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ONG RUI YING
UNIVERSITI TEKNOLOGI MALAYSIA
TIME AT LARGE AND REASONABLE TIME FOR COMPLETION ONG RUI YING A project report submitted in partial fulfillment of the requirement for the award of the degree of Master of Science (Construction Contract Management) Faculty of Built Environment Universiti Teknologi Malaysia JUNE 2007 .
iii Dedicated to my personal Lord and Saviour Jesus Christ and to my beloved parents and siblings. .
Prof. A special thanks to all the lecturers for the course of Master of Science (Construction Contract Management). who have in their own way helped me a great deal throughout the preparation and production stages of this master project. I would like to express my gratitude to my supervisor. . Assoc. Dr Rosli Abdul Rashid for his guidance and advice in order to complete this master project. Not forgetting my dearest parents and siblings for their unconditional love and support. Lastly. help and tolerance in writing and completing this master project. I would like to express my thanks to my fellow course mates. Care and concern from my house mates are also greatly appreciated.iv ACKNOWLEDGEMENTS First of all. for their patience and kind advice during the process of completing the master project. A debt of gratitude is owed to many individuals who have also given me support.
are not caused or attributed to by him and excluding circumstances which were under the control of the contractor. time is said to be “at large”. Findings of this study will assist contractors to assess a reasonable time to complete the works when time at large occurs. Timely completion of the construction works by the contractor is of great importance to the employer. “Reasonable time” means reasonable under the existing circumstances. during the execution of the contract. the contractor’s obligation to complete the works by the specified date is removed if the employer delays the contractor in the execution of the works. circumstances may arise which render that completion date unenforceable. considering what in ordinary circumstances was a reasonable time for performance and then considering to what extent the time for performance of the contractor was in fact extended by extraordinary circumstances outside his control. When the specified completion date no longer applies. Therefore. and the contractor’s obligation is merely to complete the works within a reasonable time. There are no limitations as for the court cases referred to in this study in terms of type of projects as long as the case is related to reasonable time. A total of ten cases centered on what is a reasonable time were studied. most construction contracts specify time for performance in achieving completion of the works. What does it mean by reasonable time? It is most certainly not “as and when the contractor sees fit”. assuming that those circumstances. However. The approach adopted in this research is case law based.v ABSTRACT Time is an extremely important issue in construction. in so far as they involve delay. At common law. . The study is aimed at determining the meaning of “reasonable time” when time is at large. Through the analysis of courts’ judgments. the meaning of “reasonable time” when time at large occurs was determined.
situasi ‘time at large’ akan berlaku dan tanggungjawab kontraktor hanyalah menyiapkan kerja dalam masa yang wajar. Kes mahkamah yang dirujuk di dalam kajian ini tidak dibataskan dari segi jenis projek.vi ABSTRAK Masa merupakan satu isu yang penting di dalam pembinaan. Apabila masa penyiapan kerja yang ditetapkan tidak dapat dikuatkuasakan lagi. ketika perlaksanaan kontrak. keadaan-keadaan yang tertentu mungkin timbul dan menyebabkan tarikh penyiapan tidak boleh dikuatkuasakan. Pendekatan yang digunakan dalam kajian ini adalah berdasarkan kes undang-undang. mengandaikan bahawa keadaan yang berkaitan dengan kelewatan tersebut bukan disebabkan olehnya dan tidak termasuk keadaan yang di bawah kawalan kontraktor. Apakah makna masa yang wajar? Pastilah bukan “sebagaimana dan apabila kontraktor rasa sesuai”. . kebanyakan kontrak pembinaan menetapkan masa untuk penyiapan kerja. makna “masa yang wajar” dapat ditentukan. Kajian ini adalah untuk menentukan makna “masa yang wajar” apabila keadaan ‘time at large’ berlaku. Sebanyak sepuluh kes yang berkaitan dengan masa yang wajar telah dikaji. Dapatan kajian ini akan membantu kontraktor untuk menilai apakah masa yang wajar untuk penyiapan kerja apabila situasi ini berlaku. Di dalam ‘common law’ kewajipan kontraktor untuk menyiapkan kerja pada masa yang ditetapkan akan dibatalkan sekiranya majikan melambatkan kontraktor dalam perlaksanaan kerja. Kerja pembinaan yang disiapkan oleh kontraktor tepat pada masanya adalah satu aspek yang amat penting kepada majikan. Oleh itu. Melalui analisis keputusan mahkamah. mempertimbangkan apa yang di bawah keadaan biasa merupakan masa yang wajar untuk penyiapan kerja dan seterusnya mempertimbangkan sejauh mana masa untuk menyiapkan kerja adalah dilengahkan oleh keadaan luar biasa di luar kawalannya. Bagaimanapun. asalkan kes-kes tersebut berkaitan dengan masa yang wajar. “Masa yang wajar” bermakna wajar di bawah keadaan yang wujud.
