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A Short History of Defective Building Delivery Damages

The earliest known construction law arose in Babylonia around 1600 BCE.

King Hammurabi legislated the following:

  1. If a builder build a house for a man and do not make its construction firm, and the house which he has built collapse and cause the death of the owner of the house, that builder shall be put to death.
  2. If it cause the death of a son of the owner of the house, they shall put to death a son of that builder.

This did not seem to do much for the plaintiff to put him back in the place he was before the damages occurred. Rather, Hammurabi’s code specified an eye for an eye. Thus, there were purely punitive damages for a defective structure. Hammurabi was silent on whether the plaintiff would be entitled to damages after he had his revenge. Nonetheless, there wasn’t too much defective construction in Babylonia after this code was emplaced.

Shortly after Moses parted the Red Sea, he found that construction was different on the other side. The Israelites were unfamiliar with flat roofs. He made it law that “When you build a new house, then you shall make a battlement for your roof, that you bring not blood on your house, if any man fall from there.” Deuteronomy 22:8.

Otherwise known as the “parapet requirement,” this qualifies to be the “First Commandment of Construction Law.”

Its import was that if somebody fell from a roof that lacked a parapet, there was a presumption that the builder was a murderer. Moses’ remedy is vaguer than Hammurabi’s, but there is a clear implication in the word “murderer” that this is a capital crime and the guilty party would be executed. Note, if the crime could be negotiated down to manslaughter, the builder would be eligible to flee to one of three sanctuary cities in Israel, hopefully one with pitched roofs.

Even before Nero’s new building code (understandably preoccupied with fire prevention), the Romans generally would inquire as to whether the builder actually intended to allow the building to fall down before imposing the death penalty upon him. The Romans, while traditionally remembered as a bit cold, ironically required a finding of malice aforethought before someone was put to death.

The Romans also created causes of action that, in the case of a defective building, could be tortious or contract based. As they litigated in the forum, the magistrate could order money damages based on a finding of liability on the causes of action. These concepts eventually were incorporated into today’s Common Law.

The Roman’s tortious standard contained the rudiments of present tort law, which governs the measure of damages for a defective structure that killed somebody, or merely one that was delivered in a defective state. In most modern jurisdictions, the measure of damages for a wrongful death would include medical expenses, conscious pain and suffering, out-of-pocket funeral expenses and lost wages. The Plaintiffs in this case would be the deceased’s spouse and minor children (loss of Consortium).

With respect to modern residential construction, in 1964, the Supreme Court of Colorado was the first court in the country to abandon the doctrine of caveat emptor (buyer beware) and hold that a builder-vendor of a completed residential home impliedly warrants that it complies with applicable building code requirements, is built in a workmanlike manner and is suitable for habitation [Carpenter v. Donohoe, 154 Colo. 78, 83-84 (1964)]. This is generally referred to as the Implied Warranty of Habitability. This warranty applies when there are latent defects that create substantial questions of safety and/or habitability. Many jurisdictions have adopted this cause of action.

Depending on the jurisdiction (and ruling out statutory, punitive and consequential damages) the measure of damages for breach of a construction contract is the cost of repairing or remedying the building. However, if this is not possible, alternative damages could be the difference between the fair market value of the property without the defect and the fair market value of the property with the defect.

If Hammurabi were alive today, he would likely be a proponent of statutory, punitive and consequential damages to enforce his code. These would substantially add to a money judgment amount. While these remedies do not equate to the death penalty, it does seem that societies need to flirt with the draconian to enforce their building codes.

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