I have a bit of a legal question regarding contracts and builders?

Question

I had a contract with builders(the first company) and in it was an oral contract to add a shower in my house. They hired another set of builders (the second company) to add the shower. However, after fitting it one of the builders from the previous builders left tap running and the whole place flooded. Now, it has come to light that this builder was actually working for the second company on that day. I had no contract or dealing with the second company. So who do i sue (who is liabile)?? The first company i had the contract with or this second company. Obviously I wouldn't be able to sue the second company under contract if they were liable, as there was no contract made between myself and them. Any help would be great thanks!

Answer 1

You sue the first builder, but since you had no written contract you are going to have a harder time with your suit. It helps to have all prices and terms in writing when you go into court so there is no "he said she said" scenario about whether it was OK for your person to subcontract and if so who carries the liability

Answer 2

The Supply of Goods and Services Act 1982 requires that the installation of the shower, as with any service, must be carried out with reasonable care and skill so if negligence by the (second) builder caused the damage the original builder is liable.

Like any claimant, you must prove the defect in the part or negligence in the installation and that this caused the damage. Leaving the tap on might come under the instalation heading beceasue it was caused as a result of testing the shower. However you need only show that this was more probable than not. "Certainty" or proof beyond reasonable doubt is a standard required in the criminal law but not for civil claims. If you can show that the bathroom was not flooded before the installation this should raise a presumption that installation was probably to blame, even if the precise cause cannot be proved. They would then have the burden of rebutting this. You must of course prove your loss by showing the cost of any expenses incurred to put t right.

The first builder is liable and should have liability insurance so you may well end up negotiating with their insurance company. Ultimately a small claim can be presented to the County Court.

There is another route to obtaining a solution. If you paid for the shower by credit card and it cost more than £100 you can take this up with the credit card company who are jointly liable under section 75 of the Consumer Credit Act 1974 for the claims you have against the builder. Assuming the builder is liable therefore you should be able to claim your loss back from the credit card company, leaving them to recover from the builder directly. It might also be helpful to enquire whether the builder is part of a trade associatin which might have an alternative disputes procedure.

Good luck.

Answer 3

See a "construction defects" lawyer. They handle these things all the time. Of course, breach of contract isn't the only thing you can sue for -- there's negligence, product defect, failure to follow building codes, etc. etc. Usually what happens is that the homeowner just sues the "general" or the first builder, and then the builder "impleads" all of those who might otherwise be liable as "third-party defendants". But the law in your state may vary, and you may have an obligation to add the second company as a defendant for some or all of the legal claims you may have.

This is definitely a case where you should seek counsel.

Answer 4

Hi Sophia,

Well you have had the Californian version, so I will give you the UK version.

First of all we need to establish if a contract exists.

From what I can see it seems all the boxes can be ticked.

You do not need to have a contract in writing for a contract to exist, you simply have to show the circumstances existed.

They are:
Offer.
Acceptance
Consideration
Intention to create legal relations
Certainty of subject matter

I won't go into the technicalities of this list but basically it means that you wanted work done they did it for you and you paid them.

The second company is probably protected under the rules of what we call privity of contract but there are exceptions established by case law. They might yet be liable.

In saying that, I think you may have more success sueing in tort using vicarious liability. This was negligence on the part of an employee in that the taps were left running causing damage to your property. You have to establish who employed him.

You need to talk to a solicitor and contrary to what our American colleague suggests there is no need for a knowledge of the construction industry. Just contract law and tort.

Hope this helps

Good luck

Answer 5

You sue the first company who you had a contract with. They are in breach of contract. If they sub-contracted work out to another firm, they are responsible for it. Once you sue the first company, they can then sue the second company to claim some of the money back. Get a solicitor onto it. (you can also claim compensation for the damage and possibly inconvenience caused). Don't back down from these people or you'll be the only one losing out

Answer 6

Never ceases to amaze me when people give answers about issues they know nothing about.

I am a California lawyer who has plenty of experience in this kind of thing. You would sue them both. Why? Because they will each spend the majority of the time fighting each other over who owes you money. The more they fight, the less you have to do.

Bottom line is that you don't particularly who compensates you. If one contractor had a subcontract with another contractor THAT'S HIS/HER PROBLEM.

Now, I would highly suggest you speak with a lawyer ASAP. In construction, there are various things you can do to be compensated. Some states allow you to take a lien against the contractor's bond, etc.

Oh, and as to your contracts question -- technically, you are an intended third party beneficiary of the contract between your contractor and his/her sub. So, yes, you could sue under contract law.

Answer 7

sue the first builder

Answer 8

YOU CAN ONLY SUE--WHO YOU HAD A CONTRACT WITH...THATS THE REASON YOU HAVE A GENERAL CONTRACTOR...A PERSON WHO ASSUMES LIABILITY AND HENCE RESPONSIBLITY. NO MORE PAY FOR THEM TILL THIS IS RESOLVED--YOU HAVE A BANKER/LENDER WHO SHOULD BE INVOLVED IN THIS WITH YOU ON THE FUNDING...