When the time comes, in a claim for building defects or construction defects where we are short of time, if we send a burofax (formal registered letter) to the building contractor, for example, and interrupt the limitation period, does that interruption of the period also count for the others? –the architect, technical architect, works director, developer–.
Case law does not take a single approach on whether the interruption benefits the rest of the parties involved in the construction, or, what amounts to the same thing, whether the joint and several liability between them (developer, contractor, architect, quantity surveyor) is proper or improper.
In other words, whether a claim made against one jointly and severally liable debtor interrupted the limitation period with respect to all of them, without the need for a specific formal demand to each jointly and severally liable debtor.
This issue was the subject of deliberation and gave rise to disagreements among the Supreme Court judges themselves. To sum up, one line of reasoning holds that, in cases of non-contractual liability, only the limitation period individually applicable to each of the defendants applies, which ultimately means that the interruption of the limitation period based on out-of-court claims only affects the persons expressly claimed against.
On the other hand, the joint and several liability of the various individuals involved in the construction is only justified where the share corresponding to each of them cannot be individualised. Or, put another way, the liability of those taking part in the construction for defects causing ruin is, in principle and as a general rule, individualised, personal and specific to each, in keeping with each party’s own fault in performing the specific role it plays in the construction process, and joint and several liability arises neither from the law nor from the contract, but from the judgment with proper joint and several liability being provided for only in the case of the developer, insofar as, in all cases, the developer is jointly and severally liable with the other parties involved, vis-à-vis purchasers, for material damage to the building caused by construction defects (article 17.3 of the LOE); and, among themselves, for joint designers (article 17.5) or joint works management (article 17.7).
Put more simply, if a formal demand is made to one architect, it benefits the other architects, if it is made to one member of the works management, it benefits the other members of the works management, but if a formal demand is made to, say, the building contractor, we cannot extend that interruption of the limitation period to the architect or the quantity surveyor.
Any questions?