B has a contract with C that states:

  1. B will design a building for C; and
  2. C will indemnify B in respect of losses resulting from negligence in design.

B proceeds to design the building.

Roof tiles used, were not compliant with B's design. B has warned this to C's client who insisted to use heavier tiles. Is it a breach of contract by C -not using the tiles as designed by B or B's contract with C has been discharged by performing the design?


There was no requirement for B to actually construct the building, much less use the specified components of the building in such a construction.

There is no breach of contract.

  • Is this contract discharged by performance - as B designed the building- even though his design is not implemented. Assuming that implementation is in the control of C? Dec 21 '15 at 8:16
  • 1
    Well, technically the indemnity creates an ongoing obligation and so the contract is not discharged.
    – jimsug
    Dec 21 '15 at 8:29
  • What is the legal relationship between C's client and B. B warned C's client about use of heavier tiles. Is it a duty of care? Dec 21 '15 at 8:35
  • 1
    It might be, but C's client has decided to use different roof tiles. The indemnity doesn't even matter, because it's not a negligent design issue. non volenti fit injuria - to a willing party, injury is not done. C's client has places themselves in harm. They have no claim in tort against B or C, and there is certainly no contract with B.
    – jimsug
    Dec 21 '15 at 13:22
  • I can not understand volenti non fit injuria in these circumstance because it is only applicable to a person who presumably accepted the risk or injury. If the roof collapse in this case it is negligent act of C or their Client. Their negligent act can harm somebody who comes in. If somebody comes in, knowingly that the roof is dangerous. Volunti doctrine can be applicable to him. Do you agree? Dec 21 '15 at 14:30

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