One of the aims of a contract is to “take account of eventualities that can be foreseen, and to ensure that the intentions of the parties are expressed clearly, with certainty, and that the allocation of risks is as intended.”
In the construction industry, over 97% of projects use a standard form of contract and the JCT Minor Works Contract is the most commonly used (according to the RICS Survey of Contracts In Use in 2010).
But what is the right length for these contracts if the parties are to read, understand and use them successfully?
Long = Comprehensive
Here are some perspectives on the more commonly used longer forms:
JCT Standard Building Contract 2011 – at over 100 pages using 55,000 words and with numerous options, its lengthy provisions are “not always easy to grasp” and this contract is not easy to use.
Engineering and Construction Contract NEC3 – this uses simpler language and is easier to read (and a mere16,000). However, some judges and clients find the language is not user-friendly and you need to choose from a bewildering array of main contracts, optional and secondary clauses. The users also need to comprehensively complete the Works Information and Contract Data for the contract to make sense.
JCT Major Project Form 2011 –its relative brevity (only 14,000 words), straightforward language and clear procedures make it “immediately attractive”. Only experienced clients can use it though, as the brief conditions and procedures “depend on a high level of understanding and involvement.”
Short = Comprehensible
What about the popular shorter standard forms?
ACA Project Partnering Contract PPC2000 – this uses plain language, but unfamiliar terminology. It requires experienced contract administration and project management. It weighs in at 33,00 words.
JCT Minor Works 2011 – this relatively brief contract (16,000 words) is easy to read and understand. The downside, as with all short form contracts is that “what is expressly stated might not be the entire picture. Terms might be implied by common law”. As it does not set out all eventualities, it needs to be “used with thought and treated with care.”
JCT Building Contracts for Home Owners – “written in a refreshing style commendably free from jargon and legalistic language” these are the only standard forms to have been awarded the Crystal Mark by the Plain English Campaign. These contracts are a “significant improvement over oral arrangements or poorly worded letters.” In other words, better than nothing, but not very good! They are short at just over 5,000 words.
So How Long is Too Long?
As you can see, there is a choice to be made.
You can either use a long form contract which is drafted to be comprehensive i.e. cover all eventualities. The disadvantage is that it may be impenetrable for clients, so is neither read nor used in practice.
Or you can choose a short form contract which is easy to read. But it may leave your clients open to not really knowing their full duties or liabilities. Such contracts need to be treated with caution!
This analysis reflects my views as well as comments in “Which Contract?” by Clamp, Cox, Stanley and Udom (2012, 5th edition, RIBA Publishing). Available from BLISS Books. The initial quote is from chapter 14 of that book.