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'48'-806/
%8.8)5$61867748615(*4.7&04
Michael Sergeant on
varying variations
Principles of interpretation
The overriding principle is for the courts to objectively ascertain
the common intention of the parties by looking at the natural
meaning of the words in the contract. In the event of a
contradiction between two or more documents, they will consider
whether any of those documents were prepared specifically for
the project, the assumption being that this document would carry
more weight than, say, a standard printed specification. The same
principle applies if the parties have specifically negotiated and
agreed a particular element of the specification.
The documents respective functions will also be relevant. If
works are described differently on both a specification and a
programme, then the specification will probably be assumed to
reflect the parties intentions as its purpose is to describe the
works, as opposed to describing the sequence of the works.
325,23+
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Lack of instruction
The other main area of dispute when it comes to liability for
varied work, is whether or not it has been instructed. Construction
Conclusion
It goes without saying that the parties to a
contract should make sure the scope is as
clear as possible before starting work, so
as to avoid the type of problem identified
in this article. Equally, a contractor should
ensure that an instruction is issued every
time a change is necessary. Nevertheless,
such liability disputes concerning
variations are common. It is therefore
necessary to be aware of how a contract is
interpreted when there is apparent
ambiguity. And also the possibility of
recovering payment where no formal
instruction has been issued.
Michael Sergeant, Partner,
Holman Fenwick Willan
Michael.Sergeant@hfw.com
www.hfw.com
Michael Sergeant is the author of Construction Contract
Variations. ICES members are entitled to a 15%
discount on the publication. See p44 for details.