Under Article 6:239. § of the Hungarian Civil Code the constructor is responsible for the safe, professional, economic and timely completion of the work; the constructor as a professional is expected to foresee the effects that soil conditions may have on the construction and construction methods and has Duty to Warn the employer thereof, or where the design supplied by the employer are not suitable for the given soil type, or adopt the construction methods accordingly.
As such, the effect that soil conditions may have on the execution of the works is the contractor’s responsibility.
A possible exception from this rule is Article 6:240. of the Hungarian Civil Code, where the constructor has warned the employer, for example on the unsuitability of the terrain for the given design, but the employer instructed the constructor to carry out the works according to the instructions and despite the warning; in such cases the constructor may choose either to perform the contract according to the employer’s instructions (and at the employers own risk) or to rescind the contract. Where the employer’s instructions are unlawful or may harm the property or the life, bodily integrity or health of third parties, the constructor must deny carrying out such instructions.
It is worth noting, however, that Article 6:241. of the Hungarian Civil Code, the employer’s responsibility is primarily to handle over the construction site to the constructor in a condition that is suitable for performance of the work by the contractor. ‘Suitability’ of the site covers both legal (for example, undisputed ownership, obtaining of construction permits, creation of a construction e-log etc.) and practical conditions of the soil, such as providing sufficient and safe workspace, preliminary archeological digs or disarming of wartime munitions etc. The contractor may refuse commencing the work until the construction site is suitable, and if the site remains unsuitable, may rescind from the contract.
The regulation of the Civil Code allows the parties to agree in the contract that the constructor will be responsible for preparing the construction site for suitable work conditions, in which case the employer shall only bear the costs; due to the lack of experience, this is the more common stipulation in practice. Otherwise the Civil Code largely leaves it into the autonomy of the Parties to work out their mutual responsibilities in the contract, including regarding for the soil conditions.
BALÁZS & KOVÁTSITS Legal Partnership