Liquidated Damages and Extensions of Time

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ISBN: 9780632042135 | 0632042133
Cover: Hardcover
Copyright: 6/1/1998

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Liquidated damages and extensions of time frequently form the basis of contract claims made under standard building and civil-engineering contracts. This book, which was very well received in its first edition, covers legal principles and examines in depth the relevant clauses of standard construction contracts. This second edition includes a number of new contracts (including the new Engineering Contract) as well as recent court decisions.

Preface

vii

(1)

References

viii

(1)

Acknowledgements

PART ONE -- GENERAL

(214)

1 Introduction

(11)

1.1 Breaches of contract

(1)

1.2 Liquidated damages and penalties

(3)

1.3 Genuine pre-estimate of loss

(1)

1.4 Agreed nature of damages

(1)

1.5 Exhaustive remedy

(1)

1.6 Extensions of time

(1)

1.7 Prevention

(1)

1.8 Relationship to claims

(1)

1.9 The Multiplex case

(1)

1.10 Additional time for the employer

(1)

1.11 Liquidated damages other than for delay

(1)

2 Time in contracts

(17)

2.1 Problems with terminology

(1)

2.2 Conditions and warranties

(3)

2.3 Termination

(3)

2.4 Time for performance

(2)

2.5 Time of the essence

(5)

2.6 Notice making time of the essence

(1)

2.7 Time at large

(1)

2.8 Reasonable time

(1)

2.9 Fixing time by reference to express terms

(1)

3 Damages for late completion

(21)

3.1 Liquidated and general damages distinguished

(1)

3.2 Principles of general damages

(6)

3.3 Alternative remedies

(4)

3.4 Can general damages exceed liquidated damages?

(1)

3.5 Under-liquidation of damages

(3)

3.6 Double damages

(3)

3.7 Liability for damages in tort

(3)

4 Liquidated damages and penalties

(29)

4.1 Penalties

(1)

4.2 Liquidated damages

(3)

4.3 Liquidated damages and penalties distinguished

(9)

4.4 Pre-estimates of damage

(8)

4.5 Holding costs of accumulated expenditure

(1)

4.6 Benefits to the employer

(1)

4.7 Bonus clauses

(3)

4.8 Site occupation charges

(3)

5 Prevention

(12)

5.1 Principle of prevention

(2)

5.2 Need for extension of time provisions

(3)

5.3 Defining an act of prevention

(2)

5.4 Prevention after the completion date

(1)

5.5 The Balfour Beatty v. Chestermount case

(3)

5.6 Effect of late variations on unliquidated damages

(1)

6 Legal construction of liquidated damages clauses

(12)

6.1 Rules of construction

(2)

6.2 Contra proferentem rule

(2)

6.3 Restrictions on implied terms

(1)

6.4 'Catch all' phrases

(3)

6.5 Inconsistencies in drafting

101

(2)

6.6 The admissibility of evidence

103

(2)

7 Effects of determination

105

(5)

7.1 The question of continuing responsibility

105

(1)

7.2 British Glanzstoff

105

(1)

7.3 Contractual provisions

106

(1)

7.4 Novations

107

(1)

7.5 Summary on liquidated damages

108

(1)

7.6 Determination and limitation on liability

108

(2)

8 Problems with sectional completion

110

(5)

8.1 Discovering the parties' intentions

110

(1)

8.2 Proportioning down clauses

110

(1)

8.3 Provisions for sectional completion

111

(1)

8.4 Requirements not fully specified

112

(3)

9 Application to sub-contractors

115

(9)

9.1 Effect of 'stepping-down' provisions

115

(1)

9.2 Can there be a genuine pre-estimate of loss?

116

(1)

9.3 Commercial considerations

117

(1)

9.4 Nominated sub-contracts

118

(6)

10 Recovery of liquidated damages

124

(17)

10.1 When do liquidated damages become payable?

124

(3)

10.2 Meaning of completion

127

(5)

10.3 Certificates and conditions precedent

132

(4)

10.4 Methods of recovery

136

(2)

10.5 Time limits on recovery

138

(1)

10.6 Interest on repayment

139

(2)

11 Defences/challenges to liquidated damages

141

(21)

11.1 Benefits of precedents

141

(1)

