Last edited 12 Feb 2019

The meaning of breach in the construction industry

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The term ‘breach’ can have several different meanings in the context of the built environment context.

In a legal sense, it refers to a failure to observe a legal responsibility, an agreement, regulation, code of conduct, and so on.

A breach of confidence is a failure to observe an agreement, often relating to private information that has been conveyed from one party to another.

A breach of a duty of care is a form of common law negligence.

If the one of the parties to a contract fails to perform as required, this may constitute a breach of contract. Such a breach may entitle the innocent party to make a claim for damages for the losses it has suffered.

A breach of contract can be a:

  • Material breach: A breach which is serious, and the innocent party may also consider that it is discharged from any further obligations under the contract.
  • Non-material breach: Also known as a default, this is a breach which is less serious. The innocent party may make a claim for damages, but may not consider it is discharged from any further obligations under the contract.
  • Anticipatory breach: Also known as an anticipatory repudiation, this occurs when one of the parties to the contract declares to the other that they do not intend to perform their obligations under the contract.

For more information, see Repudiatory breach in construction contracts and Breach of contract.

The term irremediable breach refers to a situation in which there is a defect in the works for which the cost of rectification is unreasonable relative to the nature of the defect. Under these circumstances a deduction may be made from the amount payable relative to the amount by with the value of the works has been reduced by the defect.

For more information, see Irremediable breach.

The term may also be used in the context of a ‘security breach’ or ‘data breach’, which may relate to unauthorised access to a building or site, or a form of cyber-attack or data hacking.

It can also be used in the context of a default in a structure, such as a river breaching its bank, or floodwater breaching a wall.

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