3 1.0 INTRODUCTION 1.5 1.4 1.6 Background Studies Problem Statement Objective of the Research Scope of the Research Significance of the Research Research Methodology 1 5 6 6 7 7 .1 1.2 1.vii TABLE OF CONTENTS CHAPTER TITLE DECLARATION DEDICATION ACKNOWLEDGEMENTS ABSTRACT ABSTRAK TABLE OF CONTENTS LIST OF TABLES LIST OF CASES LIST OF ABBREVIATIONS PAGE ii iii iv v vi vii x xi xv 1.
8 Causes beyond the Contractor’s Control 27 28 29 29 30 31 31 32 35 188.8.131.52 Other Commonly Stipulated Grounds 2.2. 10/83) 2.2 Purposes of Extension Provisions Grounds for Extension of Time 2.viii 2.5 Extension of Time 2.6. 1998) 2.1 Public Works Department (P.5.2.4 Failure of Contractual Machinery 36 43 44 45 2.0 TIME AT LARGE 2.6.W.184.108.40.206.5.4 Late Possession of Site 220.127.116.11 Waiver 2.2 Introduction Standard Form Provisions 2.5 Sub-contractors 2.1 Force Majeure 2.2 Pertubuhan Arkitek Malaysia (PAM) (2nd Edition.1 Events Giving Rise to Time at Large 18.104.22.168.2.1 22.214.171.124.5.6 Time at Large 126.96.36.199.5.2 Variations and Extra Works 2.6 Delay in Approvals and Instructions 2.2 Time or Date Ceases to Apply by Acts of Prevention 2.3 Exceptionally Adverse Weather Conditions 2.6.1 No Time or Date Fixed in the Contract 2.1 Liquidated Damages 2.1.3 Time for Completion 2.5.D) Form 203A (Rev.3 Federation Internationale des Ingenieurs Conseils (FIDIC) Construction Contract (1999) 188.8.131.52.4 Time of the Essence 14 15 16 19 20 22 22 24 24 26 12 10 9 10 Damages for Late Completion 2.1 2.7 Conclusion .1 2.
0 CONCLUSION AND RECOMMENDATIONS 5.3.3 5.3 Conclusion 68 78 60 59 60 5.2 Introduction Reasonable Time when Time is at Large 4.3.1 Reasonable Time Where No Time for Completion is specified in the Contract/ Contract is Silent as to Time 4.2 3.3.4 Sale of Goods Act 1957 (Revised 1989) Supply of Goods and Services Act 1982 (UK) International Sales 54 54 55 56 57 47 49 Conclusion 4.4 Introduction Summary of Research Findings Problems Encountered during Research Conclusion 80 80 82 82 REFERENCE BIBLIOGRAPHY 83 85 .2 5.ix 3.0 REASONABLE TIME 3.1 5.2 Reasonable Time where the Stipulated Date Has ceased to be Applicable by Reason of Prevention or Breach 4.3 3.2 3.1 4.3 Introduction Reasonable Time Statutory Provisions that Apply the term “Reasonable Time” 3.2.1 3.1 3.2.0 REASONABLE TIME WHEN TIME IS AT LARGE 4.
1 Reasonable time where no time for completion is specified in the contract/contract is silent as to time 73 4.2 Reasonable time where the stipulated date has ceased to be applicable by reason of prevention or breach 76 .x LIST OF TABLES TABLE NO TITLE PAGE 4.
