Is a contractual obligation to act in good faith enforceable, and is any good-faith duty implied?FreeGood-faith clauses are increasingly common but famously vague. The courts enforce them, while holding that good faith does not require a party to surrender a bargain the contract gives it...

Must an onerous standard condition be specifically flagged before it forms part of a contract of sale?PremiumA commercial contract is governed by caveat emptor, but a party cannot spring an onerous standard term on the other. An onerous condition that is not fairly drawn to attention may not be...

Where the specification requires work to the architect or engineer's satisfaction, is the power to reject work unfettered?PremiumWork to the architect or engineer's satisfaction sounds like an open power to reject. It is not: the standard is theirs, but they must act fairly, and cannot demand more than the...

Where an engineer's or quantity surveyor's estimate turns out to be wrong, can the employer obtain redress?FreeAn estimate that turns out wrong is not, on its own, a right to recompense. The employer must prove a warranty of accuracy or a want of reasonable skill and care, and then prove a loss.

When defects come to light after the final certificate is issued, does the contractor still have a liability?PremiumWhether a final certificate ends the contractor's liability turns on the form of contract. Some make it conclusive evidence within a short window; others leave the Limitation Act...

Who is responsible if a subcontractor's work is damaged by a person or persons unknown?PremiumDamage by persons unknown falls where the subcontract puts it. A non-standard protection clause can load the risk onto the subcontractor; the standard forms split it by cause and by the...

What does the obligation to proceed regularly and diligently require of a contractor under the standard forms?PremiumRegularly and diligently is the test many forms use before an employer can determine. It means going about the work so as to meet the contract, and it turns on planning, resources and...

Can a contractor or subcontractor bring an action for damages against an architect or engineer for negligence?PremiumA contractor hurt by unfair or negligent certification has a clear remedy against the employer. A direct negligence claim against the certifier is another matter, and the authorities do...

Where defective work departs from the specification but cannot practicably be taken down, what may the employer recover?FreeWhen defective work is left in place, the employer does not automatically recover the cost of putting it right. The measure is what is reasonable, tested against the loss actually suffered.

Does a retention of title clause survive a main contractor's insolvency to protect an unpaid supplier or subcontractor?PremiumA retention of title clause keeps ownership with the supplier until payment. On a project it runs into section 25 of the Sale of Goods Act, fixtures law and insolvency law, and its...

Does a signed time sheet that refers to standard conditions bring those conditions into an existing contract?PremiumA reference to standard conditions on a signed time sheet looks like it binds. It usually does not: a time sheet records performance, and is not the kind of document expected to carry...

Can suppliers rely on exclusion clauses in their terms of trading to avoid claims for defective or late goods?PremiumA supplier can write an exclusion or limitation clause into its terms, but under the Unfair Contract Terms Act 1977 it must prove the clause was reasonable. Some hold; those that remove...

What level of supervision must an architect provide on site?FreeWhen a contractor goes insolvent leaving defects, the employer looks to the architect. The duty is reasonable supervision, measured by whether it was enough for the job, and a missed...

Does "or other approved" after a named supplier let the contractor insist on a cheaper equivalent?PremiumA specification naming a supplier or other approved looks like a right to substitute a cheaper equivalent. It is not: the words create an absolute obligation to supply the named product...

If a subcontractor is falling behind through its own inefficiency, can the contractor bring extra labour onto site to supplement it?PremiumA contractor frustrated by a slow subcontractor may want to put extra labour on the work. Without an express contractual right, doing so is a breach; the safer routes are an express power...

May a court order the parties to a dispute to engage in alternative dispute resolution?PremiumMediation is consensual, so the courts long held they could not compel it. That has changed: a court may now order or stay for ADR within limits, a binding ADR clause will be enforced, and...

Do those involved in constructing a dwelling, without a contractual link, have liability to subsequent owners for unfitness for habitation?PremiumA subsequent owner with no contract is not without a remedy. The Defective Premises Act 1972 imposes a duty to build so the dwelling is fit for habitation, owed to first and later owners...

Can the without prejudice protection fail, and does it apply to adjudication?PremiumA without prejudice offer is normally privileged and kept out of evidence. The protection is strong and usually continues, but it can give way for defined purposes, and its reach into...

Where a contractor takes over part-completed work, is it responsible for correcting work done wrongly by the contractor it replaced?PremiumA contractor brought in to finish off work started by another firm is not, without more, answerable for that earlier work. The scope must be made explicit; loose words are read narrowly.

Will an email or fax satisfy a contractual requirement for notice in writing, by post or by actual delivery?PremiumWhether an email or fax will do turns on the notice clause. Where it requires writing or actual delivery in general terms, an email or fax will usually count; where it prescribes an...

Must an engineer engaged for the permanent works warn of danger arising from the contractor's temporary works?PremiumAn engineer for the permanent works may see the temporary works as the contractor's concern. Where those works threaten the permanent works, the engineer must act to obviate the danger.

What is a repudiatory breach?PremiumEvery breach gives a right to damages. Only a repudiatory breach, serious enough to deprive the other party of substantially the whole benefit, also lets the innocent party end the contract.

What are the legal responsibilities of a project manager?FreeThe project manager role is less defined than the architect or quantity surveyor. The duties turn on the appointment, but the courts read in real obligations, from securing insurance to...

Are project managers under the NEC contract required to act impartially, or do they act as agents for the employer?PremiumAn architect must certify impartially. Costain v Bechtel held that the same duty binds the project manager under the NEC form when issuing payment certificates, whatever its interest in...

Can a quantity surveyor employed by the employer be liable to a contractor for an error in the bill of quantities?PremiumAn error in the bill may fall on the contractor or be corrected, depending on the form. As against the quantity surveyor who prepared it, the old authority gives the contractor no claim.

Is an architect who recommends an incompetent contractor liable to the employer for the resulting extra cost?PremiumAn architect who recommends a contractor, then sees the work go wrong and the contractor fail, may be the employer's only route to recovery. Vouching for competence without a basis...