Q&A - The burden of proof for defects appearing during the guarantee period
In our latest Q&A, Johan Isaksson and Anne Wijkman presents whether, in a construction contract, it is the client who has the burden of proof that a defect has appeared during the guarantee period or if the contractor has the burden of proof that a defect claimed by the client has not appeared.
According to AB 04 / ABT 06 Chapter 5 § 5, the contractor is responsible for defects that appear during the guarantee period. However, the question is whether it is the client who has the burden of proof that a defect exists or if it is sufficient for the client to claim that a defect exists, whereby the burden of proof then lies with the contractor to show that no defect exists. To answer this question, the rules on defects and the responsibility for defects in AB 04 and ABT 06 need to be reviewed.
What is a "defect" according to AB 04 / ABT 06?
According to the definitions in AB 04 and ABT 06, a defect is a non-conformance which implies that a part of the total works has not been executed at all or has not been executed in accordance with the contract. By "non-conformance," it is generally meant something that objectively does not conform to what is normal or expected. A "non-comformance" can, for example, be that a building is not constructed in such a way that it meets the Swedish National Board of Housing, Building and Planning's regulations or that water intrusion occurs in a house built by the contractor. However, this does not necessarily mean that the non-conformance also constitutes a defect according to AB 04 and ABT 06. The "non-conformance" may be due to the client prescribing an execution that results in the Swedish National Board of Housing, Building and Planning's regulations not being met or enables water intrusion to occur, and then the contract work is executed in accordance with the contract. It is common to express this as distinguishing between "defect" and "defect in the legal sense of contract work." A "defect" is then the actual non-conformance, e.g., that the building does not meet a requirement according to regulatory provisions, while a "defect in the legal sense of contract work" is that the non-conformance also means that the contract work is not executed in accordance with the contract, i.e., the responsibility for the "non-conformance" lies with the contractor. The concept of defect as used in AB 04/ABT 06 thus includes an assessment of who is responsible for the defect.
Who is responsible for a "defect"?
If a non-conformance that means a part of the contract work has not been executed at all or has not been executed in accordance with the contract is found during an inspection, the contractor is responsible for the defect. Furthermore, according to AB 04 / ABT 06 Chapter 5 § 5, the contractor is responsible for defects that appear during the subsequent guarantee period. The guarantee commitment according to Chapter 5 § 5 means a presumption of liability for the contractor for defects that appear during the guarantee period.
Who has the burden of proof that a "defect" has appeared?
In the commentary to AB 04 Chapter 5 § 5, it is stated that "if the contractor believes that he is not responsible for the reported defect, it is up to the contractor to show that he has executed the contract work in accordance with the contract or make it likely that the reported defect is due to incorrect planning and design, neglect, abnormal use, or something else that can be attributed to the client." There is a similar wording in the commentary to the provision in ABT 06.
It should be noted that the commentaries indicate that there are two different standards of proof depending on the basis the contractor invokes for not being liable for the defect. If the contractor claims that he has executed the contract work in accordance with the contract and therefore is not responsible for the defect, the contractor must show this. If the contractor, on the other hand, claims that the defect is due to incorrect planning and design, neglect, abnormal use, or something else that can be attributed to the client, it is sufficient for the contractor to make it likely that such a condition is at hand.
Based on the commentaries, it is a common perception among clients that it is sufficient for the client to claim that there is a "non-conformance" from the client's justified expectation for the contractor to have the burden of proof that the "non-conformance" is not due to the contractor, i.e., does not constitute a defect in the legal sense of contract work, i.e., a reversed burden of proof. However, it should be questioned whether the statements in the commentaries can be considered to mean that the contractor has the burden of proof that a claimed non-conformance is not due to the contractor.
If it is found that a non-conformance exists, it follows from the principle stated in the commentaries to Chapter 5 § 5 that the contractor must show that the contract work has been executed in accordance with the contract or make it likely that the non-conformance is due to a condition on the client's side. If the contractor also has the burden of proof for the non-existence of the non-conformance itself, it is, however, a departure from what applies according to dispositive law. Not even the consumer sales law's consumer-friendly provisions impose the burden of proof on the seller that a claimed defect does not exist. The presumption rule in § 20 a of the Consumer Sales Act only implies a presumption that the defect existed at the time of delivery if the defect appears within six months of the purchase. The consumer still has the burden of proof that a defect in the goods actually exists. This also applies to small house contracts if the question is whether a defect even exists (see Samuelsson and Arvidsson, Contract Work Agreements between Business Operators and Consumers, Zeteo 2018-09-13, p. 192 and the Göta Court of Appeal's judgment of October 12, 2017, in case no. T 3300-16 and the Court of Appeal for Western Sweden's judgment of April 4, 2018, in case no. T 3531-17).
Nor does the provision on guarantees in the Sale of Goods Act (Section 21, second paragraph) imply that the seller has the burden of proof that a defect does not exist, instead it is the buyer who has the burden of proof that a defect exists. Only when it is shown that a defect exists is it presumed that the defect existed at the time of delivery.
In light of what applies according to dispositive law, it seems somewhat peculiar if Chapter 5 § 5 – which only states that "The Contractor shall liable for defects which become apparent during the guarantee period" – would mean that the contractor is imposed with the burden of proof that a claimed non-conformance does not constitute a defect in the contract work. The wording of the provision only means that the contractor is liable for defects that appear during the guarantee period, i.e., not that the contractor has the burden of proof that a claimed non-conformance does not constitute a defect. A reversed burden of proof normally requires an explicit provision to this effect, which Chapter 5 § 5 cannot be considered to express.
The conclusion should therefore be that the provisions in Chapter 5 § 5 of AB 04 and ABT 06 do not mean that the contractor has the burden of proof that a claimed non-conformance is not due to the contractor. Instead, it should be the client who has the burden of proof that a non-conformance from the contract requirements actually exists and has appeared during the guarantee period. This means, in our opinion, that the client must show that the non-conformance can be located to or traced to the contract work (see in this regard Magnusson, Andreas and Wagner, Alexander, Defects in AB 04, JT 2023-24, pp. 1-32). The client must therefore show the factual circumstances that form the basis for the claimed non-conformance that constitutes a defect in the contract work. What the client must show will thus depend on the type of non-conformance being claimed and what the contract documents prescribe. If the client, for example, claims that there are deviations from professional execution, it is up to the client to show both what constitutes professional execution and that the work in question deviates from what can be considered professional. Only when the client has shown that a non-conformance actually exists does the contractor have the burden of proof that the contract work has been executed in accordance with the contract (with the standard of proof "shown") or that the non-conformance is due to something that can be attributed to the client (with the standard of proof "make it likely").
In summary, it is our assessment that it is not sufficient for a client to merely claim that a "defect" exists for the contractor to have the burden of proof that the "defect" is not due to the contractor. The client has the burden of proof that a deviation from the contract requirements actually exists, and only when the client has fulfilled their burden of proof does it fall on the contractor to show that the contract work has been executed in accordance with the contract or that the non-conformance is due to something that can be attributed to the client and that the non-conformance has therefore not been caused by how the contractor executed their work.
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Please note that the above information is general and aims to provide a basic understanding of what applies in normal cases. If you have a specific question that you need help with, it is often good to discuss it with someone knowledgeable in the field. There may be circumstances in the individual case that make the answer different. We have extensive experience and are happy to help with advice on specific questions. Here you can read more about how we work with contract law.
