MAINTENANCE AND DEFECT CLAUSES 175 



responsible for defective design. What, then, is meant by 

 design ? It is quite easy to imagine a machine constructed of 

 the best materials and of the best workmanship but yet faulty 

 in design. It appears that under this form of clause the 

 contractor is bound to see that the design is good and suitable 

 for the purpose in hand ; and in order to protect himself 

 against liability he should take expert opinion before he 

 enters on the job at all as to whether the design of the 

 machinery is suitable and proper. That, however, is a counsel 

 of perfection to which the contractor is not often willing to 

 listen. 



Contracts relating to the erection of machinery nearly 

 always contain some clause of this kind. 



The following form of maintenance clause is inserted in the 

 general conditions made use of by the Sheffield Corporation 

 Electricity Department : " The contractor binds himself to 

 uphold the whole of the plant, machinery, apparatus, mains, 

 or works supplied or carried out by him, fair wear and tear 

 excepted, and to be responsible for and to make good all 

 defects in the same due to defective material, design, or work- 

 manship, for and during the period of maintenance ; but he 

 shall have the right of entry by himself or his representatives, 

 at all reasonable working hours, into the electricity works of 

 the corporation for the purpose of inspecting the working of 

 the plant and the records of it, he or they taking notes there- 

 from, and, if necessary, making any tests at reasonable times 

 at his own risk and expense." Here, again, the contractor is 

 made liable for faulty design ; yet another clause in the same 

 series of general conditions provides that the corporation 

 engineer may, subject to certain restrictions, make any 

 alteration upon the design of the works during their progress. 

 It may be assumed, of course, that an engineer would not 

 willingly place upon the contractor the onus of remedying a 

 faulty design for which he was himself responsible. At the 

 same time the contractor who assents to the insertion of such 

 a clause may find himself in an awkward position. (For 

 another maintenance clause, see Form I., Cl. 21.) 



3. Example of the effect of a maintenance clause. In London 

 Shipping Co. v. John Duff us (1841, 3 Kettie (2nd Ser.)), a con- 

 tractor had agreed to furnish a steam-vessel and uphold the 

 machinery for six months after the vessel commenced plying. 



