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Centre for Complex Contracts

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In Conversation with…
Dr Salwa Fawzy
Time ‘at Large’
A Comparative Analysis between the
Common Law
and the Egyptian Civil Law

By

Dr. Salwa Fawzy


 Time ‘at Large’ under the Common Law
 Relevant legal principles under the Civil Law
 Conclusion

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 It is a term describing the situation where no time
for completion is fixed or the time set for
completion no longer applies.
 Liquidated Damages represent a predetermined
sum which becomes payable by a party to a
contract if certain specified breaches occur
 Liquidated Damages are the genuine pre-estimate
of the loss or damage

(Philips Hong Kong Ltd v Attorney General of Hong Kong (1993) 61


BLR 41)
 Inorder for the liquidated damages to be payable,
there must be a definite date fixed by the contract
from which the damages can run.
 The causes of delay could be the responsibility of
the employer, the contractor or neither of them,
i.e. are neutral events
 Extension of time provisions include the parties’
agreement under a construction contract as to
how the risk of delay should be apportioned
between them
 The time for completion can only be extended
where the contract permits, and strictly in
accordance with the contract provisions
 If there is no express provision to extend the time
for completion for a delay caused by a neutral
event, the contractor takes the risk of that delay

Percy Bilton Ltd v Greater London Council (1982) 20 BLR 1


 However, the situation is different if the cause of
delay is caused by the employer
 The contractor’s obligation to complete the works
within the time for completion is lost, if the works
are delayed by a reason for which the employer is
responsible
 In such situation, the previously fixed time for
completion no longer applies and time is said to be ‘at
large’
 This is based on the ‘prevention principle’

Dodd v Churton (1897) 1 QB 562


Barque Quilpe Ltd v Brown [1904] 2 K.B.264 at 274
Percy Bilton Ltd v Greater London Council (1982) 20 BLR 1
 The cause of delay by the employer is referred to
as an ‘act of prevention’
 Acts of prevention by the employer could be:
 a breach of contract
 a perfectly legitimate action

Dodd v Churton (1897) 1 QB 562


Holme v Guppy (1838) 3 M & W 387
Roberts v Bury Commissioners (1870) LR 5 CP 310
Perini Pacific v Greater Vancouver Sewerage and Drainage District
(1966) 57 DLR (2d) 307
 Thus, an act of prevention by the employer would
release the contractor from its obligation to
complete the works within a fixed construction time
 absent an effective extension of time clause which
provides otherwise

Dodd v Churton (1897) 1 QB 562


 The time set for completion no longer applies
 The contractor’s obligation becomes to complete
within a reasonable time
 The employer loses his entitlement to deduct
liquidated damages for delay because:
 the employer is not entitled to rely on a liquidated
damages clause where the reason for late
completion was an act of prevention by the
employer, and
 there is no date from which the liquidated damages
can be calculated

Peak Construction (Liverpool) Ltd v McKinney Foundations Ltd (1970) 1 BLR 111
Trollope & Colls Ltd v North West Metropolitan Regional Hospital Board
Metropolitan Regional Hospital Board [1973] 2 All E.R. 260
McAlpine Humberoak v McDermott International (1) [1992] 58 BLR 1
Inserco Ltd v Honeywell Control Systems [1996]
 Contractors have used the 'time at large'
argument in an attempt to avoid paying liquidated
damages
 Even where the delay caused by the employer is a
very small part of the overall delay the employer
cannot simply discount this delay and claim
liquidated damages for the remainder
 If the completion is delayed by an act of
prevention the employer can still sue for general
or un-liquidated damages

Rapid Building Group Ltd v Ealing Family Housing Association Ltd [1984] 29 BLR 5
 The Contractor:
 will not be liable for liquidated damages during the
period where time is extended
 The Employer:
 provide a mechanism for adjusting the time for
completion where delays are caused by or on behalf of
the employer.

