The notion of exclusively professional equipment element is a key element of the construction insurance reform adopted on June. This concept deserves special development in order to capture all facets.

What are the elements that make up the book?

We can consider that the construction of a work results from the assembly by the work of the man of two types of distinct elements:

The constituent elements of the work. These are the elements specific to the structure itself, which constitute the foundations (part of the structure allowing its attachment to the ground), the frame (part of the structure allowing to receive and transmit to the foundations the efforts resulting from the charges of all kinds), the closed and the cover (part of the work allowing to ensure the protection at least partial against the aggressions of the natural events which are the storm, the rain …),

The equipment elements of the work. These are elements that do not meet the criteria listed above and that are intended to complete the structure to make it functional and usable by the user (floors, partitions, elevators, sanitary …).

Damage that affects the equipment elements of the structure may be subject to the assumption of decennial liability of the manufacturers (Article 1792 and following of the Civil Code), according to the application of certain criteria depending on the mode of implementation.

Inseparable piece of equipment

Mode of implementation: equipment that cannot be removed dismantled or replaced without damaging the structure it equips.

Illustrative examples: recessed pipes, central heating installations, plumbing and electricity installations…

Criterion (s) qualifying the damage of a decennial nature: damage that compromises the strength of the professional power equipments or renders the work itself unsuitable for its purpose.

Dissociable equipment element

Mode of implementation: equipment that can be removed dismantled or replaced without damaging the structure it equips.

Examples given as an indication: false ceiling, carpet, wall covering, doors, tiles…

Criterion (s) qualifying the damage of a decennial nature: damage that renders the work unsuitable for its purpose.

WHAT ABOUT EXCLUSIVELY PROFESSIONAL EQUIPMENT?

The question can be put in these terms: should we consider that machines, tools, industrial equipment …, on the pretext that they are in the work, place on those who install them the presumption of decennial responsibility of the builders and hence the insurance obligation?

The courts consider that the failure of the work tool compromises the activity of the company, but without affecting the factory which houses it and which continues to fulfill its function of “work”.

Thus, the judges exclude from the system of decennial liability and compulsory insurance damage to exclusively professional items of equipment, on the grounds that these elements are not intended to meet the constraints of exploitation and use of the equipment. ‘Work.

The public authorities anxious to remove any ambiguity on this subject have inserted in the Civil Code an article 1792-7 which states that “are not considered as elements of equipment of a work within the meaning of articles 1792 and following of the Civil Code the elements of equipment including their accessories whose exclusive function is to allow the exercise of a professional activity in the book “.

Attention! This does not mean that the company that has supplied and installed a piece of exclusively professional equipment will be exempted from all liability, but that the victim will have to act on the basis of the contractual liability of common law (Article 1147 of the Civil Code) and that its material damage will not be taken care of under the compulsory decennial insurance.

Illustrative examples of exclusively professional equipment: wood kiln, automobile assembly line, industrial lifting crane, automated pig feed system, fitted kitchen in a restaurant, pizza ovens, computer equipment, machinery of electricity production (turbines, alternators …) in a micro-power station …

CONCEPT OF EXCLUSIVE FUNCTION OF THE ITEM OF EQUIPMENT

This concept, which is retained by the law, is of capital importance and deserves particular attention because it limits the exclusion to only equipment whose exclusive function is the exercise of a professional activity in the work, which implies that the elements of ” mixed ” equipment are in fact covered by the legal guarantees scheme of the law of 4 January 1978.

By “mixed” equipment element, it is necessary to understand the elements that have a dual function in the structure: they meet both the operational needs of the structure and the needs of the professional activity.

Examples given as an indication of “mixed” equipment: electrical ducts serving both the function of space and industrial operation, air conditioning system allowing the habitability of premises and avoiding overheating of the central computer system of the company (server and computer backup unit) …

The notion of “exclusive function” is not obvious to define; it will be difficult to know exactly whether the equipment in question has a “mixed” or exclusively professional function. The question is likely to arise whenever equipment is implemented in a work, without it being possible to provide a clear, precise and definitive answer.

This formulation is a source of “legal insecurity”, as it risks generating litigation in the courts.

That is why the Auxiliary includes in the contracts of the manufacturer-builders a specific guarantee in the case of the supply of exclusively professional equipment, to allow them to face this responsibility provided for by the civil code.

WHAT YOU MUST REMEMBER

The function of the equipment in the book answers:

To the needs of the book:

Presumption of Decennial Liability: YES

Compulsory insurance: YES

To the needs of the work and the professional activity (mixed function):

Presumption of Decennial Liability: YES

Compulsory insurance: YES

Only for the needs of the professional activity (exclusive function):

Presumption of decennial liability: NO, but contractual liability under ordinary law.

Compulsory insurance: NO, therefore need to take out additional insurance.