Pub Date : 2021-05-25DOI: 10.1093/oso/9780198832805.003.0001
Paul Darling QC, J. Bradford
This chapter discusses the law relating to construction, engineering, and infrastructure contracts. It explains a series of rules developed by the law that guide the courts into making decisions about whether obligations will be enforced and analyses how courts enforce most contracts in circumstances where the parties had an intention to create legal relations. It also identifies parties that have the capacity to contract, such as adults and corporations. This chapter explains how undischarged bankrupt may enter into a contract without committing a criminal offence. It mentions government departments that can contract and sue or be sued pursuant to their contracts.
{"title":"Contracts: Formation and Interpretation","authors":"Paul Darling QC, J. Bradford","doi":"10.1093/oso/9780198832805.003.0001","DOIUrl":"https://doi.org/10.1093/oso/9780198832805.003.0001","url":null,"abstract":"This chapter discusses the law relating to construction, engineering, and infrastructure contracts. It explains a series of rules developed by the law that guide the courts into making decisions about whether obligations will be enforced and analyses how courts enforce most contracts in circumstances where the parties had an intention to create legal relations. It also identifies parties that have the capacity to contract, such as adults and corporations. This chapter explains how undischarged bankrupt may enter into a contract without committing a criminal offence. It mentions government departments that can contract and sue or be sued pursuant to their contracts.","PeriodicalId":296429,"journal":{"name":"Wilmot-Smith on Construction Contracts","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-05-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124448673","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-05-25DOI: 10.1093/oso/9780198832805.003.0016
Kelly Stricklin-Coutinho
This chapter discusses the power to grant an injunction derives from section 37 of the Supreme Court Act 1981 and the court’s inherent jurisdiction. It mentions a specific performance as an order of the court which requires a party to perform its contractual promises. It also talks about the contracts for the sale of land as an order for specific performance that encompasses the empowerment of an officer of the court to perform the obligation if the party which has contracted to sell then refuses to do so. This chapter clarifies that a specific performance is to all intents and purposes a sub-species of an injunction. It cites orders for specific performance that are under development agreements where a developer or management company has agreed to execute work to a proper standard and has not done so in the construction sphere.
{"title":"Injunctions and Specific Performance","authors":"Kelly Stricklin-Coutinho","doi":"10.1093/oso/9780198832805.003.0016","DOIUrl":"https://doi.org/10.1093/oso/9780198832805.003.0016","url":null,"abstract":"This chapter discusses the power to grant an injunction derives from section 37 of the Supreme Court Act 1981 and the court’s inherent jurisdiction. It mentions a specific performance as an order of the court which requires a party to perform its contractual promises. It also talks about the contracts for the sale of land as an order for specific performance that encompasses the empowerment of an officer of the court to perform the obligation if the party which has contracted to sell then refuses to do so. This chapter clarifies that a specific performance is to all intents and purposes a sub-species of an injunction. It cites orders for specific performance that are under development agreements where a developer or management company has agreed to execute work to a proper standard and has not done so in the construction sphere.","PeriodicalId":296429,"journal":{"name":"Wilmot-Smith on Construction Contracts","volume":"68 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-05-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121652754","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-05-25DOI: 10.1093/oso/9780198832805.003.0013
David Hopkins
This chapter deals with forfeiture clauses, which are designed to provide a contractually regulated early end to the obligations of the parties under the contract. It explains how a forfeiture clause may allow determination for cause or determination without cause. It also points out that a forfeiture clause will not exclude common law rights to terminate and subsist in parallel to the forfeiture clause. This chapter assesses the standard forms of contract that often refer to forfeiture clauses as termination clauses and sometimes use the language of rescission. It defines rescission as the unwinding of a contract back to the point of its inception.
{"title":"Determination or Forfeiture Clauses","authors":"David Hopkins","doi":"10.1093/oso/9780198832805.003.0013","DOIUrl":"https://doi.org/10.1093/oso/9780198832805.003.0013","url":null,"abstract":"This chapter deals with forfeiture clauses, which are designed to provide a contractually regulated early end to the obligations of the parties under the contract. It explains how a forfeiture clause may allow determination for cause or determination without cause. It also points out that a forfeiture clause will not exclude common law rights to terminate and subsist in parallel to the forfeiture clause. This chapter assesses the standard forms of contract that often refer to forfeiture clauses as termination clauses and sometimes use the language of rescission. It defines rescission as the unwinding of a contract back to the point of its inception.","PeriodicalId":296429,"journal":{"name":"Wilmot-Smith on Construction Contracts","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-05-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130059846","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-05-25DOI: 10.1093/oso/9780198832805.003.0020
Peter Rees Qc, David Brynmor Thomas Qc, David J. Bateson, Samar Abbas Kazmi
This chapter explains that an arbitration agreement is an agreement to submit to arbitration present or future disputes. It analyses the Arbitration Act 1996, which governs all arbitrations in England and Wales and provides that an arbitration agreement is made in writing. It also discusses the special nature of an arbitration agreement as it is not discharged by death and survives the repudiation, frustration, or discharge of the agreement with which it is concerned. This chapter elaborates that the first step for any employer, contractor, or sub-contractor involved in a dispute is to check and see whether the dispute is governed by an arbitration agreement. It reviews the most common incorporation by reference, which is when parties agree that a particular set of standard conditions shall govern their agreement.
