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Alhajeri, M A (2004) Post-construction liabilities for latent defects in building and construction contracts: the theoretical foundations and the allocation of risk a comparative study in Kuwaiti, French and English law, Unpublished PhD Thesis, Department of Law, University of Essex.

  • Type: Thesis
  • Keywords: construction; Kuwait; comparative methodology; post-construction liability
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  • Abstract:
    Since the 1960s, the pace of urbanization in Kuwait has been continual and rapid. Construction and re-construction programs after the 1990-1991 War with Iraq have strictly adhered to rules for the regulation of construction contracts embodied in the Kuwaiti Civil Code No. 67/1980. In this Doctoral thesis it is argued that, contrary to common perception, the current state of law for the regulation of the post-construction phase in building and construction contracts in Kuwait is unsatisfactory and largely marked by ambiguity, fragmentation and legal lacunae. Further, it is argued that these weaknesses which are most evident in the spheres of post-construction liability and risk allocation have a significant impact on the quality of the built environment. The thesis employs a comparative methodology, which draws upon three conceptually divergent legal systems, being the Kuwaiti, French and English law. The purpose is to explore and evaluate solutions offered by these diverse systems in cases where legal problems arise from post- construction complications. A six-part taxonomy has been used to meet the objectives of the thesis. Part I investigates a number of preliminary matters, including the underlying principles of comparative research, a synthesis of civil law and common law, and an exposition of social and economic conditions in Kuwait which have a direct impact on the construction. In Part II the fundamental concepts of civil obligations are examined by reference to the primary sources of legislation and case law. Part III establishes the guiding principles of risk allocation theories, with particular emphasis on aspects of risk transmission and risk realization. Part IV then sets out the parameters of post-construction liabilities in all three jurisdictions, followed in Part V by an investigation of contractual and non-contractual remedies available for post-construction liability. The thesis concludes with Part VI which indicates the necessity for legal reform in Kuwait, drawing the attention of policy-makers to the need for legal measures which would ameliorate the quality of the built environment.