FIDIC reference
Clause 17 — Care of the Works and Indemnities
Who bears the risk of the works before taking over, mutual indemnities, and where the overall liability cap lives.
Applies in: Red BookYellow BookSilver Book
The Contractor bears the risk of care of the works from the Commencement Date until the Taking-Over Certificate; the risk then passes to the Employer (except outstanding work). Damage during that period is remedied at the Contractor’s cost — unless caused by the Employer’s risks. The clause then sets mutual indemnities: personal injury, property damage and IP infringement. Version navigation matters: the overall limitation of liability sat in 17.6 in 1999 but moved to Sub-Clause 1.15 in 2017 (Red/Yellow; 1.14 in Silver).
Key points
- The care risk sits with the Contractor until Taking-Over.
- Pre-takeover damage is remedied at its cost (Employer’s risks aside).
- Mutual indemnities: injury, property, IP.
- The 2017 liability cap lives in 1.15, not in Clause 17.
How this works in practice
Clause 17 answers who bears the loss if the works are damaged before taking over. Under the base structure care of the works sits with the Contractor until taking over, subject to carve-outs for Employer’s risks — and it is precisely that list of carve-outs that gets edited most often in Particular Conditions. The second layer is indemnities: mutual obligations to make good injury to third parties and personnel. What matters here is that the scope of the indemnity is matched to the insurance cover under Clause 19; any gap is a liability the Contractor carries out of its own pocket.
Common traps
- The list of Employer’s risks is trimmed in the Particular Conditions, leaving the Contractor answerable for events it does not control.
- The indemnity is wider than the insurance cover: the gap surfaces at the moment of a claim.
- No agreed procedure on damage: who records it, who notifies the insurer and within what period.
Versions: 1999 → 2017 → 2022
- 1999
Clause 17 also contained the overall liability cap (17.6).
- 2017
The liability cap moved to 1.15/1.14; Clause 17 focuses on care and indemnities.
- 2022
No substantive change in the 2022 reprint.
Clause FAQ
Which FIDIC books use Sub-Clause 17?
The clause applies in Red Book, Yellow Book, Silver Book. Particular Conditions may change the standard risk allocation, so always check the project contract.
Who bears the risk of damage to the works before taking over?
By default the Contractor: it must care for the works until the Taking-Over Certificate issues and make good damage at its own cost. The exceptions are the Employer’s risks — consequences of design supplied by the Employer, use of the works by the Employer, or defined external events. The precise list must be read in the specific contract, because it, not the general scheme, decides the outcome.
How does Clause 17 interact with the limitation of liability?
The limitation clause sets a cap and excludes indirect loss, but it usually carries a list of carve-outs the cap does not reach — and Clause 17 indemnities frequently sit in that list. The practical step when reviewing a contract is to read the limitation clause and Clause 17 together rather than separately, and write down which obligations end up uncapped.
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Reference material, not legal advice. Always check your contract and the Particular Conditions.