Can a contractor or subcontractor be contractually required to carry out a variation after practical completion?
Employers often want the contractor to stay on and do extra work during the defects period. Whether the architect or engineer can require it turns on whether the contract keeps the variations power alive after practical completion.
As a rule no: once practical completion has been achieved a contractor is under no obligation to carry out varied work instructed by the architect or engineer, unless the contract expressly provides for variations to be issued after practical completion
As a rule, no. Once practical completion has been achieved, a contractor is under no obligation to carry out varied work instructed by the architect or engineer, because the variations power is spent at practical completion. The only exception is where the contract expressly provides for variations to be issued after practical completion. In SJ and MM Price Ltd v Milner the position was that, once the rest of the work has reached practical completion, an instruction for varied work, like one for original contract work, requires express provision or the contractor's willingness. A contractor asked to do post-completion work is free to agree terms for it or to refuse.
| General position | No obligation to carry out variations after practical completion |
| Why | The variations power is spent at practical completion |
| Exception | An express contractual power to instruct variations after practical completion |
| Price v Milner | No post-completion variation absent express provision, unless the contractor is willing |
| The contractor | Free to agree terms for post-completion work, or to decline |
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