{"title":"International Construction Arbitration","authors":"Peter Rees Qc, David Brynmor Thomas Qc, David J. Bateson, Samar Abbas Kazmi","doi":"10.1093/oso/9780198832805.003.0020","DOIUrl":"https://doi.org/10.1093/oso/9780198832805.003.0020","url":null,"abstract":"This chapter explains that an arbitration agreement is an agreement to submit to arbitration present or future disputes. It analyses the Arbitration Act 1996, which governs all arbitrations in England and Wales and provides that an arbitration agreement is made in writing. It also discusses the special nature of an arbitration agreement as it is not discharged by death and survives the repudiation, frustration, or discharge of the agreement with which it is concerned. This chapter elaborates that the first step for any employer, contractor, or sub-contractor involved in a dispute is to check and see whether the dispute is governed by an arbitration agreement. It reviews the most common incorporation by reference, which is when parties agree that a particular set of standard conditions shall govern their agreement.","PeriodicalId":296429,"journal":{"name":"Wilmot-Smith on Construction Contracts","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-05-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131086656","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-05-25DOI: 10.1093/oso/9780198832805.003.0012
Daniel Benedyk, R. Keating
This chapter analyses the basic rule governing the assessment of damages for breach of contract, which emphasizes that no special or different rules apply to construction contracts. It explains that the basic rules have no limits to its application to the amount of loss that can be recovered. It also discusses how limits involve a set of rules which go back to the famous and ancient case of Hadley v Baxendale. This chapter describes the categories of recoverable loss, such as the damages which the other party ought to receive in respect of a breach of contract. It analyses the second limb of the rule in Hadley v Baxendale that relates to special circumstances known to the parties at the time the contract was made.
{"title":"Damages for Breach of Contract","authors":"Daniel Benedyk, R. Keating","doi":"10.1093/oso/9780198832805.003.0012","DOIUrl":"https://doi.org/10.1093/oso/9780198832805.003.0012","url":null,"abstract":"This chapter analyses the basic rule governing the assessment of damages for breach of contract, which emphasizes that no special or different rules apply to construction contracts. It explains that the basic rules have no limits to its application to the amount of loss that can be recovered. It also discusses how limits involve a set of rules which go back to the famous and ancient case of Hadley v Baxendale. This chapter describes the categories of recoverable loss, such as the damages which the other party ought to receive in respect of a breach of contract. It analyses the second limb of the rule in Hadley v Baxendale that relates to special circumstances known to the parties at the time the contract was made.","PeriodicalId":296429,"journal":{"name":"Wilmot-Smith on Construction Contracts","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-05-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126268882","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-06-30DOI: 10.1038/scientificamerican10011903-85bbuild
Nick Higgs
{"title":"Time for Completion","authors":"Nick Higgs","doi":"10.1038/scientificamerican10011903-85bbuild","DOIUrl":"https://doi.org/10.1038/scientificamerican10011903-85bbuild","url":null,"abstract":"","PeriodicalId":296429,"journal":{"name":"Wilmot-Smith on Construction Contracts","volume":"133 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131686715","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.1093/oso/9780198832805.003.0006
Richard Wilmot-Smith QC
This chapter analyses the law of tort that relates to damage and addresses the question of whether the damage is actionable if it is caused by someone’s negligence. It explains how the law of tort is not to be understood only by the creation of a legal duty rather is dependent upon damage. It also notes the recovery in tort if someone has suffered damage, which is in contra-distinction to the law of contract. This chapter looks at damage and its categorization, focusing on the tort of negligence in relation to defective structures that has two separate species. It describes the first species that permits recovery for direct costs or losses that suffered as a result of a negligent act or omission, while the second species relates to all losses.
{"title":"Tort and Construction Law","authors":"Richard Wilmot-Smith QC","doi":"10.1093/oso/9780198832805.003.0006","DOIUrl":"https://doi.org/10.1093/oso/9780198832805.003.0006","url":null,"abstract":"This chapter analyses the law of tort that relates to damage and addresses the question of whether the damage is actionable if it is caused by someone’s negligence. It explains how the law of tort is not to be understood only by the creation of a legal duty rather is dependent upon damage. It also notes the recovery in tort if someone has suffered damage, which is in contra-distinction to the law of contract. This chapter looks at damage and its categorization, focusing on the tort of negligence in relation to defective structures that has two separate species. It describes the first species that permits recovery for direct costs or losses that suffered as a result of a negligent act or omission, while the second species relates to all losses.","PeriodicalId":296429,"journal":{"name":"Wilmot-Smith on Construction Contracts","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129281121","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.1093/oso/9780198832805.003.0010
David Sawtell, Nick Higgs
This chapter looks at the payment provisions introduced by the Housing Grants, Construction and Regeneration Act 1996 (HGCRA) that apply to most substantial onshore construction operations in the UK. It analyses construction contracts defined under sections 104–105 of the HGCRA, which must contain a minimum, mandatory payment, and payment notice regime. It also explains how the HGCRA regulates and prohibits payment provisions, such as ‘pay when paid’ clauses. This chapter probes section 109 of the HGCRA, stipulating that any party to a construction contract in the UK is entitled to payment by instalments, stage payments, or other periodic payments for any work under the contract. It reviews the relevant statutory provisions in the HGCRA and the Scheme for Construction Contracts (England and Wales) Regulations 1998, which provide a payment code that must be followed in every UK construction contract from October 2011.
