Tag: managing risk

Restricting your freedom to contract

Although you can agree pretty much anything you like under freedom to contract, there are some restrictions on that freedom: legislation: laws can mandate minimum requirements, outlaw certain terms and allow others only within specific parameters contract: a contract can restrict the parties’ rights in the future on a specific

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Limits on the Contractor’s Liability under MF/1

MF/1 is a balanced contract providing plenty of opportunities for the purchaser to check the performance of the works – through three series of tests – before the contractor is released from liability.  It also clearly sets out limits on the contractor’s obligations. Limits on scope If you are acting

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Limited guarantees

The Scottish appeal court has recently agreed with something I have been asserting for years, that a collateral warranty is impliedly limited by the scope and terms of the underlying agreement. What is a warranty? A warranty is a simple document designed to create contractual links between the provider of

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Copying Clauses on Concurrent Delay

If you understand the principles on concurrent delay then you might also be aware of the debate whether the contract should define concurrent delay and pass its risk to the contractor. In North Midland v Cyden, the parties amended the standard JCT contract to require: the contractor to make reasonable

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The Dotted Line: It’s a trap

According to a Brief History of Cunning (podcast), Machiavelli said: one must be a fox to recognise traps and a lion to recognise wolves. When I review contracts, I focus on traps in contracts. This newsletter aims to help you spot and avoid them too. Read the full edition here » Just because you

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Can the contractor risk being late?

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

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Delay Damages: £1 or £1m per day?

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

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Delay Damages: Busting the Myths

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

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Money-Back Guarantee

This is the best contract I have ever received if at any time you are not happy with my services, we can walk away and I will not charge you. It said everything I needed to hear succinctly and clearly. Your contract needs to state the scope of your services,

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Lessons from Failure: Check the Technical Data

I would like you to (1) learn from the failures of others (the quickest, cheapest and least painful approach) and (2) embrace the idea that failure is not optional – it is your best friend. Lesson: check the technical data In November 1999, NASA lost a $125m satellite, the Mars

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