11.2 Extension of time due

142

(2)

11.3 Completion achieved earlier than certified

144

(2)

11.4 Certificates not valid

146

(7)

11.5 Conditions precedent not observed

153

(1)

11.6 No date for commencement

153

(1)

11.7 Prevention

154

(1)

11.8 Penalties

155

(1)

11.9 Provisions void for uncertainty

156

(1)

11.10 Waiver/estoppel

156

(2)

11.11 Unfair Contract Terms Act 1977

158

(4)

12 Extensions of time

162

(18)

12.1 Purposes of extension provisions

162

(1)

12.2 Notices, applications and assessments

163

(5)

12.3 Time for granting extensions

168

(3)

12.4 Application to claims

171

(2)

12.5 Proof of entitlement

173

(6)

12.6 The liability of certifiers

179

(1)

13 Relevant events

180

(18)

13.1 Force majeure

180

(2)

13.2 Adverse weather

182

(2)

13.3 Civil commotion, strikes etc.

184

(2)

13.4 Damage to the works

186

(1)

13.5 Sub-contractors

187

(2)

13.6 Non-availability of resources

189

(1)

13.7 Statutory undertakers' works

189

(2)

13.8 Other special circumstances

191

(1)

13.9 Statutory powers

191

(1)

13.10 Possession and access

192

(1)

13.11 Late issue of drawings and instructions

193

(3)

13.12 Variations and extra works

196

(1)

13.13 Compliance with instructions

196

(1)

13.14 Specified breaches

197

(1)

14 Concurrent and culpable delays

198

(9)

14.1 Meaning of culpable delay

198

(1)

14.2 Meaning of concurrent delay

198

(1)

14.3 Causation

199

(1)

14.4 Application to construction contracts

200

(2)

14.5 Alternative approaches to concurrent delays

202

(3)

14.6 Extensions when in culpable delay

205

(2)

15 Programmes and method statements

207

(10)

15.1 Status of contractor's programmes

207

(1)

15.2 Programmes and contractor's rights

207

(3)

15.3 Shortened programmes

210

(1)

15.4 Method statements

211

(6)

PART TWO -- STANDARD FORMS OF CONTRACT FOR BUILDING AND CIVIL ENGINEERING WORKS AND PROCESS AND PLANT CONTRACTS

217

(107)

16 Building forms

217

(58)

16.1 Standard Form of Building Contract -- JCT 80

218

(14)

16.2 JCT Intermediate Form of Building Contract -- IFC 84

232

(5)

16.3 JCT Agreement for Minor Building Works -- 1980

237

(2)

16.4 Standard Form of Building Contract with Contractor's Design -- JCT 81

239

(5)

16.5 JCT Fixed Fee Form of Prime Cost Contract

244

(2)

16.6 JCT Management Contract -- 1987 Edition

246

(2)

16.7 JCT Works Contract Conditions 1987

248

(5)

16.8 JCT Standard Form of Measured Term Contract -- 1989

253

(2)

16.9 GC/Works/1: Edition 3 -- The Government General Conditions of Contract for Building and Civil Engineering

255

(4)

16.10 ACA Form of Building Agreement BPF 1984 Edition

259

(4)

16.11 JCT Nominated Sub-Contract NSC/C

263

(6)

16.12 BEC/FASS/CASEC Domestic Sub-contract DOM/1

269

(6)

17 Civil Engineering Forms

275

(33)

17.1 ICE Conditions of Contract -- 5th Edition

276

(6)

17.2 ICE Conditions of Contract -- 6th Edition

282

(8)

17.3 ICE Conditions of Contract for Minor Works -- 2nd Edition

290

(3)

17.4 FIDIC Conditions of Contract for Works of Civil Engineering Construction -- 4th Edition

293

(4)

17.5 The New Engineering Contract (NEC) -- 2nd Edition

297

(8)

17.6 FCEC Form of Sub-contract (the Blue Form)

305

(3)

18 Process and Plant Forms

308

(16)

18.1 MF/1 -- General Conditions of Contract

309

(10)

18.2 IChemE Red Book 1995 Edition

319

(5)

Table of Cases

324

(8)

Index

332

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Liquidated Damages and Extensions of Time

Summary

Table of Contents

Supplemental Materials