{"title":"Certificates and the Right to Payment","authors":"David Sawtell, Nick Higgs","doi":"10.1093/oso/9780198832805.003.0010","DOIUrl":"https://doi.org/10.1093/oso/9780198832805.003.0010","url":null,"abstract":"This chapter looks at the payment provisions introduced by the Housing Grants, Construction and Regeneration Act 1996 (HGCRA) that apply to most substantial onshore construction operations in the UK. It analyses construction contracts defined under sections 104–105 of the HGCRA, which must contain a minimum, mandatory payment, and payment notice regime. It also explains how the HGCRA regulates and prohibits payment provisions, such as ‘pay when paid’ clauses. This chapter probes section 109 of the HGCRA, stipulating that any party to a construction contract in the UK is entitled to payment by instalments, stage payments, or other periodic payments for any work under the contract. It reviews the relevant statutory provisions in the HGCRA and the Scheme for Construction Contracts (England and Wales) Regulations 1998, which provide a payment code that must be followed in every UK construction contract from October 2011.","PeriodicalId":296429,"journal":{"name":"Wilmot-Smith on Construction Contracts","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127876409","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.1002/9781119196655.ch8
Paul Darling QC
This chapter focuses on the Bribe Payers’ Index, which ranked the construction industry as the sector in which firms were most likely to pay and receive bribes. It reviews the very nature of the construction industry that makes it more susceptible to bribery than other industries as large projects are complex and will often involve interaction between multiple parties. It also emphasizes how bribery can occur at any stage in a construction project, such as in planning, design, tendering, construction, operation, and maintenance. This chapter recounts the reform of the law on bribery that dates back to the Nolan Committee’s Report on Standards in Public Life in 1995, which was set up in response to concerns about unethical conduct by those in public office. It refers to the Law Commission that first made proposals for reform of bribery in its 1998 Report.
{"title":"Bribery","authors":"Paul Darling QC","doi":"10.1002/9781119196655.ch8","DOIUrl":"https://doi.org/10.1002/9781119196655.ch8","url":null,"abstract":"This chapter focuses on the Bribe Payers’ Index, which ranked the construction industry as the sector in which firms were most likely to pay and receive bribes. It reviews the very nature of the construction industry that makes it more susceptible to bribery than other industries as large projects are complex and will often involve interaction between multiple parties. It also emphasizes how bribery can occur at any stage in a construction project, such as in planning, design, tendering, construction, operation, and maintenance. This chapter recounts the reform of the law on bribery that dates back to the Nolan Committee’s Report on Standards in Public Life in 1995, which was set up in response to concerns about unethical conduct by those in public office. It refers to the Law Commission that first made proposals for reform of bribery in its 1998 Report.","PeriodicalId":296429,"journal":{"name":"Wilmot-Smith on Construction Contracts","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121866802","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.1093/oso/9780198832805.003.0005
P. Hennessey, Philippe Kuhn
This chapter discusses professions that are traditionally concerned with building and engineering works, such as architects, engineers, and quantity surveyors. It analyses how project managers are being added to the group of construction professionals engaged by employers. It also probes the work of construction professionals in England, Wales, and Scotland that is subject to the Housing Grants, Construction and Regeneration Act 1996 (HGCRA). This chapter cites a construction contract in the HGCRA as an agreement to do architectural, design, or surveying work or provide advice on building, engineering, interior decoration, or exterior decoration to construction operations. It looks at traditional forms of contract that is responsible for the design of the works and the contractor for the construction.
{"title":"The Roles of Professionals","authors":"P. Hennessey, Philippe Kuhn","doi":"10.1093/oso/9780198832805.003.0005","DOIUrl":"https://doi.org/10.1093/oso/9780198832805.003.0005","url":null,"abstract":"This chapter discusses professions that are traditionally concerned with building and engineering works, such as architects, engineers, and quantity surveyors. It analyses how project managers are being added to the group of construction professionals engaged by employers. It also probes the work of construction professionals in England, Wales, and Scotland that is subject to the Housing Grants, Construction and Regeneration Act 1996 (HGCRA). This chapter cites a construction contract in the HGCRA as an agreement to do architectural, design, or surveying work or provide advice on building, engineering, interior decoration, or exterior decoration to construction operations. It looks at traditional forms of contract that is responsible for the design of the works and the contractor for the construction.","PeriodicalId":296429,"journal":{"name":"Wilmot-Smith on Construction Contracts","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124410040","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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