Clause 11.10 — Unfulfilled Obligations (FIDIC Yellow Book 📘1999 / 📒2017)

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1️⃣ Purpose of 11.10

Why it exists: To prevent the Performance Certificate from becoming a “get-out-of-jail-free” card. After Taking-Over and the DNP(s), some duties can still remain (handover spares, complete as-builts, final O&M deliverables, settle testing adjustments, latent defect responsibilities, etc.). 11.10 preserves those duties. In both editions, it says the Contract shall be deemed to remain in force for identifying and enforcing such unperformed obligations.

Who it protects:

• Employer ✅ ensures the Contractor still completes any outstanding deliverables or callbacks.
• Contractor ✅ preserves rights owed by the Employer (e.g., payments/adjustments that became due but weren’t processed yet).

Critical link: Only the Performance Certificate constitutes acceptance of the Works; timing of that certificate ties directly to when 11.10 starts to matter.

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2️⃣ Breakdown of 11.10 (with source-backed wording)

📘 1999 — Clause 11.10 Unfulfilled Obligations

• “After the Performance Certificate has been issued, each Party shall remain liable for the fulfilment of any obligation which remains unperformed at that time. For the purposes of determining the nature and extent of unperformed obligations, the Contract shall be deemed to remain in force.”

📒 2017 — Clause 11.10 Unfulfilled Obligations (refined)

• Same core sentence as 1999: each Party remains liable for any unperformed obligation and the Contract is deemed to remain in force to identify them.
• New in 2017: For Plant, the Contractor is not liable for defects or damage occurring more than two years after expiry of the DNP for the Plant, except where prohibited by law or in cases of fraud, gross negligence, deliberate default or reckless misconduct. This is a big policy addition.

Practical anchor points you’ll use with 11.10:

• 11.9 Performance Certificate: defines when “acceptance” happens and triggers the “unfulfilled obligations” landscape.
• Guidance notes in both editions flag that national limitation periods may require tailoring this clause in Particular Conditions.

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3️⃣ Key Interpretations & Implications

• “Contract deemed to remain in force” 🧠
  This does not revive the whole contract for all purposes; it’s a legal device to identify/enforce leftover duties (e.g., supply of spares, training hours, as-built records). It keeps the liability window open only for those unperformed items.
• 2017’s Plant liability cap ⛔🛠️
  The two-year cap after DNP for Plant defects adds certainty and business-friendly closure for design-build Plant. Employers must manage risk via warranties, maintenance regimes, or extended DNPs if they need longer cover. Exceptions (fraud, gross negligence, deliberate default, reckless misconduct) remain fully enforceable.
• Interplay with close-out & final accounts 💸
  In 1999, 14.14 Cessation of Employer’s Liability is a separate close-out anchor; in 2017, this area is re-structured across 14.12 Discharge and 14.13 Issue of FPC, but 11.10 still carves out that any unperformed duties survive. (See clause maps.)
• Why FIDIC tweaked 2017 📘➡️📒
  The added cap aligns with modern risk allocation, reducing “long tail” exposure for Plant while preserving Employer protection for egregious conduct and what local law might mandate.

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4️⃣ Cross-References that “lock in” 11.10

• 11.9 Performance Certificate — the trigger; acceptance and the moment after which 11.10 bites. (Both editions.)
• 12 Tests after Completion — lingering performance verifications may straddle DNP; 11.10 ensures any resulting duties still bind. (Both editions contain full TAC regimes.)
• 14 Final account & Discharge — does not nullify unperformed obligations; structure differs across editions but the concept coexists with 11.10.

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5️⃣ What-If Scenarios (applied)

1. As-builts missing at PC
   • Situation: Performance Certificate issued, but as-built drawings and O&M manuals are incomplete.
   • Effect: Under 11.10, Contractor must still submit them; the contract is deemed in force for that purpose. Employer may withhold related sums per payment clauses if linked, or claim for non-submission losses.
2. Plant bearing fails 30 months after DNP
   • 1999: No express 2-year cap in 11.10; parties rely on law/PCs.
   • 2017: Contractor is not liable (beyond two years from DNP) unless fraud/gross negligence/deliberate default/reckless misconduct or law prohibits such a cap. Employer should have arranged extended DNP, spares, or service contracts if needed.
3. Retention release but training hours pending
   • Even if retention is released post-PC, unperformed training (if required) is still due under 11.10; Employer can seek performance or damages.

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6️⃣ Suggestions for Clarity & PCs (aligned with Golden Principles)

• Define “Plant” scope tied to the 2-year cap 🧩
  Clarify which systems qualify as Plant and state the DNP used to calculate the two years. (2017.)
• Add a schedule of “Unfulfilled Items at PC” 📋
  At PC issuance (11.9), attach a jointly initialled list of unfulfilled items + target dates and remedies (no waiver implied).
• Coordinate with legal limitation periods ⚖️
  Mirror the guidance: check if local law shortens/extends liability; tweak 11.10 second paragraph (2017) if necessary. (Both editions’ guidance explicitly flag this.)
• Link to payment mechanics 💳
  Cross-reference any withholding/release logic so outstanding obligations don’t get stranded only as damages claims.

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7️⃣ Final Takeaways

• Core rule (both editions): After PC, each Party still owes whatever remains unperformed; the contract stays “alive” only to define and enforce those remnants.
• 2017 evolution: A clear two-year cap (post-DNP) for Plant defects—subject to law and serious-fault exceptions—reduces long-tail risk. Plan for this in procurement and O&M strategy.
• Draft smart PCs: Map remaining duties at PC, align with local limitation periods, and tie payment milestones to completion of the “unfulfilled list.”

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🧭 Visual explainer (quick timeline)

Taking-Over → DNP runs → PC issued → “Unfulfilled list” remains enforceable (11.10)
For 2017 Plant: liability for defects beyond two years after DNP ends (save for fraud/gross negligence etc. or if law says otherwise).

FIDIC **11.10** Letters Unfulfilled Obligations

Pick an edition and scenario, fill optional fields, then Generate Letter. Output stays hidden until you click the button. All wording is editable after generation.

📘 1999 📒 2017

Accent

Scenario (Clause 11.10 context) Contractor → Employer — Notice of Employer’s Unfulfilled Obligations after PC Employer → Contractor — Notice to Complete Unfulfilled Contractor Obligations Engineer → Both — Reminder of Continuing Obligations & Claim Steps Contractor → Employer — Submission of Remaining Deliverables & Close-Out Employer → Contractor — Recover Costs / Set-Off for Non-Clearance (11.11 + 11.10) Contractor → Engineer — Fully Detailed Claim from Employer’s Unfulfilled Obligations Employer → Contractor — Warranty/Defect Claim after PC (11.10; 2017 Plant nuance)

Letter Date

Project Name

Contract No.

Performance Certificate (PC) Date

Default Response Window (days)

Optional addressing fields

To (Name & Address)

Cc

From / Signatory

(2017) DNP / Plant Note

Outstanding items (comma-separated)

Extra clause refs

Generate Letter

All wording aligns to the chosen edition: claims timing, Engineer role (**3.5/3.7**), etc.

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