Category: Strategy

Your Contract Strategy Should Be Deliberate

Contract strategy is just a fancy way of saying choosing the type of contract you want. There are various issues to take into account: your procurement strategy: traditional, design and build, prime cost, management contracting your payment strategy: lump sum, remeasurement, target price your risk strategy: pro-active or reactive; transfer,

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Using Letters of Intent

According to most professional bodies, you should ‘just say no’ when offered a letter of intent. However, the court recently said that it was not negligent to start a project under a letter of intent. So what advice is there on using letters of intent? One case (Cunningham v Collett)

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Use LADs to Compensate (not Deter)

In order to avoid technical defences to an agreed level of damages (liquidated damages), you should concentrate on making sure the purpose of the clause is made really clear. Compensation In Lorsdvale v Zambia, the question whether the amount was a penalty or a genuine pre-estimate was based on: “whether

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Failure is Your New Best Friend

Contracts should help you do business. But we have to be realistic. Change happens. Risk events occur. Humans are fallible. Most contracts do not anticipate ‘failure’ in stark terms. However, not every project will be a success, especially those which are on the edges of what is currently possible. Is

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Contracts for Success: Seek Win-Win

One of the issues I have grappled with is whether a contract can result in project success. Can your terms encourage the project team to meet its objectives (the carrot approach) or do they merely provide remedies in the event that those objectives are not met (the stick approach)? If

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Negotiate Your Contract

In deciding whether a clause is unfair, a tribunal will consider whether your contract partner had a choice to accept or avoid a particular term. Many years ago, a highly influential judge, Lord Denning, said: None of you nowadays will remember the trouble we had – when I was called

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Using A Net Contribution Clause

Any member of a project team can rely on the Civil Liability (Contribution) Act 1978 to share the losses with anyone else on the project team who is responsible for the same damage [read more]. However, it has become common in the UK construction industry to use a specific clause

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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 Contract with a Handshake?

As a contract drafting lawyer, you might think that asking you to consider ‘should you bother with contracts?’ is a little like asking the proverbial turkey to vote for Thanksgiving or Christmas! Construction contracts in the UK have been around for about 150 years, with published standard forms a product

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How Long is Too Long?

It has been said (although not by me) that one aims for contracts 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. But what is the

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