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 In order to protect the employer’s right to
liquidated damages, extension of time clauses
need to be carefully drafted as to include all the
expected range of “acts of prevention” by the
employer
 Most standard forms of construction contract now
contain adequate extension of time procedures.
 They include fully comprehensive wording or a
‘catch-all’ provision for any events which are the
responsibility of the employer
 Examples of ‘catch-all’ provisions:
 Sub-clause 8.4 of the FIDIC (CONS) sets out the
delay events which could possibly raise entitlement
to extension of time under the subject contract
 Such events include: “(e) any delay, impediment or
prevention caused by or attributable to the
Employer, the Employer's Personnel, or the
Employer's other contractors on the Site”
 where there is no agreed time for completion
 where there is a time for completion, but there is
a delay by the employer and the contract does not
provide for an extension of time as a result of the
employer delaying event
 where the contract provides for extension of time
in case of delaying events, but there was a failure
of the contractual machinery
 Time ‘at Large’ under the Common Law
 Relevant legal principles under the Civil Law
 Conclusion

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 Time at large is a Common Law concept and in
most Civil Law countries, this concept remains
unknown
 In civil law jurisdictions, it seems that there are
relevant legal principles on which the argument
can be based
 Under the Egyptian Civil Law:
 no express principle comparable to the Common
Law ‘prevention principle’ exist as such; however,
notions that come very close to it exist
 What if there is no express provision to extend the
time for completion for a delay caused by the
employer and such delay occurred?
 Article 216:
 “The judge may reduce the amount of damages or
may even refuse to allow damages if the creditor, by
his own fault, has contributed to the cause of, or
increased, the loss”
 Article 215:
 “When specific performance by the debtor is
impossible he will be ordered to pay damages for
non-performance of his obligation, unless he
establishes that the impossibility of performance
arose from an external cause beyond his control
The same principle will apply, if the debtor is late in
the performance of his obligation”
 Time ‘at Large’ under the Common Law
 Relevant legal principles under the Civil Law
 Conclusion

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 The Time ‘at Large’ concept is well established in
common law jurisdictions.
 In civil law jurisdictions, although the concept
does not exist as such, there could be relevant
legal principles on which the argument can be
based.
Books
Al-Sanhuri A, A Treatise on Civil Law [Al-Wassit Fi Sharh’ Al-Kanoun Al-
Madani], Part 1, Volume 1, (2nd edn, Dar El Nahda El Arabiya Publisher 1989)
Axel-Volkmar J and Gotz-Sebastian H, FIDIC: A Guide for Practitioners,
(Springer – Verlag Berlin Heidelberg 2010)
Booen P, The FIDIC Contracts Guide, (FIDIC 2000)
Bunni N, The FIDIC Forms of Contract, (3rd edn, Blackwell Publishing 2005)
Chappell D, Powell-Smith V and Sims J, Building Contract Claims, (4th edn,
Blackwell Publishing 2005)
Knowles R, 200 Contractual Problems and their Solutions, (3nd edn, Wiley-
Blackwell 2012)
Murdoch J and Hughes W, Construction Contracts Law and management, (4th edn,
Taylor & Francis 2008)
Pickavance K, Delay and Disruption in Construction Contracts, (4th edn, Sweet &
Maxwell 2010)
Wallace D, Hudson’s Building and Engineering Contracts, (12th edn, Sweet &
Maxwell 2012)
Journals, Articles & Working Papers
Atkinson D, ‘Time At Large’ [2007] Atkinson Law, East Sussex, England
Bellhouse J and Cowan P, ‘Common Law “Time at Large” Arguments in a Civil
Law Context’ (2007) 23(8) Const LJ 592
Caslav P, ‘Civil Law and Common Law: Two Different Paths Leading to the Same
Goal’ (2001) 32(3) Victoria University of Wellington Law Review 817
Fawzy S and El-adaway I, ‘Time “at large” within the Common Law Legal
System: Application to Standard Forms of Contract’ (2014) 6(1) Journal of
Legal Affairs and Dispute Resolution in Engineering and Construction,
American Society of Civil Engineers
Fawzy S, El-adaway I, and Hamed T, ‘Contracting in a Global World: Application
of the “Time At Large” Principle’, (2015) 7(3) Journal of Legal Affairs and
Dispute Resolution in Engineering and Construction, American Society of Civil
Engineers 1
Rosher P, ‘Delay Analysis in International Construction Projects: A Comparative
Study in English and French law’ (Thomson Reuters (Professional) UK Limited
and Contributors 2014)
Pickavance K, ‘Calculation of a Reasonable Time to Complete When Time is At
Large’ [2006] ICLR 167