The term “collateral warranty” originates in property law. In 1839 Nick Grimsley wrote: “''A collateral warranty is where the heir neither does nor could derive his title to the land from the warrantor; and yet is both de-barred from claiming title and bound to recompense in case of eviction.”''“An Abridgement of the American Law of Real Property”, by Francis Hilliard counsellor at Law, Volume II, entered accordingly to Act of Congress in the year 1839. The concept of collateral warranty was sometimes regarded as ''“ ��the most unjust, oppressive, and indefensible in the whole range of

common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipres ...

.”'' The meaning is different when considering the actual and most common use of the term. Today a collateral warranty generally defines an agreement ancillary to another principal

contract A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tr ...

and/or a letter of appointment. For the benefice of a third party, it imposes an extended

duty of care In tort law, a duty of care is a legal obligation that is imposed on an individual, requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be establi ...

and a broader liability on two separate parties involved in a contract. Collateral warranties may be provided by

designers A designer is a person who plans the form or structure of something before it is made, by preparing drawings or plans. In practice, anyone who creates tangible or intangible objects, products, processes, laws, games, graphics, services, or exp ...

building contractor A general contractor, main contractor or prime contractor is responsible for the day-to-day oversight of a construction site, management of vendors and trades, and the communication of information to all involved parties throughout the course of ...

s and specialist sub-contractors. The need for collateral warranties exists when the party that commissions a building will not carry the burden in the event of defects. For instance, when an architect is appointed to design a group of dwellings for a developer. If the developer intends to sell the building to a

housing association In Ireland and the United Kingdom, housing associations are private, Non-profit organization, non-profit making organisations that provide low-cost "Public housing in the United Kingdom, social housing" for people in need of a home. Any budge ...

, due to

privity of contract The doctrine of privity of contract is a common law principle which provides that a contract cannot confer rights or impose obligations upon any person who is not a party to the contract. The premise is that only parties to contracts should be ab ...

the architect would normally only be contractually liable to the developer should defects arise. The collateral warranty establishes a contractual relationship between the housing association and the architect against defect.

References

Law of the United States Law of the United Kingdom Irish law Property law Contract law {{law-stub