Emden's Building Contracts and Practice

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Description
The last revision of the treatise took place in 1982. In the intervening period of 32 years, lot of water has flown down all the bridges in the world. The building and construction industry has undergone seismic changes in die intervening period. Commercial interests and die ever-increasing competition have clouded the rationality of thinking. Difference in interpretation, even on plainly worded provisions of the contract, has led to multiplicity of litigation. Sometimes litigation is on such issues that would seem too trivial to an outsider, inasmuch as he would, on a reading of the contractual provision, say, and with some justification, that it really beats his comprehension that parties can resort to litigation even for such triviality. In fact, he would lose faith in the system as a whole. The ever-increasing litigation has led to different judgments emanating from different courts on the same issue. This has led to further confusion. There is no finality attached since lawyers, armed with judgments suiting their brief, seek to convince the judge about the merits of their case, whereas the opposite party lawyers have their own set of favourable judgments. The judge hearing the case is then asked to make a choice between divergent judgments. This leads to further confusion. We have seen regularly in India that die Supreme Court has constituted larger benches to resolve die dichotomy created by judgments of similar strength benches on the same set of facts but arriving at different conclusions. This, in the view of the Revising Editor, is not a healthy trend. Such situations do arise all over the world.However, as a sequel to above, it must be added that sometimes circumstances dictate the final judgment. What held good a few decades back need not necessarily hold good in this era as well. Therefore, looking at the practicality of the situation, courts have rendered judgments which are more in tune wide die modern times than stick to age-old and weadier-beaten views. In the considered view of the Revising Editor, law is evolving with time and judges render judgments keeping in view the prevalent situation so as to harmonize events with the trends that are manifesting at an ever-increasing pace. The duty of the judge is very onerous. Despite huge workload, he has to keep himself abreast of the latest law and trends that are emerging in various fields. Building and construction industry is a highly specialized field. There are numerous aspects which can only be appreciated by dose who are well versed with the nuances of the trade. The judge can obviously not have the same thought process as an engineer. The judge has to interpret the contract document as he sees it and as he feels it should be seen. The engineer working in the field sometimes has to tinker with the contract to make it more practical and easy and hasten the process of construction. When ultimately a dispute arises, the judge would obviously hold that the engineer has misinterpreted the contract and say so in the judgment, irrespective of the fact that both the parties were, at the relevant time, equally responsible for the tinkering.
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Contents
Table of Cases
1.Introduction
A. Construction contracts and the general law
B. Usual features of construction contracts
C. Different  methods of contracting
2. Formation of the Contract
A.  Introduction
B. Formation of the Contract
3. Construction of the Contract, Rescission and Rectification
A. Construction
B. Words and phrases occurring in building contracts
C. Rescission and rectification of the contract
4. Approval  and Certificates
A. Approval
B. Certificates
5. Price and Payment
A. Price for a completed contract
B. Price where contract is not completed
C. Payments on account
D. Payment on completion
E. Mode of payments
E. Appropriation of payments
F. Bonus and deduction
6. Variations, Additions and Omissions
A. Generally
B. What constitutes a variation for which the employer is liable to pay
C. Extra work – what is not
D. Valuation of variations
E. Extent of power to order variations
F. Extension of time when extras ordered
G. Orders in writing
7. Completion
A. Introduction
B. Entire and severable contracts
C. Fixed price and remeasurement contracts
8. Obligations of the Employer
A. Obligations of the employer
B. Maintenance and defect clauses
9. Obligations of the Contractor
A. To Complete the work
B. To Complete within the time specified
C. Implied condition as to workmanship
D. Obligations as to fitness and quality of materials
E. Obligations as to suitability of materials and design
F. Obligations on the sale of a house in the course of erection
G. Liability of house builder in tort
10. Architects, Engineers and Quantity Surveyors
A. Employment and authority
B. Duties
C. Liabilities to employers
D. Liabilities to contracts
E. Liabilities to third persons
F. Remuneration
G. Liabilities of local authorities
11. Forfeiture, Bankruptcy and Vesting of Materials
A. Forfeiture and bankruptcy
B. Vesting of materials
12. Sub-Contracts
A. Relations between sub-contractor and employer
B. Relations between architect and Sub-contractor
C. Relations between principal contractor and sub-contractor
D. Liability of principal contractor to employer for sub-contractor; s default
E. Prime cost and provisional sums
13. Guarantees and Sureties
A. Generally
B. When sureties required
C. Liability and discharge of the surety
14. Discharge of Contract
A. Discharge of contract
B. Discharge by repudiation
C. Discharge of contract by termination
15. Assignment, Novation and Frustration of Contract
A. Assignment
B. Assignment of rights
C. Assignment of liabilities
D. Novation
E. Frustration of contract
16. Breach of the Contract
A. Introduction
B. Types of breaches
C. Remedies for breach
17. Defects
A. Defect - what is
B. Defect liability period
C. Types of defect liability period clauses
D. Contractor's obligation within defect liability period
E. Contractor's responsibility to reconstruct
F. Obligation to serve notice of defects
G. No notice required if contractor aware of defects
H. Defects discovered after issue of complection certificate
I. Certificate improperly refused
J. Employer's right to recover for defective work
K. Losses other than cost of rectification - whether recoverable
L. Reduction in rates of defective work - whether permissible
M. Effect of delay in carrying out remedial works
N. Delay caused by concealed fraud
O. Delay caused by wrongful act
18. Adjudicators and Arbitrations
A. Adjudicators
B. Arbitrations
C. Contents of an arbitration proceedings
D. Stay on arbitration proceedings
E. Appointment of arbitrator
F. Conduct of arbitration
G. The award
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Author Details
Dr P C Markanda, F.I.E., LL.B., Senior Advocate, Member, Governing Body,
Indian Council of Arbitration Senior Vice-President (North),
Indian Institute of Technical Arbitrators
Naresh Markanda, B.E., LL.B., Senior Advocate
Rajesh Markanda, B.A. (Hons.), LL. B., Advocate