1 CB (NS) 110. HC Afovos Shipping Co v Pagnan  1 WLR 195 at 201 (HL) Amalgamated Building Contractors Ltd v Waltham Holy Cross Urban District Council  2All ER452 at 452 (CA).  3 MLJ 385. (1989) 46 BLR 105 Abdul Rahim bin Syed Mohd v Ramakrishnan Kandasamy & Anor. 42 .xi LIST OF CASES CASES A Bell & Son (Paddington) Ltd v CBF Residential Care and Housing Association. 26 LJCP 73 Ayadurai v Lim Hye  MLJ 143 Balfour Beatty Building Ltd v Chestermount Properties Ltd 62 Build LR 1 Barque Quilpue Ltd v Bryant (1904) Bernhard’s Rugby Landscapes Ltd v Stockley Park Consortium (No 2)  BFI Group of Companies Ltd v DCB Integration Systems Ltd  CILL 328 Bilton v Greater London Council (1982) 20 BLR 1. Amherst v James Walker  Ch 305 at 315 (CA) Arab Malaysian Corpn Builders Sdn Bhd v ASM Development Sdn Bhd.  6 MLJ 136 Astea (UK) Limited v Time Group Limited  EWHC 725 (TCC) Attwood v Emery (1856). HL PAGE 11 17 10 36 48 20 43 54 17 45 36 44 11 23.
CA British Steel Corporation v Cleveland Bridge & Engineering Co Ltd  1 All ER 504. v Harbormaster Ltd  1 Lloyd’s Rep. 28. 12 Ad.R. 654 Ganam d/o Rajamany v Somoo s/o Sinnah  2 MLJ 290. Charnock v Liverpool Corporation  1 WLR 1498 (CA) Chye Fook & Anor v Teh Teng Seng Realty Sdn Bhd  1 MLJ 308. Bruno Zornow (Builders) Ltd v Beechcroft Developments Ltd (1989) 51 BLR 16 CCECC (HK) Ltd v Might Foundate Developement Ltd & Ors  HKCU 916 Chaffer and Tassie v Richards (1905) 26 NLR 20. 22.  3 All ER 492. 54 17 .xii CASES British and Commonwealth Holdings plc v Quadrex Holdings Inc.L. Gaymark Investments Pty Ltd v Walter Construction Group (1999) NTSC 143. Earth & General Contractors Ltd v Manchester Corporation (1958) 108 LJ 665 Etablissements Chainbaux S.  QB 842. Felton v Wharrie (1906) Fisher v Ford (1840). & El. HC. Dodd v Churton  1 QB 562 (CA). 303 Fairclough v Rhuddlan Borough Council (1985). Charles Rickards Ltd v Oppenheim  1 KB 616. Holme v Guppy (1838) 3 M&W 387 Hydraulic Engineering Co Ltd v McHaffie. (1999) 16 BCL 449.A. (2005) 21 Const LJ 70 Greater London Corporation v Cleveland Bridge and 48 33 69 29 28 59 18 28 18 42 69 27 43 48 2 64 16 PAGE Engineering (1984) 34 BLR 57 Hock Huat Iron Foundry v Naga Tembaga Sdn Bhd  1 MLJ 65. Goslett & Co. 24 Build LR 94. 36 52. (1878) 4 QBD 670 Ismail bin Haji Embong v Lau Kong Han  2 MLJ 213 19 4.
29. 39 69 42 17. 28.xiii CASES J and J Fee Ltd v The Express Lift Company Ltd  34 ConLR 147. 45 60 29 53 17 27 17 25 21 20 54 21 42 17 42 36 PAGE Frederick Leyland & Co Ltd  AC 428 (HL). Linggi Plantations Ltd v Jagatheesan  1 MLJ 89 Lombard plc v Butterworth  Q. 13. Sims & Co.B. Jamshed Khodaram Irani v Burjorni Dunjibhai (1915) LR 43 IA 26 Kenny and Hingles’ Trustee v Union Government (1928) TD 272 Lai Yew Seong v Wong Chieu Gook (1913) 1 FMSLR 12 LeBaupin v Crispin  2 KB 714. 38 48 4. v Cardiff Corporation  2 QB 638 Maniam v The State of Perak  MLJ 75 Meyer v Gilmer (1899) 18 NZLR 129 Mohamed Habidullah v Bird & Co. 21 63 .) Lyle Shipping Co.  1 KB 103 13. 27 at 535 (C. 22. AIR 1922 PC 178 Murdoch v Lockie (1897) 15 NZLR 296 Neodox Ltd v Swinton and Pendlebury Borough Council (1958) 5 BLR 34 North West Metropolitan Regional Hospital Board v Bickerton (1970) Panamena Europea Navigacion (Compania Limitada) v 32.A. 39 29. Peak Construction (Liverpool) Ltd v McKinney Foundations Ltd (1970) 1 BLR 111 Percy Bilton v Greater London Council  1 WLR 794 Raineri v Miles  AC 1050 (HL) Rapid Building Group v Ealing Family Housing Association Ltd (1984) 29 BLR 5 Rickards v Oppenheim  1 KB 616 Russell v Viscount Sa da Bandeira (1862) 13 CB (NS) 149 Sim Chio Huat v Wong Ted Fui  1 MLJ 151. Pantland Hick v Raymond & Reid  AC 22. v Midland Railway Co.
