Fitness for purpose clauses impose a duty on a contractor to achieve a specific result. They have come under scrutiny as a result of a series of cases in the English courts which imposed significant damages onto a contractor, in complex factual scenarios [read more]. This post considers the FIDIC
Assignment involves the transfer of complicated rights and requires you to be incredibly careful. Once you know what can be assigned, you need to look out for the traps! Historically, the courts were troubled by cases involving whether or not the assignment was subject to consent (if you failed to
Assignment is a transfer of rights from one person to another. It is trite law that it is, in any event, impossible to assign ‘the contract’ as a whole, i.e. including both burden and benefit. The burden of a contract can never be assigned without the consent of the other
Concurrent delay is complex, controversial and rarely dealt with in contract conditions (even FIDIC leaves it to special conditions). But before you can begin to grasp the issues in a much-talked about recent case let’s review some basic principles: The prevention principle “The essence of the prevention principle is that
The classic smash and grab adjudication is where the employer fails to serve a payment or pay less notice against a contractors application for payment. It relies on s111(1) of the Construction Act 1996: Subject as follows, where a payment is provided for by a construction contract, the payer must
Once you have realised the truth behind the pesky myths surrounding liquidated damages, you will need to consider what level of liquidated damages should go into your contracts. There are a number of options: If you state £nil, then the client cannot recover any of its losses for late completion
One of my favourite activities in contract workshops when we are reviewing time, is to ask whether the Wembley damages of £120,000 per day are a penalty or fully recoverable by the client (notwithstanding arguments about whether the contractor is entitled to an extension of time). Myths Invariably some of
One of the contract traps for anyone providing construction works is a fitness for purpose obligation. This type of strict liability output obligation is rarely expressly included in a construction contract* (one of the arguments being that it is not covered by standard insurances). However… Fit for furpose Whenever I
To work out whether works, goods or services are ‘extra’ ie a change to the original scope, you need to know (1) the extent of the original scope as well as (2) how your contract defines changes/variations/extras – this can be pretty wide (eg JCT), narrow (MF/1), or non-existent (NEC).
Frankly there are some clauses in contracts which are little more than plastering over the cracks in poor relationships or in the pre-contract process. When reviewing your contract you should beware any of my ‘favourites’ (I use that term loosely): cancellation ‘we can terminate your contract if you don’t have