Construction contracts

Abstract

It has been said that factory production is a line of work going through men, whereas site production is a line of men going through work. This difference arises from the need to install the work on an individual and perhaps difficult site, with all the problems of co-ordination and the added ingredient of the weather. The work is usually also individual in content, even if it repeats the character of other buildings. Consequently, construction claims and disputes are a fact oflife on large projects and it is perhaps surprising that more does not go wrong. They include claims for delay, negligence, breach of contract, refusal to pay, and other causes of action. Construction litigation is characterised by the large number of parties involved, and the large number of documents generated during the project. The combination of numerous parties and documents renders litigation of these cases very time consuming and costly, not only in terms of the amounts paid in settlement but also in terms of legal and expert fees and the effects of uncertainty and contingent liability on the ability to carry on business. Despite the variety and complexity of construction claims and disputes, the majority are resolved according to the provisions on locatio operis and those found under the title 'Of Contracts' in the Civil Code. Others are resolved through the application of those legal principles which have been developed by our Courts during the last century, which principles are by no means coherent, and thus do not offer an element of certainty to those submining the claims or to the recipients. These are not totally adequate in solving the sophisticated problems which may arise in modem constmction contracts since, although contracts usually seek to regulate the causes of dispute and the methods of achieving agreement, sometimes a matter may be left at risk while not everything can be foreseen every time. The aim of this theses is to examine the provisions on the contract of works together with the opinions put forward in doctrine and the dicta established in our jurisprudence in order toindicate, to some extent, the possible outcome of situations that often arise, and possible reform.