Temloc Ltd v Enrill Properties Ltd (1987) 39 BLR 30 Tew v Newbold-on Avon School Board (1884) 1 C&E 260 Thamesa Designs Sdn Bhd v Kuching Hotels Sdn Bhd  3 MLJ 25 The Lyle Shipping Company Ltd v The Corporation of Cardiff  2 QB 638. SMK Cabinets v Hili Modern Electrics Pty Ltd  VR 391. HC.xiv CASES Shawton Engineering Ltd v DGP International Ltd  EWCA Civ 1359. & G. Wells v Army and Navy Cooperative Society (1902) 86 LT 764 Westwood v Secretary of State for India (1863) 7 LT 736 27 41 42 3. 6 Man. 593 Tan Ah Kian v Haji Hasnan  MLJ 400. (1984) 1 Const LJ 159 Startup v Macdonald (1843). FC. 16 17. HL. 42 59 70 PAGE . 18 42 62 42 21 18 62 12 42 36.  AC 1050 (HL) Yeoh Kim Pong Realty Ltd v Ng Kim Pong  MLJ 118 Walter Lawrence v Commercial Union Properties (1984) 4 ConLR 37.  MLJ 175. Thornhill v Neats (1860) 8 CB (ns) 149 Trollope & Colls Ltd v NW Metropolitan Regional Hospital  1 WLR 601 (HL) United Scientific Holdings Ltd v Burnley Borough Council  2 All ER 62. Taylor v The Great Northern Railway Company [LR] 1 CP 385.
Common Pleas Law Reports. Common Pleas Division Dominion Law Reports Exchequer Reports Equity Case High Court of England anf Wales Decisions . Chancery Division Construction Industry Development Board Construction Law Digest Divisional Court. England Construction Law Journal Construction Law Reports Law Reports.xv LIST OF ABBREVIATIONS AC All ER ALJ ALR ALJR App Cas B B&S Build LR CA CB Ch Ch App Ch D CIDB CLD DC Const LJ Const LR CP CPD DLR Exch Eq EWHC Law Reports Appeal Case All England Law Reports Australian Law Journal Australian Law Reports Australian Law Journal Reports Appeal Cases Beavan Best and Smith’s Reports Building Law Reports Court of Appeal Common Bench Reports Chancery Chancery Appeal The Law Reports.
Divorce and Admiralty Division of High Court Queen Bench Technology and Construction Court Singapore Law Reports Weekly Law Reports Weekly Reports .xvi FC F&F H&N HL HKC HKLR IR JKR KB LGR LJKB (QB) Lloyd’s Rep LR LT JP MLJ NZLR PAM PWD PD QB TCC SLR WLR WR Federal Court Foster & Finlayson’s Reports Hurlstone & Norman’s Exchequer Reports House of Lords Hong Kong Cases Hong Kong Law Reports Irish Reports Jabatan Kerja Raya King Bench Local Government Reports Law Journal Reports. King’s (Queen’s) Bench Lloyd’s List Reports Law Reports Law Times Reports Justice of the Peace / Justice of the Peace Reports Malayan Law Journal New Zealand Law Reports Pertubuhan Arkitek Malaysia Public Work Department Probate.
