13. Rights and Remedies

  1. Roger Knowles FRICS, FCIArb, FQSi, Barrister

Published Online: 14 FEB 2012

DOI: 10.1002/9781118257050.ch13

200 Contractual Problems and their Solutions, Third Edition

200 Contractual Problems and their Solutions, Third Edition

How to Cite

Knowles, R. (2012) Rights and Remedies, in 200 Contractual Problems and their Solutions, Third Edition, Wiley-Blackwell, Oxford, UK. doi: 10.1002/9781118257050.ch13

Publication History

  1. Published Online: 14 FEB 2012
  2. Published Print: 15 FEB 2012

ISBN Information

Print ISBN: 9780470658314

Online ISBN: 9781118257050

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Keywords:

  • contracts, parties acting in good faith;
  • rights and remedies;
  • legislation, protecting consumers;
  • consumer protection legislation;
  • legislation, not applicable to commercial contracts;
  • ‘satisfaction’ or ‘reasonable satisfaction’;
  • level of supervision, of architects on site;
  • courts, subjective judgment

Summary

This chapter contains sections titled:

  • Where a contract requires the parties to act in good faith, is it enforceable?

  • What obligation does a contractor, subcontractor or supplier have to draw attention to onerous conditions in his conditions of sale?

  • Is there an unfettered power to reject work given to an architect/engineer, where the specification calls for the work to be carried out to the architect's/engineer's satisfaction?

  • If an estimate prepared by an engineer or quantity surveyor proves to be incorrect, can the employer claim recompense?

  • When defects come to light after the architect/engineer has issued the final certificate, does the contractor/subcontractor still have a liability, or can he argue that once the certificate has been issued the employer loses his rights?

  • Who is responsible if damage is caused to a subcontractor's work by a person or persons unknown, the subcontractor, contractor or employer?

  • How is the term ‘regularly and diligently’, as used in the standard forms of contract, to be defined?

  • Are there any circumstances under which a contractor/subcontractor could bring an action for the recovery of damages against an architect/engineer for negligence?

  • What is a contractor's liability to the employer for failing to follow the specification, where it is impractical to take down the offending work?

  • Do retention of title clauses still protect a supplier or subcontractor where a main contractor becomes insolvent, or have there been cases which throw doubt on their effectiveness?

  • Can the signing of time sheets which make reference to standard conditions of contract form the basis of a contract?

  • Can suppliers rely upon exclusion clauses in their terms of trading to avoid claims for supplying defective goods, or claims based on late supply?

  • What level of supervision must an architect provide on site?

  • Where a specification includes a named supplier ‘or other approved’, can the architect/engineer refuse without good reason to approve an alternative supplier proposed by the contractor/subcontractor?

  • If a subcontractor is falling behind programme and in danger of completing late because of his own inefficiencies, can the contractor bring other labour onto the site to supplement the subcontractor's efforts, to ensure completion on time?

  • Can parties to a dispute be forced to submit the matter to mediation?

  • Do contractors, subcontractors, architects or engineers who have been involved in the construction of a dwelling house, in the absence of any contractual link, have any legal liability to subsequent owners if, due to faulty design or construction, the dwelling is not fit for habitation?

  • Parties to a dispute often make offers to settle which are stated to be ‘Without Prejudice’. The intention of an offer being ‘Without Prejudice’ is that, in subsequent litigation, evidence of the offer cannot be used to support the offeree's case, as the offer was made ‘Without Prejudice’ and as such, is privileged. Are there any circumstances where the ‘Without Prejudice’ safety net could fail and does it apply to other dispute resolution processes, such as statutory adjudication?

  • Where a contractor takes over work which is part completed, does it have any responsibility for correcting work which was incorrectly undertaken by the contractor it replaced?

  • Where a contract requires a notification to be in writing, sent by post, or actual delivery, will an email or fax suffice?

  • Where an engineer is employed by the employer, is he legally obliged to warn of dangers associated with the temporary works?

  • What is a repudiatory breach?

  • What are the legal responsibilities of a project manager?

  • Are project managers, when performing duties relating to the Engineering and Construction Contract (NEC 3), required to act impartially, or do they merely act as agents for the employer?

  • Can a quantity surveyor who is employed by the employer be liable for any losses incurred by a contractor who successfully tenders for a project, where the bill of quantities contain an error which results in the tender being lower that it would have been if there had been no error?

  • Can an architect who recommends a contractor to undertake a project be liable to the employer, who incurs additional cost because the contractor is incompetent to undertake the work?