2019/01/12

De Minimis Principle in construction


It is a legal term which is derived from a Latin expression referring to things that are too minimal or unimportant to be considered太瑣碎或不重要的事物. It is taken from a longer phrase which translates as ‘the law does not concern itself with trifles法律不涉及瑣事’. What this means in practice is that generally the law does not encourage parties to pursue legal action for breaches of rules or agreements where the impact is minimal. In case of Rea v Wellington City Council [2007] NZRMA 449. the Court has detailed explanation 1.

In a construction, the term 'De Minimis' often arises in relation to Practical Completion. Practical completion is often certified when there are De Minimis (very minor) items 'not affecting beneficial occupancy' that remain incomplete and that can be put right without undue interference or disturbance to occupants, i.e. the client is able to take possession of the works and use them for their intended purpose. However, the legal basis for this is not clear, and unless the contract states otherwise, if the works are not complete, practical completion need not be certified.

Practical Completion means that the works are fully completed to a state to permit the Employer to enter into full beneficial occupation, i.e. no outstanding works remain to be carried out save for very minor items of work being left incomplete on the ' De Minimis ' principle (the law does not concern itself with trifles).

The difficult question is whether the phrase covers the situation where the works are finished (save for very minor items) but there are also a number of apparent defects. In this connection, a potential problem arises due to the wording of the defects clause which provides that the Architect's power to order the remedying of defects during the defects liability period is limited to those defects 'which shall appear' during that period.

Refer to law case in H W Nevill (Sunblest) Ltd v. Wm. Press & Son Ltd (1981) 2, the court said that “I think that the word "practically" in clause 15(1) gave the architect a discretion to certify that William Press had fulfilled its obligation under clause 21(1) where very minor de minimis works had not been carried out, but if there were any patent defects in what William Press had done the architect could not have given a certificate of practical completion.” Apparent defects of a very trivial nature can be treated in the same way as outstanding works, being similarly subject to the same 'de minimis' principle.
Some examples of De Minimis works 3 : the works unlikely to affect the structural strength or support functions of a party structure or cause damage to the neighbour’s side of it, such as re-plastering, shallow chasing for electrical wiring or inserting power sockets, and screws to support shelves, kitchen cupboards, and the like.

However, the test for whether an effect is De Minimis is different from, and more stringent than, the test for whether an effect is minor or less than minor.

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