1(iii).0 and/or sub-clause 32. it is a primary objective of project management. Together with cost and quality.CHAPTER 1 INTRODUCTION 1.1 of PAM 98: On the Date of Commencement stated in the Appendix. This may be seen from clause 21. and a major criterion by which the success of a project is judged. clause 38(b) of PWD 203A which states: . and regularly and diligently proceed with the same and complete the same on or before the Date for Completion stated in the Appendix subject to any extension of time in accordance with Clause 23. The scope of this subject includes three basic time-related issues which are commencement.1 Background Studies Time is an extremely important issue in construction. possession of the site shall be given to the Contractor who shall thereupon begin the Works. progress and completion (Murdoch and Hughes. 2000).
time is expressly or impliedly “of the essence”. Under certain types of contract (for example contracts for the sale of perishable goods). shall be given on or before the “Date of Possession” stated in the Letter of Acceptance of Tender to the Contractor who shall thereupon and forthwith commence the Works (but subject to sub-clause (a) hereof) and regularly and diligently proceed with and complete the Works on or before the Date of Completion as stated in the Appendix. 1975). stipulated periods are provided within which the buildings have to be delivered became an essential condition of the agreement (Guest.2 Unless the Contract Documents shall otherwise provide. . Where it comes to building contracts. a court may be persuaded to imply a term for completion by a certain date. the employer’s remedy for any lateness in performance or completion will be an award for damages for breach of contract (Murdoch and Hughes. Even where no precise date has been included in the contract itself. like all such obligations. Contracts of all kinds commonly specify a date for the performance of some obligation (Wallace. 2000). backed up by legal sanctions. It is usual to name the date by which completion is required. possession of the Site as complete as may reasonably be possible but not so as to constitute a tenancy. which states: On the Date of Possession possession of the site shall be given to the contractor who shall thereupon begin the Works. 1995). Consequently.1 of JCT 98. The contractor’s obligation to complete the works by the completion date is. as can be seen in Clause 39 of PWD 203A. 1 (1989) 51 BLR 16. on the ground that the parties must have intended this. as seen in Bruno Zornow (Builders) Ltd v Beechcroft Developments Ltd 1 . and clause 23. regularly and diligently proceed with the same and shall complete the same on or before the Completion Date.
at the time of the acceptance. the House of Lords. HL. in United Scientific Holdings Ltd v Burnley Borough Council2 . The parties must have expressly stipulated in the contract that conditions as to time should be strictly complied with 2.3 Under what circumstances can time be held to be of the essence of a contract? According to Chow (2004). citing with approval a statement on the position in Halsbury’s Laws of England (4th Ed). the promisee accepts performance of the promise at any time other than that agreed. which reads: If. . a party fails to perform it by the stipulated time. The party who has been subjected to unreasonable delay gives notice to the party in default making time of the essence Section 56 (3) of Contract Act 1950 states the effect of acceptance of performance at time other than agreed (the completion date which is also the essence of the contract) upon. he gives notice to the promisor of his intention to do so. the innocent party has the right either to rescind the contract. in case of a contract voidable on account of the promisor’s failure to perform his promise at the time agreed. The position in the rules contained in section 56 (3) of the Contracts Act 1950 is that: if in a contract in which time is of the essence. unless. ruled that time should not be held to be of the essence unless the following conditions are present: 1.  AC 1050 (HL). The nature of the subject-matter of the contract and the surrounding circumstances demonstrate that time should be considered to be of the essence 3. If he treats it either expressly or by conduct as still 2  2 All ER 62. or to treat it as still subsisting. the promisee cannot claim compensation for any loss occasioned by the non-performance of the promise at the time agreed.
