Pub Date : 1900-01-01DOI: 10.1093/oso/9780198832805.003.0002
John Denis-Smith
This chapter focuses on the United Kingdom’s (UK) most substantial building contracts that were let under standard forms of contract, such as the RIBA JCT forms, the standard forms issued by the Institution of Civil Engineers, and the government contract (GC/Works/1). It explains how the forms adopted a similar format for the execution and management of the works wherein the employer’s agent was responsible for the design and the administration of the contract terms. It also describes the certification of interim payments to the contractor as the works progressed, certifying extensions of time, completion, and the date the works ought to have been completed.
{"title":"Standard Forms of Contract and Bespoke Contracts","authors":"John Denis-Smith","doi":"10.1093/oso/9780198832805.003.0002","DOIUrl":"https://doi.org/10.1093/oso/9780198832805.003.0002","url":null,"abstract":"This chapter focuses on the United Kingdom’s (UK) most substantial building contracts that were let under standard forms of contract, such as the RIBA JCT forms, the standard forms issued by the Institution of Civil Engineers, and the government contract (GC/Works/1). It explains how the forms adopted a similar format for the execution and management of the works wherein the employer’s agent was responsible for the design and the administration of the contract terms. It also describes the certification of interim payments to the contractor as the works progressed, certifying extensions of time, completion, and the date the works ought to have been completed.","PeriodicalId":296429,"journal":{"name":"Wilmot-Smith on Construction Contracts","volume":"22 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":"132647002","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/9780198832805.003.0009
Hannah McCarthy
This chapter tackles guarantee or bond, which has no definitive judicial definition but is widely held to be a contract in which the guarantor agrees to be answerable for the debt or default of another to a third party. It cites the primary obligation of a third party that is underwritten by the guarantor as an essential characteristic of a guarantee. It also explains how the guarantor becomes answerable for the faults of the third party. This chapter talks about the indemnitor that undertakes a primary liability to another party in order to indemnify the other party against a specific event, which may or may not involve the act or default of a third party. It points out that the indemnity contained in construction sub-contracts is the most frequently used form of indemnity in the construction industry.
{"title":"Guarantee and Indemnity","authors":"Hannah McCarthy","doi":"10.1093/oso/9780198832805.003.0009","DOIUrl":"https://doi.org/10.1093/oso/9780198832805.003.0009","url":null,"abstract":"This chapter tackles guarantee or bond, which has no definitive judicial definition but is widely held to be a contract in which the guarantor agrees to be answerable for the debt or default of another to a third party. It cites the primary obligation of a third party that is underwritten by the guarantor as an essential characteristic of a guarantee. It also explains how the guarantor becomes answerable for the faults of the third party. This chapter talks about the indemnitor that undertakes a primary liability to another party in order to indemnify the other party against a specific event, which may or may not involve the act or default of a third party. It points out that the indemnity contained in construction sub-contracts is the most frequently used form of indemnity in the construction industry.","PeriodicalId":296429,"journal":{"name":"Wilmot-Smith on Construction Contracts","volume":"81 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":"114875435","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/9780198832805.003.0015
Michael Franks
This chapter reviews the operation of the statutory restrictions on the prosecution of stale claims that caused Parliament to pass acts of limitation designed to prevent the bringing of claims after a certain period to eliminate the injustice of unduly delayed claims. It analyses the operation of key domestic statutory limitation periods applicable to common construction law disputes and the policy justifications behind them. It also reviews the application of foreign limitation periods. It emphasizes the essential procedural nature of a limitation defence under English law, which requires that any applicable time bar must be pleaded by a defendant if it is to be effective.
{"title":"Limitation of Actions","authors":"Michael Franks","doi":"10.1093/oso/9780198832805.003.0015","DOIUrl":"https://doi.org/10.1093/oso/9780198832805.003.0015","url":null,"abstract":"This chapter reviews the operation of the statutory restrictions on the prosecution of stale claims that caused Parliament to pass acts of limitation designed to prevent the bringing of claims after a certain period to eliminate the injustice of unduly delayed claims. It analyses the operation of key domestic statutory limitation periods applicable to common construction law disputes and the policy justifications behind them. It also reviews the application of foreign limitation periods. It emphasizes the essential procedural nature of a limitation defence under English law, which requires that any applicable time bar must be pleaded by a defendant if it is to be effective.","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":"122054552","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/9780198832805.003.0008
Karim Ghaly QC
This chapter focuses on mistake, which can be described as an erroneous belief of parties that wish to enter into a contract. It explains that mistakes determine whether a contract comes into existence at all or whether a written contract is to be interpreted in a manner that appears to run contrary to its text. It also discusses the distinction of mistakes between mistakes as to the terms of the contract or the identity of the contracting parties and mistakes as to the factual and legal assumptions that underlie the contract. This chapter elaborates that mistakes as to terms or identity may give rise to a wide range of legal consequences, depending on the nature of the mistake. It clarifies that a mistake as to the facts or law that underlie an agreement can only affect an apparent contract in a very narrow set of circumstances.
