Month: May 2013

Ignorance is No Defence

Your knowledge of the law is irrelevant to your liability. Given that you have to comply (whatever your contract or conscience says), why do most contracts require the parties to comply with statutory requirements? Clarity Although ‘ignorance is no defence’, contracts are tools to help the parties to understand their

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Do You Read Your Contracts?

The first stage for reviewing a contract is to read it. Best practice, as set out in Which Contract? suggests that you ‘study its contents and understand its implications’. Some of you do not read your contracts: you let them gather dust. If you don’t read your contract, it goes

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What Does ‘Subject to Contract’ Mean?

Recently I came across a contact who had a standard footer on her emails, not about saving the environment but that ‘Any offers made in an email or attachments are subject to contract.’ It’s not just the lawyers who throw caution to the wind and bandy about ‘subject to contract’. 

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Effectively Using ‘Subject to Contract’

If you have spent time and effort carefully crafting an agreement, then when should you mark them ‘subject to contract’? Never? In my experience this phrase does more harm than good. If you are still discussing or negotiating your contract, then it may prevent a contract occuring prematurely. But it

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Is NEC Really Unique in Being Simply Drafted?

During 2013 Annual NEC User Group conference, I had a lively twitter debate with Chris Hallam (@ChrisHallamLaw), a Partner at CMS, on the use of NEC3 (the New Engineering Contract, Engineering and Construction Contract, Third edition). He pointed me to his article: NEC as Easy as 1-2-3. From reading between

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When is An Offer Not an Offer?

When is an offer not an offer but the award of a contract? When its a snake in the grass? The TCC recently has to grapple with the rights of the parties under a framework agreement, in unusual circumstances. What is a framework agreement? A framework agreement normally allows an

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Can You Change a Bonded Contract?

Can you amend a bonded (or guaranteed) contract without the beneficiary losing its rights to claim under the associated bond? This was the decision of the Court of Appeal in Hackney Empire v Aviva which has received more coverage than most bond cases. Is it because the case decided a

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Review Your Bond: Does it Survive Changes?

With any bond and all guarantees, it is imperative that the document continues to provide a form of surety throughout the life of a project. That means the document has to continue to bite even where there are changes to the project: whether that is changes to the scope, the

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Review Your Liability for Breach

A few years ago, a developer (Gubbins) appointed an engineering firm (Grimes) for a housing development. Grimes agreed to design a road and the drainage, and obtain the relevant s38 agreement (for adoption of the road by the local authority). That work had to be completed by March 2007. It

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