and the contractor’s obligation is merely to complete the works within a reasonable time. (1984) 29 BLR 5. It is a common belief in the construction industry that extensions of time are solely for the benefit of the contractor. At common law. 2000). However. there would be a date from which liquidated damages could be calculated (Sinnadurai. the contractor’s obligation to complete the works by the specified date is removed if the employer delays the contractor in the execution of the works. time is said to be “at large”. It is not the contractor who has most need of extension of time provisions. A string of well documented cases from Holme v Guppy3 to Rapid Building v Ealing4 confirm that the courts will not uphold liquidated damages where the employer has prevented completion on time unless there is express provision in the contract to extend time for the employer’s default (Eggleston. Consequently he cannot claim liquidated damages under the contract unless there is a provision as to the extension of time. the contract exists but time ceases to be of the essence and become at large. 3 4 (1838) 3 M&W 387. 1992). . 1992). At face value by giving the contractor more time to complete the works and by reducing his liability for liquidated damages they do appear to be one-sided. it is the employer. A fundamental point is that the time for completion can only be extended where the contract permits. this cessation can be revived and so time can be restored to be the essence by the innocent party serving a notice to the party in default giving a new date of completion. and strictly in accordance with the contract provisions (Murdoch and Hughes.4 continuing. The ultimate dispute on a construction contract is for an employer to assert that time is of the essence and to determine without paying whilst the contractor is claiming time to be at large and determining for non-payment (Eggleston. When the specified completion date no longer applies. 1987). If this is done.
Thus. Similarly in Malaysia. .5 Problem also arises in the wording employed by many of the standard forms of contract as there was a shortcoming in that some of them did not fully cater in the extension of time clause for all delays caused by the employer.” This is designed to be a “catch-all” provision so that time does not inadvertently become at large. 2005).2 Problem Statement The phrase “time at large” is much loved by contractors. General sweep-up wording in an extension of time clause (such as “or other unavoidable circumstances”) has been held by the English courts not to cover employer defaults. time will be at large when the employer causes delay to the contractor e. by ordering extra work and there is no provision for extension of time for the contractor. This is not what it means.7(xi) allows the Architect to grant an extension of time for “any act of prevention or breach of contract by the Employer. 1992). Time becomes at large when the obligation to complete within the specified time for completion of a contract is lost. The obligation then becomes to complete within a reasonable time. Other forms like IEM. The right is lost completely if time becomes at large – the employer can still sue for general or unliquidated damages for late completion – but regard will then had to be the contractor’s entitlement to a reasonable time (Eggleston. 1. The question then is what is a reasonable time? What is generally at stake in the matter of whether or not time is at large is the employer’s right to deduct liquidated damages for late completion.g. PWD 203A and CIDB do not have such similar provision (Martin. only PAM 98 Clause 23. the suggestion that the contractor has as much time as he wants to finish the works. It is most certainly not “as and when the contractor sees fit”.
1998) . Pertubuhan Arkitek Malaysia (PAM) (2nd Edition.4 Scope of the Research The approach adopted in this research is case law based. 1992).3 Objective of the Research The objective of this study is to determine the meaning of “reasonable time” when time is at large. What is reasonable will depend on all the circumstances at the time (Murdoch and Hughes. the whole circumstances must be taken into consideration and not merely those existing at the time of the making of the contract. He has to complete in a “reasonable time”. as Emden’s Building Contracts. The standard forms of contract that will be referred to are: 1.then in order to ascertain what reasonable time is. 1.6 Time being “at large” does not mean that the Contractor has no obligation to complete the work. puts it: When a reasonable time for completion becomes substituted for a time specified in the contract …. 1. Calculating a reasonable time is not an easy matter and. There are no limitations as for the court cases referred to in this study in terms of type of projects as long as the case is related to time at large and reasonable time.
2. Public Works Department (P.W.D) Form 203A (Rev. 10/83)
3. Construction Industry Development Board (CIDB) Standard Form of Contract for Building Works (2000 Edition)
Internationale des Ingenieurs Conseils (FIDIC) Construction Contract (1999)
Significance of the Research
This research should give a review to contractor and employer as to what is time at large and when does it apply. When the parties in the industry are equipped with the knowledge of time at large and its implications on both contractor and employer, this situation can be avoided as much as possible. Suggestion on what is a reasonable time to complete the works in the event of time at large is also provided for through this research.
This research involved literature review on time-related matters in the construction industry. Initial study will be carried out involving extensive reading and understanding of the concepts involved.
Then data and information collecting will be carried out. Primary source will be law cases found in Malayan Law Journal through the access of Lexis Nexis
available in the university’s online database. Secondary sources such as articles, journals, textbooks and related websites will also be studied and referred to in the course of the whole research.
Analysis will be done on collected information and will be arranged in an orderly manner. Finally, writing up will be carried out, followed by checking and correction of writing.
