The rule
The act applies only where all the construction works are entrusted to a single party: a contractor, a property developer or a main contracting firm. Splitting the works between firms therefore removes the protection.
As soon as the client appoints several firms, entrusting for instance the shell to one, the services to another and the finishes to a third, the act no longer applies.
It is a binary rule with no proportionate middle ground: partial protection does not exist. The test is therefore checked before signature.
The two typical arrangements
| Arrangement | Breyne Act | Position of the client |
|---|---|---|
| Turnkey or off-plan sale | applicable | protected, a single counterpart |
| Separate trades | not applicable | client under several contracts |
In the first case, the construction professional is the one concluding the necessary contracts, with the architect and the firms. The purchaser buys a result.
In the second case, the client concludes each contract themselves and takes on coordination. They buy services.
The difference is not only legal, it is economic. It is addressed from the cost angle in the guide on construction costs per m².
The paradox of the test
It deserves stating plainly, because it disconcerts. The test bears on the contract, not on the site.
The legally most protective arrangement is also the one leaving the least technical control. By entrusting everything to a single party, the client gains strong legal protection and loses the ability to choose each firm.
Conversely, the separate-trades arrangement gives control and removes protection. The client becomes the coordinator, with the corresponding responsibilities, and without the act's safety net.
That is not a legislative inconsistency. The protection targets whoever relies entirely on a professional; whoever organises their own site is treated as a client in full.
What "all the works" covers
The notion calls for two clarifications, as it is a source of discussion. They concern subcontracting and separate trades.
The architect does not count. Their involvement is mandatory and separate, and appointing them separately does not remove the arrangement from the act's scope. That obligation is covered in the article on the architect and mandatory involvement.
Works the client reserves may raise questions. An arrangement entrusting the essentials to a single party while reserving a few items has no automatic answer.
Application of the act to a given agreement is always a question of fact. Examples and guidance serve only as pointers, and a borderline situation calls for legal advice.
Situations to check
Four configurations deserve careful examination. They sit at the boundary of the test.
Change during the project. An arrangement initially in separate trades that shifts to a main contract, or the reverse, changes the applicable regime.
A single contract with subcontracting. A single party that subcontracts remains a single party, subcontracting being their own relationship, covered in the article on subcontracting and the contract chain.
Successive contracts with the same professional. Artificially splitting an operation into several contracts to escape the act invites recharacterisation.
Sale of a completed property. Where the property is finished at the time of sale, the act's conditions need not be met, the protection targeting construction still to come or under way.
What this means for a professional
Four rules.
Ask the structural question at the very start, since it determines the entire contractual regime.
Inform the private client explicitly of the consequences of their choice, the difference in protection being considerable.
Do not split an operation to escape the act, the sanction being criminal and the risk of recharacterisation real.
Have borderline situations checked, characterisation being a question of fact.
This article reflects rules and case law at the date of checking and serves professional orientation. It does not constitute legal advice and does not replace assessment of the individual case.