ROMANIA Law and Practice Contributed by: Monia Dobrescu and Mădălina Trifan, Mușat & Asociații
• The price set depending on the level of works or services, in which case the contractor has a legal obligation to inform the beneficiary regarding the state of works, the services pro - vided and the costs incurred. • The standard price, in which the contract is concluded for a global price, where the costs are not subject to any kind of modification, regardless of the circumstances that may arise during the development of the project. The investor/developer should also consider any additional costs, such as may be caused by obtaining all the necessary legal permits required to start construction (eg, building permit). 7.2 Assigning Responsibility for the Design and Construction of a Project Under Romanian legislation, construction works are undertaken by a contractor, while the design project of a construction is prepared by an archi - tect and the civil engineer. The responsibility is divided between the contractor, the architect and the engineer. The contractor is liable for the quality of the work (eg, hidden defects of the construction or any other faults in the construc - tion that may arise from improper execution of the project), whilst the architect or engineer is liable for any defects that may arise from a faulty design in the construction project. 7.3 Management of Construction Risk The Romanian Civil Code provisions are as fol - lows. • There is a general guarantee for hidden defects, whereby the contractor guarantees the beneficiary for any hidden defects over a period of three years starting from the receipt of the project, or starting from the date when the defect was revealed (provided that the defect is discovered within the initial three-
year period). A hidden defect is defined as a defect that could not be discovered or fore - seen by a prudent and diligent buyer. • Based on the freedom of agreement principle established under the law, the parties may agree on conventional guarantee terms, so a limitation of liability is possible. It will, how - ever, not operate for those defects that were or should have been known to the contractor. • Guarantees for hidden defects are subject to special regulations. Law No 10/1995 on quality in constructions states that a ten-year guarantee is provided with regard to the liability of the constructor and oth - er participants in the construction process (eg, architect, authorised site manager, developer, designer). Such individuals can be held liable for hidden defects that arise from their fault, such as defects that may affect the structural elements of the construction (the ten-year term runs from the project’s receipt). The buyer of a construction with hidden defects may file a liability complaint for hidden defects to court within three years from the receipt of the project or the date the defect was discovered. 7.4 Management of Schedule-Related Risk The schedule of the construction project is usu - ally subject to clear milestone and completion dates, which are agreed upon by the parties prior to the beginning of the construction. A common method used to sanction the constructor if the milestone or completion dates are not observed is delay penalties, usually backed by a guaran - tee. In this regard, the parties assess in advance, by means of a penalty clause, the extent of the damage suffered as a result of the delay in the execution of the obligation.
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