Category: Review

Contracts: which meaning prevails?

What does your contract mean? Perhaps not what you intended… Words vs Purpose The courts interpret contracts based on examining each word (the literal approach focusing on language) and business common sense (the ‘purposive’ approach focusing on practical implications). Although language should be the surest guide as to what the

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Review your Contract: recognise traps

According to a Brief History of Cunning (podcast), Machiavelli said: one must be a fox to recognise traps and a lion to recognise wolves This struck a chord because as a contracts expert, one of my services is to review contracts on behalf of contractor and specialist subcontractors to identify

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Review your scope: is it included?

To work out whether works, goods or services are ‘extra’ ie a change to the original scope, you need to know the original scope of the works as well as how your contract defines changes/variations/extras. However, the definition of a change varies from pretty wide (eg JCT), to narrow (MF/1)

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What can you change?

Most contracts will include some form of mechanism or procedure allowing the parties to change the goods, works and services being provided. There are a number of myths about variation clauses because a simple express clause such as this in NEC4 “The Project Manager may give an instruction which changes

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Reviewing the role of retention

5 years ago I wrote a post about whether you could trust an employer with your retention. In the light of Carillion’s pending/actual insolvency* (delete according to when you read this), I wanted to clarify the legal position on retention. For simplicity the employer refers to the paying party –

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Review your letter of intent: what’s missing?

How bad are letters of intent really? A real eye-opener activity, during my workshops, is to compare what is in a ‘standard’ letter of intent with what you’d expect to see in a proper construction contract. Letters of intent should be contracts, as the alternative is even worse – an

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Avoid ambiguities at all costs

The UK Supreme Court have recently revisited the thorny issue of fitness for purpose (and millions of Euros depend on the answer). How can you avoid the embarrassment of publication riches afforded by a Supreme Court decision, as well as months in court (the decision was given 8 years after

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Storm of showstoppers

Showstoppers are A clause or term that could bring negotiations or your contract to a juddering halt Over the past 9 months, my newsletters [sign up] have proposed a series of tips, tools and techniques to spot and solve showstoppers. What should you do? Do you work with or for

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Review your contract: indemnities

An indemnity is a promise to pay A’s losses if a trigger event occurs [read more]. But how do they pass risk on construction projects? Managing risk If someone else fails to spot your defective work, does it reduce the amount of your indemnity? No. Greenwich Millennium v Essex Services

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Apply common sense

When a court or tribunal interprets your carefully crafted contract, it doesn’t ask your opinion. It reviews the written terms to analyse ‘what a reasonable person having all the [parties’ then] background knowledge… would have understood… the language in the contract to mean‘. As they are not mystics, the courts

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