{"title":"Mistake, Misrepresentation, and Frustration","authors":"Karim Ghaly QC","doi":"10.1093/oso/9780198832805.003.0008","DOIUrl":"https://doi.org/10.1093/oso/9780198832805.003.0008","url":null,"abstract":"This chapter focuses on mistake, which can be described as an erroneous belief of parties that wish to enter into a contract. It explains that mistakes determine whether a contract comes into existence at all or whether a written contract is to be interpreted in a manner that appears to run contrary to its text. It also discusses the distinction of mistakes between mistakes as to the terms of the contract or the identity of the contracting parties and mistakes as to the factual and legal assumptions that underlie the contract. This chapter elaborates that mistakes as to terms or identity may give rise to a wide range of legal consequences, depending on the nature of the mistake. It clarifies that a mistake as to the facts or law that underlie an agreement can only affect an apparent contract in a very narrow set of circumstances.","PeriodicalId":296429,"journal":{"name":"Wilmot-Smith on Construction Contracts","volume":"19 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":"121887053","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/9780198832805.003.0019
David Sawtell, Nick Higgs
This chapter reviews sections 104–117 of the Housing Grants, Construction and Regeneration Act 1996 (HGCRA), which provide the legislative framework for both the right to adjudication and for payment protections within construction contracts. It mentions the Construction Contracts (England and Wales) Regulations 1998 or the Scheme, which provide the legislative framework for both the right to adjudication and for payment protections within construction contracts. It also talks about the amended versions of the Scheme that were introduced by separate statutory instruments for England, Wales, and Scotland. This chapter recounts how the scheme arose from the report of Sir Michael Latham, which reviewed procurement and contractual arrangements in the UK construction industry. It looks at the effectiveness of the policy of the HGCRA in respect of adjudication.
{"title":"Adjudication","authors":"David Sawtell, Nick Higgs","doi":"10.1093/oso/9780198832805.003.0019","DOIUrl":"https://doi.org/10.1093/oso/9780198832805.003.0019","url":null,"abstract":"This chapter reviews sections 104–117 of the Housing Grants, Construction and Regeneration Act 1996 (HGCRA), which provide the legislative framework for both the right to adjudication and for payment protections within construction contracts. It mentions the Construction Contracts (England and Wales) Regulations 1998 or the Scheme, which provide the legislative framework for both the right to adjudication and for payment protections within construction contracts. It also talks about the amended versions of the Scheme that were introduced by separate statutory instruments for England, Wales, and Scotland. This chapter recounts how the scheme arose from the report of Sir Michael Latham, which reviewed procurement and contractual arrangements in the UK construction industry. It looks at the effectiveness of the policy of the HGCRA in respect of adjudication.","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":"128803821","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: 10.4324/9781315758398-20
Adrian Hughes QC, Gethin Thomas
This chapter identifies standard forms and bespoke forms of contract that provide a mechanism whereby the employer can order changes to the work to be done. It discusses the power to order varied work that is used frequently by employers who have often not had all their requirements sorted out at the time of the letting of the contract. It also distinguishes limitations upon the employer’s right to vary the work pursuant to a normal variation clause, such as the limitation in which the change ordered cannot alter the essential characteristic of the contract itself. This chapter covers the limitation in which the employer may not order the omission of work simply in order to instruct another contractor to do the same or almost the same work. It describes claims for sums due under the contract that are dealt with non-contentiously.
{"title":"Loss and Expense","authors":"Adrian Hughes QC, Gethin Thomas","doi":"10.4324/9781315758398-20","DOIUrl":"https://doi.org/10.4324/9781315758398-20","url":null,"abstract":"This chapter identifies standard forms and bespoke forms of contract that provide a mechanism whereby the employer can order changes to the work to be done. It discusses the power to order varied work that is used frequently by employers who have often not had all their requirements sorted out at the time of the letting of the contract. It also distinguishes limitations upon the employer’s right to vary the work pursuant to a normal variation clause, such as the limitation in which the change ordered cannot alter the essential characteristic of the contract itself. This chapter covers the limitation in which the employer may not order the omission of work simply in order to instruct another contractor to do the same or almost the same work. It describes claims for sums due under the contract that are dealt with non-contentiously.","PeriodicalId":296429,"journal":{"name":"Wilmot-Smith on Construction Contracts","volume":"202 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":"131471749","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/9780198832805.003.0007
J. Bellamy, Joe-han Ho
This chapter outlines several types of clauses in construction contracts and contracts with professionals in which the contractor or the professional seeks to exclude or limit its liability for breach of contract and negligence. It includes clauses that exclude liability for defective performance and damages. It also considers clauses that appear in standard forms, such as the current edition of the FIDIC forms and the contracts issued by the Institution of Civil Engineers and the Institution of Mechanical Engineers. This chapter discusses the relative rarity of clauses that exclude all liability for defective performance but which can be common in high-value contracts when they are allied with clauses that require the contractor to repair and replace defective work. It looks at contractors that have the obligation to remedy defects, which can be limited to liquidated damages in respect of delay are not limited to cases where the cause if failure to remedy defects. It also considers the position of consumers who are subject to such clauses.
