in commenting on this case, says, “The architect is not legally responsible ‘ solidairement ’ with the contractor for damaget resulting from the bad work of the contractor; but it is otherwise if a fault, such as defective supervision, is proved againss him. In this case, the principle applies that damage caused by the concurrence of several faults, not accompanied by intention to injure, ought, since the result is indivisible, to be
2 Cass. 15 juin, 1863.
3Costansin vs. Duperche et Chauvet, Req. 25 mars, 1874; Dalloz, 1874, 1, 285.