Documente Academic
Documente Profesional
Documente Cultură
20 November 2018 1
THE TOPICS OF THE DAY
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THE USE OF FIT FOR PURPOSE IN DENMARK
- Nicolas Dennys et al.: Hudson’s Building and Engineering Contracts, 12. edition (2010):
- “… a ´fitness for purpose´ obligation is, once the purpose is communicated to the contractor
and there is reliance on his design, absolute.”
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THE USE OF FIT FOR PURPOSE IN DENMARK
- Personal experience:
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THE USE OF FIT FOR PURPOSE IN DENMARK
- Not any rulings yet involving the interpretation of ”Fit for purpose” under Danish law
Literature
- No further guidance on how strict; e.g. if a “state of the art” defense is valid
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THE USE OF FIT FOR PURPOSE IN DENMARK
- Niels Jørgen Oggesen: T:BB 2014:441 “Fit for purpose” – a part of Danish law?
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THE USE OF FIT FOR PURPOSE IN DENMARK
- The contractor was liable because he had not warned the employer of the risks involved
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THE USE OF FIT FOR PURPOSE IN DENMARK
international term
- Too much emphasis on the default law at the expense of the parties’ agreement and
- Not likely
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THE USE OF FIT FOR PURPOSE IN DENMARK
+ Professional parties → assume they are aware of the UK understanding of the term
+ Lex mercatoria
÷ A very onerous term → should be very clear that this has been the intention of the
parties
÷ Danish law clause and therefore not “just” use of the UK understanding
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THE USE OF FIT FOR PURPOSE IN DENMARK
The Siri Case re. the English term “Sue and Labour”
- Facts of the case
- In 2009, video inspections revealed cracks on the Siri platform’s sponson. Therefore, it was
believed there was a considerable risk of the platform collapsing
- Measures where taken to reduce the risk of collapse and to restore the platform
- The owner:
- claimed that costs to protect “the property and/or the interest insured or any part thereof” was covered
under the provision “Sue and Labour” in the insurance policy and that the term should be interpreted
in light of the Danish insurance contracts act
- The insurers:
- claimed that the provision was to be interpreted in line with the UK understanding of the term
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THE USE OF FIT FOR PURPOSE IN DENMARK
The Siri Case re. the English term “Sue and Labour”
- Decision of 4 May 2018 from the Eastern High Court
- The term must be interpreted in the light of English law
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THE USE OF FIT FOR PURPOSE IN DENMARK
The Siri Case re. the English term “Sue and Labour”
- The “SIRI-test” on “fit for purpose”
√ Special term not known under DK law, but well known under UK law
√ More precisely defined in English case law prior to the parties' agreement
√ FIDIC-based contract
÷ Tailor-made contract
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THE USE OF FIT FOR PURPOSE IN DENMARK
Guarantee
- Aggravated liability, but leaves room for interpretation
- “State of the art” defense accepted in previous case law when interpreting the
content of a guarantee (KFE 1983.299 VBA and KFE 1983.318 VBA)
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THE USE OF FIT FOR PURPOSE IN DENMARK
Conclusion
- “Fit for purpose” will probably be interpreted as an aggravated liability
- If the contract is based on a standard form including “fit for purpose” (e.g. FIDIC) and
the parties have not defined how “fit for purpose” should be understood → SIRI case
indicates that the UK understanding should prevail
- The very onerous implications of the UK understanding of “fit for purpose” might
point in the direction that it should be specifically mentioned
- Would the MTH case have had a different outcome under Danish law?
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