If you’ve assessed construction contracts, you’ve definitely seen it. Buried in a spec… tucked into Employer’s Requirements… sometimes even sitting in plain sight. “The works shall be fit for purpose.”
And most of the time, it just gets accepted.
No big discussion. No major red flags.
But here’s the thing. It should be a red flag.
So what does it actually mean?
Let’s strip it back.
Most obligations in construction are based on reasonable skill and care
In simple terms:
Do your job properly, act like a competent professional, follow standards and you’re covered.
“Fit for purpose” flips that.
It basically says:
The works have to do what they’re intended to do. Full stop.
And if it doesn’t? You’re likely on the hook. Even if;
- you followed every standard.
- your design was technically sound.
- no one was negligent.
That’s the shift.
Why this catches people out
The biggest issue isn’t that it exists. It’s that people don’t realise what they’ve agreed to.
It looks harmless
It’s only three words and feels like standard wording. So it slips through.
It’s often hidden
You might remove it from the contract conditions but then it pops up in:
- Technical specs
- Performance requirements
- Employer’s Requirements
Same risk, different place.
It’s not priced
This is the real problem from a QS point of view.
Most contractors are pricing based on:
- Known scope
- Standard risks
- Reasonable skill and care
Not:
- Guaranteeing performance
- Taking on outcome-based liability
So you end up with: risk in the contract that isn’t in the price
And the courts back it up
This isn’t just theory. The courts have been pretty clear on it.
In Greaves & Co (Contractors) Ltd v Baynham Meikle & Partners, a warehouse floor failed under normal use. The court effectively said the design needed to be suitable for its purpose not just competently designed.
In Independent Broadcasting Authority v EMI Electronics Ltd, a radio mast collapsed. The contractor had done everything “properly and was still liable.
And then there’s the big one:
MT Højgaard A/S v E.ON Climate & Renewables UK Robin Rigg East Ltd
Offshore foundations failed.
Design followed industry standards.
Still liable.
Why?
Because the contract required a specific outcome. A 20-year design life with the statement of Fit for Purpose. And that outcome wasn’t achieved.
This is where QSs earn their money
This is classic QS territory.
Because it’s not just legal wording, it’s commercial exposure.
When you see “fit for purpose”, the questions should be immediate:
- Have we priced this?
- Can we actually control this risk?
- Does our insurance even cover this?
And most of the time?
The answer is no.
What should you actually do about it?
Nothing complicated.
Just be consistent.
1. Push back early
At tender stage, just say:
“We’re happy to provide reasonable skill and care, but not fitness for purpose.”
Completely standard position.
2. Check the whole contract (not just the front end)
This is where people get caught.
You remove it from the conditions but it’s still sitting in the spec.
3. Think about insurance
If it’s not covered, you’re exposed.
Simple as that.
4. If you can’t remove it… at least price it
Sometimes you won’t win the argument.
Fine.
But don’t take it on for free.
So… is it ever OK?
Very occasionally.
If:
- The outcome is clearly defined
- You’ve got full control
- It’s been properly priced
But realistically?
That’s not most projects.
Our takeaway
“Fit for purpose” is one of those clauses that:
- Looks small
- Gets overlooked
- But carries serious risk
And once it’s in… it’s hard to argue later.
So the rule is simple:
If you see it, don’t ignore it. Challenge it. Every time.
As construction contract specialists, we can help. Contact us at support@metroun.co.uk or find our more information at metroun.co.uk
