182 THE LAW AFFECTING ENGINEERS 



It was held that in spite of the lack of notice the plaintiff was 

 entitled to damages for the breach of covenant. 



13. Form of repairing clause. The following is a particu- 

 larly stringent form of repairing clause : 



The contractor shall also in addition to the covenant on his part here- 

 inafter contained, and notwithstanding the use or occupation of the 

 works and premises by the employer, and the execution by the employer 

 or his agents and workmen of the works in clause .... mentioned, and 

 notwithstanding any act, matter, or thing done, permitted, happening, or 

 suffered in pursuance of, or during the continuance of, such use or occu- 

 pation, or at any period during the execution of the contract, to the 

 satisfaction of the engineer maintain in good, sound, perfect, and water- 

 tight condition and in working order, replace and make good and repair 

 the work during the period of .... months from the date of the 

 engineer's certificate of satisfaction (which period is hereinafter referred 

 to as the period of maintenance) and shall rectify any defects or imper- 

 fections, or improper or insufficient workmanship, or materials which 

 shall or may appear, arise, take place or become manifest to the employer 

 or the engineer and which the engineer shall certify in writing not to 

 have been discovered by him prior to his certificate of satisfaction before 

 the commencement of the period of maintenance. 



14. When there is no defects or maintenance clause. Where 

 a contract for works makes no special provision to the effect 

 that the contractor shall remedy defects, questions may arise 

 as to whether and how far he is liable to make good defects. 

 The time at which the defects become apparent has a material 

 bearing upon the question of liability. Thus a breakdown 

 ten years after completion may be due to ordinary wear and 

 tear ; while if the same mishap were to occur within a month 

 of the contractor handing over the work as complete it would 

 require strong evidence to show that he was not at fault. It 

 is impossible to lay down a general rule by which the liability 

 of the contractor can be ascertained. The time ; the nature of 

 the defect ; the kind of use to which the work has been put 

 all these are matters which the Court would have to consider 

 in arriving at a decision. 



The following points have been clearly decided : (1) That 

 mere acceptance of the works by the employer is no answer 

 to a claim by the employer in respect of defective work ; and 

 (2) if there is a settlement between employer and contractor, 

 it is a question of fact whether that settlement is intended to 

 cover future as well as past claims for damages. In Jones v. 



