On December 21st 2018, the Executive Power enacted Law No. 19,726, modifying the special responsibility regime of architects, engineers, builders and entrepreneurs, within the limits of their respective participation in the constructions carried out by them.
The new law is the culmination of a long process of debate in the parliamentary sphere, in which the main actors involved in the subject participated, among them, the Society of Architects, the organizations defending the rights of consumers and the Schools of Law and Architecture of the Universities of Uruguay.
Finally, and within the various projects and recommendations of the aforementioned institutions, in December 2018 the law modifying article 1844 of the Civil Code, dated from 1868, was passed.
Among the main modifications to the Civil Code:
• Engineers and builders are included among the passively legitimized, in addition to Architects and Entrepreneurs (who were already identified in the original version of the Civil Code).
• The special responsibility will only cover the construction of buildings destined "by their nature to be long lasting". In this way, and following the Italian and Argentine legislation (articles 1273 and 1276 Civil and Commercial Code of the Argentine Nation and article 1669 of the Italian Code), the assets that may lead to holding the subjects named are limited. Thus, constructions in wood or other materials such as mud will be excluded from this regime, to be regulated by the general rules of contractual civil liability (articles 1341 and following of the Civil Code).
• The hypotheses in which the subjects can be held responsible are now divided into three groups, namely:
1) Liability for 10 years: for faults or defects of the building that, either in whole or in part, affect its stability or solidity (the so-called "structural ruin") or make it unfit for the express or tacitly agreed use of or for the use to which it is normally destined (the so-called "functional ruin"), for defects of the construction or the ground, for an incorrect direction of the work, for calculation defects or for poor quality of the materials, whether or not supplied by the principal.
In this group no restrictive or disclaimer agreements are allowed, as public order is at stake. In addition, it is a case of aggravated objective liability. Thus, the defect of the materials provided by the principal that have not been rejected by the eventually responsible subjects, even when the damage occurred during the execution, will not constitute a strange cause not attributable to the defect.
2) Liability for 5 years: for the rest of the faults, except those that affect elements of completion or completion of the works. This is a residual group.
3) Liability for 2 years: for defects or faults that only affect elements of completion of the works.
In the last two sections, limitation or liability exemption agreements are allowed, without restrictions other than those established by Law No. 17,250 of Consumer Protection, being a consumer relationship.
• It is established verbatim that responsibility is not only contracted with respect to the principal (who commissioned the work or construction), but also to the successive purchasers of the building.
• The statute of limitations for a legal action is considerably shortened. In the previous regime, once the fault appeared, which could appear within ten years of delivery of the work, a prescription period of 20 years began. With the new law, the term of prescription to demand is shortened to 4 years once the faults appear, in the 10, 5 or 2-year groups, depending on the defect in question. The term for the appearance of the faults is computed from the date when the building is handed over.
• Law No. 17,250, in the case of a consumer relationship, remains in force.
• The new law will be applied to construction contracts held after the entry into force of the same.
Montevideo, October 2018