Domestic contract or domestic cat. What's the difference?

by Roland Finch
NBS Technical Author

There are several references to 'Domestic' in NBS products. They include the NBS Engineering Services 'domestic' library; NBS Building 'domestic' subcontract Preliminaries, and the 'NBS Domestic' specification tool. But do these terms mean the same thing, and more importantly, if they don't, what are the differences?

The expression 'domestic' comes from the Latin word domus, meaning 'house'. So it is predominantly used to describe things that go on in a house or household. Things like domestic bliss, domestic servants or domestic pets fit in this category. However it is not always used in this way. It's sometimes used to demarcate countries. 'Gross Domestic Product' (GDP) applies at a national level, for example, and we have 'Domestic' and 'International' sports.

In the construction industry, the term is not so easy to define. Consider the Building Regulations. The Scottish Technical Standards have two versions, domestic and non-domestic, but the rest of the UK calls them dwellings and buildings other than dwellings.

Meanwhile, the Construction (design and management) regulations 1994 (CDM) set out what was meant by a 'Domestic' Client – in the guidance for CDM, HSE states that: 'A domestic client is someone who lives, or will live, in the premises where the work is carried out'.

However, the definition has been excluded from the 2007 version, which simply describes a 'Client' as:

'a person who in the course or furtherance of a business:

(a) seeks or accepts the services of another which may be used in the carrying out of a project for him; or

(b) carries out a project himself'

So the focus here is on the commercial nature of the person commissioning the work. It's generally accepted that people who have work done on their own home aren't doing it as a business, although the distinction may not be so clear when it comes to second homes, or groups of residents in shared accommodation, for example.

JCT (and SBCC in Scotland) produce contracts for 'homeowner/ occupiers'. These appear to be broadly the same as Domestic clients, but they aren't called the same thing so, logically, they must be different, even though there isn't an obvious explanation of what the differences are.

JCT helpfully points out that these contracts are designed as 'Consumer' contracts. This term is easier to define as it is enshrined in UK law. The Unfair terms in consumer contracts regulations 1999 (UTCCR) defines a Consumer as:

a natural person entering into a contract for purposes outside their trade, business or profession...

The definition is important, because the UTCCR are primarily concerned with protecting (presumed innocent) consumers against unscrupulous traders, and their 'small print' contracts which distort the balance of risk. Under the regulations, a term which significantly reduces the consumer's statutory or common law rights is unenforceable, with an exception where they have negotiated it freely – but the onus is on the trader to prove that it is not unfair.

The trouble with this approach is that many of the standard forms of contract, professional appointments and suchlike are written with just the opposite in mind. They are full of terms which might be deemed as unfair or in language that might be unclear to a consumer, because they are designed to be used by experienced professionals who are perfectly able to identify the risks and manage them appropriately. Even 'consensus' contracts, like those published by JCT, are the result of negotiations and trade-offs between the various colleges that comprise that body.

So should you use a Domestic Subcontract for domestic work? Well, you can, but it's not specifically designed for that type of work. In this context, a domestic subcontractor is simply the 'main' contractor's own 'in-house' subcontractor. They are given that epithet to distinguish them from 'Nominated' or 'Named' Subcontractors, who are appointed using a particular process, and enjoy additional contractual rights, and a 'special' relationship with the Employer.

Summary

So what have we learned? Well, when thinking of clients, I like to use this rule of thumb:

• Domestic: someone in a house
• Homeowner /occupier: someone in their own house
• Consumer: Someone in or outside a house which may or may not be their own, buying things - but not as part of a business.

It can be very confusing, but the main thing to remember is that the definitions are not interchangeable, and you should always take care to find out precisely which one you are dealing with.

And not to keep out of discussions with electricians about domestic consumer units...

Related NBS information:

Articles:

• Advising clients on the appropriate form of building contracts
• JCT Major Project Construction Contract

Selected links:

• Contracts

February 2011

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