BSM575 Construction Law

Question: The following exercise is designed to encourage reflective evaluation of key contractual provisions of JCT SBC/Q 2011. Exercise on employer’s obligations under JCT 2016, Having regard to published commentaries and other explanatory material relating to JCT SBC/Q 2016 and the relevant common law, consider whether the provisions of JCT SBC/Q 2016 and the common law give adequate protection to a contractor where the employer is in breach of its obligations.

The obligation between a couple of parties that binds them into fulfilling certain terms and conditions favoring their situation is a contract, the definition is stated in the laws of ‘Obligation’. The contractual terms are based on basically two fundamental conditions, offer and an unconditional acceptance. The Implied, Express and terms incorporated will hold the many conditions necessary for binding a lawful contract[1].

The mutual acceptance of certain obligations by parties involved with accordance to law is a contact; the court rightfully watches over the use and lawfulness of such contractual terms and manages them. When any of the parties neglect a certain term, it would be called a breach. The contractual architect has the right to pass provisions needed (JCT 2016 suite in this case) when a breach is notice, if the architect’s remedies are unacceptable, the parties may reach out to court.

When single or multiple terms are broken in a contract by a party, then, it is referred to as a contractual breach. In case of a breach, it is expected of a party to firstly identify the very conditions that were broken. It is also well stated in the suit of JCT 2016 that the conditions so mentioned are on the employer explicitly and a contractor can heed law of a breach is seen. A breach will always have consequences; this may include awards and possible termination by the aggrieved party. The breach by itself won’t cause termination, but a court case will[2].

The remunerations for breach though are given only after the actions are done, giving the aggrieved party the power to terminate it and reach out for damage compensations. The agreement ends when all conditions are met and enacted with precision and care, making its performance satisfactory[3].  An agreement can be frustrated by common law the conditions are such that executing the terms is impossible. When frustrated, the court frees the parties involved from the contractual bounds and executes its termination.

Certain obligations like obligation for site possession (clause 2.4), obligation for site administration (appointment clause 3.5.1; Clause 3.25 for management regulation and construction) the instructional obligation (Clause 2.12.1), providing info and payment obligations in contracts are mentioned in duties of Employer’s.

In JCT suite of 2016, it was seen that acts are omitted, and then a considerable period of delay is given resulting from any breach in contractual terms. Such obligation delays are directly or indirectly related to force, instructional compliance, site possession deferments (clause 2.29.12), supervision and intervention of Government bodies in the agreement. It was also mentioned that the events that make relevance lesser now due to certain amendments such as the 4^th under the suite of JCT 98. This also includes those prevention, whether impediment or used as default.

It may be referred to as a breach if the employer urges the contract to make changes in contractual terms in order for him to take actions as he pleases, but the suit of JCT 2016 has allowed the changes to happen. In such a case, the contract can be given extra pay for making due with excess work and also an extension of deadline (Clause5.1.). The JCT 2016 has extension deal provider in its clause 2.28 that works with a relevant event mechanism that may allow the contractor with extra time. However, such a deal requires the contractor to prove the breach first.

In case a reason is judged as reasonable and practical, the architect can have the power to make decisions under the clause 2.28.1 as judged by another clause 2.28.3, and is given time for every event of relevance and omissions. The architect has to make rightful resolutions for the situations with the provided provisions. In case the architect/contract fails to make hay with his project, the court draws a conclusion and takes decisions with the said terms. A verbal contract is judged with exactly what the given parties might have stated, if written, the law court of law will read it thoroughly. The scope will be the final matter of decision making including the precision of the nature of contractual terms.

Compensation or a lawful remedy does not mean that the guilty party is bound by law to perform its actions more carefully; it states that the aggrieved is to be well compensated for all the damages inflicted on them. With the above analysis, it is clear that JCT suite 2016 provisions and common law are enough to manage the safety of the contractor when a term is broken by the employer.

Bibliography

Bannerman v White (1861) 10 CBNS 844

Photo Production v Securicor [1980] AC 87

Union Eagle Ltd v Golden Achievement Ltd [1997] AC 5