In an earlier article, we discussed the introduction of this Act and its expected consequences for contractors (see Stricter construction safety requirements: the impact of the ‘Quality Assurance (Building Sector) Act’ on the construction industry). The most significant amendment to Title 7.12 of the Dutch Civil Code (DCC) was the new fourth paragraph of Article 7:758 DCC, which extends the contractor's liability for construction after delivery.

Now that the QAA has been in force for two years, the first case law provides greater insight into how this provision is being applied in practice. In this blog, we consider the interpretation of the concept of "construction (work)" in the light of emerging case law and we discuss the impact of Article 7:758(4) DCC on construction contracting practice, particularly in relation to the Uniform Administrative Conditions for the Execution of Works and Technical Installation Works 2012 (UAC 2012) (2025 version) often applied to construction contracts.

The core of Article 7:758(4) DCC

Since 1 January 2024, the rule has been that, under a contract pertaining to a construction, the contractor remains liable in principle for defects not discovered at the time of delivery, so-called "hidden defects". This marks a departure from the traditional position under which delivery, in many cases, brought an end to liability for ‘hidden’ defects where the principal ought to have discovered them at the time of delivery.

Pursuant to Article 7:758(4) DCC, the contractor is liable for a defect in the construction after delivery unless it can demonstrate that:

i. the defect was discovered and accepted by the principal at the time of delivery; or

ii. the defect is not attributable to the contractor.

The burden of proof therefore largely rests with the contractor, making the regime notably more favourable to principals.

Defining the scope: the concept of "construction"

For the application of Article 7:758(4) DCC, it is first essential to determine whether a "construction" is involved. Since the introduction of the QAA, there has been discussion about the delimitation of this concept and the question of how broadly the scope of the provision should be interpreted. The first case law now provides points of reference for answering that question.

Since the introduction of the QAA, there has been debate regarding the concept of a construction. Broadly, two approaches can be distinguished:

i. A narrow interpretation, aligned with the public law definition of "construction" (as under the Dutch Environment and Planning Act). This approach limits the scope of Article 7:758(4) DCC. In the public law context, a construction is defined as:

“a construction of some size of wood, stone, metal or other material which, at its intended location, is either directly or indirectly connected to the ground or either directly or indirectly supported by or on the ground, intended to function at that location, including the building-related installations forming part of it, other than a vessel used for the accommodation of persons that is intended and used for sailing.”

ii. A broader interpretation, which focuses on the purpose and structure of Title 7.12 DCC and the QAA. Under this approach, works and components that substantially contribute to the realisation of a construction also fall within the scope of the regime.

The first civil law judgments show that courts are adopting differing approaches. In 2025, three lines of reasoning are emerging:

i. Practical application without express demarcation

In a case concerning the supply and installation of solar panels, the court applied Article 7:758(4) DCC without expressly addressing whether there was a construction. It is therefore implicitly accepted that such works may fall within the scope of the provision.

ii. Broad interpretation for components of a construction

In a judgement concerning defective roofing, the court explicitly held that components necessary for the functioning of a construction – such as a roof – also fall within the concept of a construction. The stricter liability regime therefore applies in full.

iii. Limits to the concept of a construction

In a case concerning the construction of an aluminium hull for a sailing vessel, the court held that there was no construction, aligning with the public law definition. This judgment confirms that the regime is not without limits and that certain contracts for work fall outside its scope.

Taken together, these judgements confirm that the scope of Article 7:758(4) DCC is being interpreted pragmatically and on a case-by-case basis, with components of a building capable of falling within the regime relatively readily.

The impact of Article 7:758(4) DCC on construction contracting practice

For professional principals, Article 7:758(4) DCC is semi-mandatory law. This means that deviation from this provision is only possible by express contractual agreement, and not through general terms and conditions applied to the contract. This restriction has led to amendments to various sets of standard conditions used in construction practice, including the UAC 2012.

Under the original version of the UAC 2012, subparagraphs 1 and 2 of paragraph 12 contained a separate regime for hidden defects. In short, the contractor was only liable after delivery for defects that were both attributable to the contractor and which could not reasonably have been discovered by the principal at the time of delivery or during execution. The manner of supervision during execution and the moment of delivery played a central role: what was visible or apparent at that time under careful supervision was, in principle, at the principal's risk.

With the introduction of the QAA, this starting point changed fundamentally. Under Article 7:758(4) DCC, the contractor is liable for defects discovered after delivery, regardless of whether they should have been discovered at the time of delivery. As deviation from this provision cannot be achieved through general terms and conditions, subparagraphs 1 and 2 of paragraph 12 of the UAC 2012 effectively ceased to have effect. In the revised 2025 version, these provisions have been removed.

Significance for project development and construction practice

The first case law demonstrates that Article 7:758(4) DCC is not merely theoretical, but is already having practical effect in disputes. In particular:

i. works closely connected to a construction may readily fall within the stricter liability regime; and

ii. the distinction between a ‘component of a construction’ and ‘other contracts for work’ is legally relevant, but yet to be fully crystallised.

In practice, for projects involving professional parties, a tailored contractual regime is often included in construction contracts regarding delivery and the contractor's post-delivery liability, deviating from both the statutory framework and the UAC. Such contractual regimes generally mirror the liability regime for non-construction works under Article 7:758(3) DCC. This means that the contractor is, in principle, discharged from liability for defects that the principal ought to reasonably have discovered at the time of delivery. The emphasis is therefore placed on visually observable defects, without requiring any form of detailed supervision by the principal during execution or at delivery.

Closing remarks

Two years after the introduction of the QAA, it is becoming clearer how Article 7:758(4) DCC operates in practice. Although no settled line has yet emerged, the first judgements indicate that the courts place the protection of the principal at the forefront and, in many cases, interpret the concept of construction broadly. It is therefore important for contractors and principals to take this into account in contract drafting and project execution.

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