The pivotal role of handover
A principle established by the Luxembourg case law consulted. Handover marks the start of the guarantee periods.
In the absence of handover, the builder's liability falls under ordinary contractual liability.
After handover, it falls under articles 1792 and 2270 of the civil code, which establish specific guarantees borne by builders.
Handover therefore determines both the applicable regime and the starting point of the periods.
It is not an end-of-project formality, but the act that fixes the liability framework for the years that follow.
Its date must therefore be established without ambiguity, which is a matter for the contract documents covered in the guide on specification and tendering.
| Notion | What it covers | Starting point |
|---|---|---|
| Handover | Acceptance of the works | Act of the parties |
| Apparent defects | What is visible at handover | Covered if not reserved |
| Hidden defects | What emerges in use | Applicable guarantee |
Major and minor works
This is the distinction proper to the Luxembourg regime. It separates apparent defects from hidden ones.
Articles 1792 and 2270 of the civil code provide a ten-year guarantee period for defects affecting major works.
They provide a two-year period for defects affecting minor works.
Those covered are architects, contractors and other persons bound to the client by a contract for works.
Classifying a defect as major or minor therefore determines the length of exposure, which makes it a first-order issue in the event of a claim.
That classification is a matter for judicial assessment, and this guide offers no criterion to substitute for it.
What these guarantees cover
The professional sources consulted add detail. They cover the duration and object of each guarantee.
The damage covered is of a certain seriousness, for example compromising the stability of the works or rendering them unfit for their purpose.
It results from defects hidden at handover, and must come to light within the applicable period.
A defect apparent at handover therefore does not fall under this regime, which underlines the importance of reservations recorded at handover.
That seriousness requirement excludes minor defects, which fall under other contractual mechanisms.
The subcontractor's position
A specific and often misunderstood point. It concerns how guarantee and insurance fit together.
Professional sources indicate that a party acting as subcontractor does not have the status of builder, having no direct link with the client.
Their civil liability may nonetheless be engaged towards the main contractor and the client.
The case law consulted indicates that a subcontractor is in principle bound by all a contractor's obligations towards their own customer, without their liability following the same articles.
In other words: being a subcontractor is no shelter, it merely places you on a different legal footing.
This point is developed in the article on subcontracting and its risks.
What this means for a professional
Four rules.
Establish the handover date without ambiguity, it fixes the starting point for everything.
Record reservations at handover, apparent defects not falling under the guarantee regime.
Check insurance cover across the whole period of exposure, which may reach ten years.
Do not assume that subcontractor status reduces exposure, it only changes its basis.
This article reflects the law at the date of checking and serves professional orientation. It does not constitute legal advice.