{"title":"Exclusion and Limitations of Liability","authors":"J. Bellamy, Joe-han Ho","doi":"10.1093/oso/9780198832805.003.0007","DOIUrl":"https://doi.org/10.1093/oso/9780198832805.003.0007","url":null,"abstract":"This chapter outlines several types of clauses in construction contracts and contracts with professionals in which the contractor or the professional seeks to exclude or limit its liability for breach of contract and negligence. It includes clauses that exclude liability for defective performance and damages. It also considers clauses that appear in standard forms, such as the current edition of the FIDIC forms and the contracts issued by the Institution of Civil Engineers and the Institution of Mechanical Engineers. This chapter discusses the relative rarity of clauses that exclude all liability for defective performance but which can be common in high-value contracts when they are allied with clauses that require the contractor to repair and replace defective work. It looks at contractors that have the obligation to remedy defects, which can be limited to liquidated damages in respect of delay are not limited to cases where the cause if failure to remedy defects. It also considers the position of consumers who are subject to such clauses.","PeriodicalId":296429,"journal":{"name":"Wilmot-Smith on Construction Contracts","volume":"27 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":"130052581","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/9780198832805.003.0004
Paul Darling QC, M. Shipley
This chapter explores assignment, which denotes the transfer of contractual rights from one party to another. It explains how there can be no assignment of the burden of a contract without the consent of the other contracting party. This chapter also looks at sub-letting, the Contracts (Rights of Third Parties) Act 1999 and collateral warranties.
{"title":"Assignment, Sub-Letting, the Contracts (Rights of Third Parties) Act 1999 and Collateral Warranties","authors":"Paul Darling QC, M. Shipley","doi":"10.1093/oso/9780198832805.003.0004","DOIUrl":"https://doi.org/10.1093/oso/9780198832805.003.0004","url":null,"abstract":"This chapter explores assignment, which denotes the transfer of contractual rights from one party to another. It explains how there can be no assignment of the burden of a contract without the consent of the other contracting party. This chapter also looks at sub-letting, the Contracts (Rights of Third Parties) Act 1999 and collateral warranties.","PeriodicalId":296429,"journal":{"name":"Wilmot-Smith on Construction Contracts","volume":"602 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":"116338268","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/9780198832805.003.0021
John Denis-Smith, Peter J. Hurst
This chapter deals with construction litigation as the litigation of claims by or against contractors, sub-contractors, and construction professionals that usually takes place in the Technology and Construction Court (TCC). It explains that the TCC is a branch of the Queen’s Bench Division of the High Court. It also mentions the TCC Guide that provides guidance as to the practices of the court and sets out information specific to proceedings in the TCC. This chapter cites rule 60.1(2) of the Civil Procedure Rules, which identifies a claim heard in the TCC as a ‘TCC claim’ that involves issues or questions that are technically complex. It looks at the non-exhaustive list of the categories of cases tried by the TCC that is set out in the Practice Direction.
{"title":"Litigation","authors":"John Denis-Smith, Peter J. Hurst","doi":"10.1093/oso/9780198832805.003.0021","DOIUrl":"https://doi.org/10.1093/oso/9780198832805.003.0021","url":null,"abstract":"This chapter deals with construction litigation as the litigation of claims by or against contractors, sub-contractors, and construction professionals that usually takes place in the Technology and Construction Court (TCC). It explains that the TCC is a branch of the Queen’s Bench Division of the High Court. It also mentions the TCC Guide that provides guidance as to the practices of the court and sets out information specific to proceedings in the TCC. This chapter cites rule 60.1(2) of the Civil Procedure Rules, which identifies a claim heard in the TCC as a ‘TCC claim’ that involves issues or questions that are technically complex. It looks at the non-exhaustive list of the categories of cases tried by the TCC that is set out in the Practice Direction.","PeriodicalId":296429,"journal":{"name":"Wilmot-Smith on Construction Contracts","volume":"50 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":"129682478","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/9780198832805.003.0003
Frederick Wilmot-Smith
This chapter deals with certain principles governing disputes where there is no contract between the parties. Often discussed using language of quantum meruit, the central principles are drawn from the law of unjust enrichment. Those principles are explained and applied to various common factual contexts.
{"title":"Extra-Contractual Claims: Unjust Enrichment","authors":"Frederick Wilmot-Smith","doi":"10.1093/oso/9780198832805.003.0003","DOIUrl":"https://doi.org/10.1093/oso/9780198832805.003.0003","url":null,"abstract":"This chapter deals with certain principles governing disputes where there is no contract between the parties. Often discussed using language of quantum meruit, the central principles are drawn from the law of unjust enrichment. Those principles are explained and applied to various common factual contexts.","PeriodicalId":296429,"journal":{"name":"Wilmot-Smith on Construction Contracts","volume":"6 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":"124516571","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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