The JCT Minor Works Building Contracts 2016

David Chappell

• Editore: Wiley-Blackwell
• Anno: 2017
• ISBN:
  9781119415305
• Edizione: 5
• Argomento: Derecho
• Categoria: Derecho urbanístico

The revised and updated edition of this classic book on the JCT Minor Works Building Contracts

The JCT Minor Works Building Contracts 2016 offers a concise overview of this agreement, which continues to be the most popular JCT contract, as it used on the sorts of small works that most architects and builders encounter routinely. Written in straightforward terms, the book is formatted in short chapters with accessible sub-headings, and the author avoids legal and pseudo-legal wording where possible. Some explanations from first principles are included where it is thought they would be helpful and occasionally, where the precise legal position is unclear, the author uses his significant experience to offer a view. Overall, the information is presented in a manner that it is easy to understand, use and reference.

The 2016 edition of the contract contains a great many changes from previous editions and these are all covered. For example, the book includes information about the substantially revised payment provisions, changes to those parts dealing with insurance, variation instructions, the CDM Regulations, Supplemental Provisions, definitions, and the Contractor's Designed Portion. In summary, this fifth edition has been comprehensively revised and updated to:

• Ensure the discussion is easy to comprehend and use by busy architects and contractors
• Include a Include a number of tables and flowcharts to assist in understanding the way the contract operates
• Include several letter templates that can be used in common situations
• Provide answers to the sorts of problems that commonly arise in the course of a building project

The new edition of this classic book on The JCT Minor Works Building Contracts will be an ideal tool for busy architects and contractors who need to find what to do when problems arise on projects using this contract.

1
Introduction

1.1 Some general things about contracts

The law is divided into parts

The construction industry is mostly concerned with the civil law. The civil law governs the way we should behave to our neighbour. We all have rights and duties to each other. They are sometimes set out in Acts of Parliament and sometimes they are derived from the judgments of the courts. Law which is found in the judgments of the courts is usually referred to as the ‘common law’. The common law is the system of law which has grown up over the centuries and which is still in the process of evolution. The courts themselves have an order of precedence so that lower courts must follow the decisions of the higher courts. In order to make this work properly, one would imagine that a central system of reporting the judgments of the courts would be in place. In fact, there are a multitude of different organisations producing law reports. Although most of the important judgments are picked up by one or other of these systems, some cases are not reported at all while others are reported by three or four different series of reports. It can be difficult to keep track of the courts’ decisions, but this is how the principles of law have been established.

There are also Acts of Parliament such as the Housing Grants, Construction and Regeneration Act 1996 (now amended by a later Act). Often the courts have to rule on the meaning of words in an act of Parliament. Some acts make doing things or failure to do other things a criminal offence for which persons may be fined or imprisoned. Some acts related to the construction industry fall into this category; especially acts dealing with health and safety.

Tort

In general ‘tort’ is a civil wrong for which the person suffering the wrong is entitled to take action through the courts for compensation. It is based on the duty which everyone owes to one another. There are many wrongs which most people will recognise and which will come under the headings of ‘tort’. Most people have heard of negligence, trespass, nuisance and defamation, but there are also some lesser known torts such as interference with contractual rights and breach of statutory duty.

Contract

In addition to legislative or common law rights and duties, two people may agree to have additional rights and duties to each other. For example, I may agree to give Mrs Z advice for a fee of £200. Mrs Z has the right to receive the advice, but a duty to pay me £200 for it. I have a right to the £200, but a duty to provide the advice. If there are agreed rights and duties on both sides, we call it a contract. Of course there may be all kinds of other things which also might have to be agreed, such as the subject matter of the advice, its timing and the date on which Mrs Z must pay me. Even seemingly simple contracts can become quite complicated. If documents have been signed, it is usually said that a contract has been ‘executed’. In ordinary language we might say that two people have ‘entered into’ a contract. Contracts are legally binding which means to say that usually once the contract is agreed, neither person can say: ‘I’ve changed my mind now’ without serious consequences.

Breach of contract

If a person does something which the contract does not allow or fails to do something which the contract requires, it is referred to as a ‘breach’ of contract.

For example, if I do not give the advice which I agreed to give or if the advice is given late or wrong, these are all breaches of contract. The person who is not in breach is usually referred to as the ‘injured party’ or the ‘innocent party’. The injured party is entitled to receive payment from the person in breach to make up for the breach. That is referred to as ‘damages’. The amount of money to be paid is normally calculated to put the injured party back in the same position as if the breach had not occurred. Sometimes that is easy, for example, If Mrs Z only pays me £150 for my advice, she could be ordered by a court to pay the additional £50 together with any other costs I had suffered as a result of her failure to pay the full £200 for the advice. Sometimes it is not possible to put someone back in the same position, because the problem is not the shortfall in money but, say, my failure to give proper advice at the right time. The court would try to do what it can to rectify the situation by hearing evidence about what my breach had cost Mrs Z. In such cases the courts have to look into other questions such as to what extent the costs resulting from my breach were reasonably foreseeable at the time we entered into the contract.

Repudiation

If the breach of contract is particularly serious, it may be what is called ‘repudiation’. That is a breach which is so serious that it shows that one of the persons does not intend to be bound by the contract any longer. Extreme examples would be if Mrs Z refused to pay anything for my advice or if I refused to give her any advice. In the construction industry, a contractor walking off site, never to return, half way through the project would be repudiation or if the employer told the contractor that he would not be paid any more money.

Faced with repudiation, the injured party has the choice of either accepting the repudiation and seeking damages through the courts, or saying that the contract is still in place and carrying on with it (called ‘affirmation’). The injured party is still entitled to seek damages even after affirmation. Obviously, there are many instances where it is just impossible to carry on as if nothing had happened; for example, if the architect stops work half way through preparing construction drawings.

Essentials of a contract

In order for there to be a contract there must be three things:

• Agreement;
• An intention to create legal relations;
• Something given by both persons.

Agreement is usually shown by one person making an offer and another person accepting it. If I offer to give some advice for £200 and Mrs Z accepts we are in agreement.

An intention to create legal relations is usually assumed in commercial dealings and anyone who says that there was no intention has the task of proving it. In a social context, people do not always intend to create legal relationships. If Thomas says to Emma that he will treat her to a meal in a nice restaurant that evening, That is not a contract. If Thomas breaks the arrangement Emma has no redress.

Something given by both persons is fairly straightforward. In the case of my advice I agree to give Mrs Z advice and she gives me £200 in return. In a construction contract, the contractor promises to construct the building and the employer promises to pay whatever is stated in the contract as the Contract Sum. In legal terms, the money or service given is usually referred to as ‘consideration’. This consideration can take forms other than the ones just described. For example, one person may agree to pay another, if that second person agrees to stop doing something or not to do something he or she was about to do. The important thing is that both persons contribute something; not necessarily of apparent equal value.

When talking about contracts, it is customary to refer to the ‘parties’ to the contract. That is convenient when reference to ‘persons’ would not be appropriate: for example, where one or both parties are corporate bodies such as local authorities, universities or limited companies.

Two types of contract

There are two types of contract:

• Simple contracts;
• Deeds or specialty contracts.

Most contracts are simple contracts. If it is desired to make a contract in the form of a deed, it is necessary to observe a particular procedure. Before 1989, all deeds had to be made by fixing a seal to the document. That could be in wa...