Substance over form: If you control the construction site, you are liable for defects
Purchasing a newly built property should mean one thing above all: certainty. Yet it is not uncommon for infiltrations, system failures, or other defects capable of undermining a property’s functionality and value to emerge within a few years of handover.
In such cases, who can the buyer hold liable for the resulting damage? Only the contractor who carried out the works, or also the party who sold the property?
The Court of Cassation answered this question in Order no. 16894 of 29 May 2026: the seller may be held liable for serious defects in a building under Article 1669 of the Civil Code even where the seller did not personally carry out any construction activity.
Article 1669 of the Civil Code: enhanced extra-contractual liability
Article 1669 of the Civil Code, placed within the provisions governing contracts for works, regulates liability for the ruin and serious defects of buildings.
This is a particularly stringent form of liability, which Italian case law classifies as extra-contractual and which stands apart from ordinary warranty actions by virtue of notably more favourable time limits.
Defects must manifest within ten years of the completion of the works; the buyer must give notice within one year of discovery; and legal proceedings must be initiated within one year of that notice.
This regime differs markedly from both the warranty for defects in sale and the warranty available in contracts for works.
The reason lies in the underlying rationale: Article 1669 of the Civil Code does not merely protect the individual owner’s interests, but also safeguards values of a general public nature — the structural safety of buildings, their durability, and ultimately the physical safety of their occupants.
It is precisely this public policy dimension that has led the Court of Cassation to progressively extend the circle of potentially liable parties beyond the traditional figure of the contractor.
No need to build — control is enough
The most significant aspect of the Order under examination concerns the identification of the parties who may be held liable.
The Court of Cassation reaffirms that liability under Article 1669 of the Civil Code does not fall exclusively on the contractor who carried out the works. It may extend to the seller who, although having entrusted the construction to external contractors, designers, and works supervisors, retained effective powers of direction, coordination, or oversight of their activities.
What matters is not who physically laid the bricks. What is decisive is identifying who participated in the construction process by making decisions, issuing instructions, or supervising the execution of the works.
Where the seller maintains this role, the construction remains attributable to that party as well, and liability for any serious defects subsequently discovered under Article 1669 of the Civil Code may accordingly be imputed to them.
Who bears the burden of proof?
The Court of Cassation also established that it is not for the buyer to prove that the seller exercised supervisory or directive powers. Quite the contrary: it is the seller who must demonstrate that they had no power of control, coordination, or direction over the contracting company.
This is a principle that may significantly affect litigation strategy, particularly in more complex real estate transactions where the boundaries between developer, project promoter, and contractor are often blurred.
Practical implications for buyers and industry operators
For buyers, the decision provides important confirmation. Protection is not limited to the contractor: it may extend to all parties who retained the power to issue instructions or to oversee the conduct of others involved in the construction.
For professional sellers, real estate developers, and companies promoting residential or commercial building projects, the message is equally clear. Entrusting works to specialist contractors is not sufficient to discharge all liability. Those who continue to direct, coordinate, or supervise the construction site also bear the risk of liability for any serious defects in the completed works.
In this area of law, at least, substance prevails over form.
