MAINTENANCE AND DEFECT CLAUSES 181 



tenant in occupation under a repairing lease. So a lessee of 

 a house, who covenants generally to repair it, must rebuild it 

 " though it be consumed by fire, burned by lightning, or 

 thrown down by enemies." (Bullock v. Dommitt, 1796, 6 T. R. 

 650.) Having regard to this state of the law, it is often 

 provided that the contractor shall insure against fire ; and even 

 where he is under no obligation to insure the prudent con- 

 tractor will do so. In this connection it may be useful to notice 

 that a covenant to insure does not limit the liability of the 

 contractor to the amount for which he is insured. (See Digby v. 

 Atkinson, 1815, 4 Camp. 275.) He must complete his contract 

 at whatever cost to himself. 



The application of this principle of the law of landlord and 

 tenant to a contractor may be illustrated by an old case of 

 Brecknock and Abergavenny Canal Co. v. Pritchard, 1796, 6 

 T. E. 750. There a contractor had agreed to build a bridge 

 in a substantial manner and keep it in repair for a certain 

 time. It was held that he was bound to rebuild it although 

 it was broken down by an extraordinary flood. Lord Kenyon 

 said : " This sort of loss must have been in the contemplation 

 of all the parties in this case ; the bridge was to be built in 

 such a manner as to resist any body of water. If the defen- 

 dants had chosen to except any loss of any kind, it should have 

 been introduced into the contract by way of exception." 



12. Contractor entitled to notice of want of repair. It has 

 long been a recognised principle that where a landlord is bound 

 to repair and keep in repair he cannot be sued for breach of 

 covenant unless notice of want of repair has been served upon 

 him. (See Makin v. Watkinson, 1870, L. E. 6 Ex. 25.) It is 

 conceived that the same principle applies to the case of a 

 contractor who is bound to keep machinery, etc., in repair 

 after it has been completed. 



Where, however, the contractor definitely announces that 

 he will not be in a position to repair at all, no notice need be 

 given. In Johnstone v. Milling, 1885, 2 T. L. E. 105, the 

 defendant leased certain premises to the plaintiff for a term 

 and covenanted to rebuild them on receiving notice from the 

 plaintiff requiring him to do so. Six months before the end 

 of the term the defendant announced that he would be unable 

 to rebuild, the announcement being made before any notice. 

 In consequence of this the plaintiff did not give any notice. 