TIME AT LARGE
Most construction contracts specify time for performance in achieving completion of the whole of the works and many have additional requirements for phased or sectional handovers. Time may be fixed either by reference to specified dates or by reference to a construction period. If the latter method is used it is essential that a precise completion date can be established. This means that there must be an identifiable commencement date from which time runs and there must be no uncertainty on whether the construction period takes in or excludes holiday periods. These may seem obvious matters but it is extraordinary how often in construction industry disputes it is found that the intentions of the parties in respect of time have not been clearly expressed or have been misapplied. (Eggleston, 1992).
Similarly, according to Chow (2004), a date is fixed from which the time for completion begins to run. Frequently, this is the date on which the contractor takes possession of the site, but this is by no means the rule. In large and elaborate
10 projects. clause 39(a) basically reiterates the obligation of the Contractor to complete the 5 Afovos Shipping Co v Pagnan  1 WLR 195 at 201 (HL). 2. damages for non-completion and extension of time is looked into. In this case. Standard form provisions related to commencement and completion of works.W. a construction contract may merely provide that the works shall be completed on or before 31 December 2004.2 Standard Form Provisions Construction contracts usually contain elaborate provisions stipulating the time within which the contractor is required to complete the construction of the works. instead of stipulating that the works shall be completed within 24 months from 1 January 2003. 10/83) Subject to any requirement for completion in parts or sections in the Contract. Thus. As an alternative to stipulating the period within which the works have to be completed. as well as the conditions under which such time may be extended. a contract may provide that the contractor’s obligation is to complete the works on or before a particular date.5 2.1 Public Works Department (P.2. . it is not always possible for the owner to afford the contractor unencumbered possession of the whole site and it is quite common in these situations for the contract to provide that time for completion begins to run from some stipulated date in lieu of the date of site possession.D) Form 203A (Rev. the contractor has the whole of the period up to the end of the stipulated day of completion to perform his obligation.
Lim (2004) also noted that although not specifically stated in clause 40. the party complaining of the breach is entitled. 2004). This agreed damages expressed as Liquidated and Ascertained Damages is provided in the Contract to negate the necessity of the Government having to prove the actual loss suffered in the event of the Contractor’s breach for delayed completion. it is designed to allow the Government to sue for or deduct the Liquidated and ascertained Damages simpliciter from the money due to the Contractor.11 whole of the Works by the Date for Completion as stated in the Appendix or such extended time as granted by the Superintending Officer (Lim. if a sum is named in the contract as to the amount to be paid in case of such breach. See A Bell & Son (Paddington) Ltd v CBF Residential Care and Housing Association (1989) 46 BLR 105. If a new completion date is fixed and the contractor has not completed by that date. the penalty stipulated for. as the case may be. or if the contract contains any other stipulation by way of penalty.6 In other words. it is implicit that the Superintending Officer should only issue the Certificate of Noncompletion after he has fully evaluated and granted the appropriate extension of time (if any) to the Contractor pursuant to clause 43. to receive from the other party who has broken the contract reasonable compensation not exceeding the amount so named or. The clause is not enforceable and no amount can be recovered by the Government if 6 7 See BFI Group of Companies Ltd v DCB Integration Systems Ltd  CILL 328. The enforceability of this provision is subject to section 75 of the Contracts Act 1950 which reads: When a contract is broken. whether or not actual damage or loss is proved to have been caused thereby. . Clause 40 provides the machinery whereby the Government and the Contractor can agree in advance the damages to be payable by the Contractor if the Contractor fails to complete by the Date for Completion or within any extended time granted by the Superintending Officer.7 In addition. it is implicit that a non completion certificate to that effect must be issued by the architect whether or not a certificate had been issued in relation to an earlier and superseded completion date. it is essential that the rate for Liquidated and Ascertained Damages is clearly inserted in the Appendix.
such as failure to give possession of site on the due date.2. Clauses 21. This clause is an improvement over the extension of time clause in the PAM (1969 edition) form of contract which contained limited grounds for extending time and did not cover many common delaying events. 1998) According to Rajoo (1999). it would be construed to constitute an agreement by the parties that no damages would be payable by the Contractor and the Government would be precluded from even claiming general damages against the Contractor for delayed completion. The Superintending Officer has no inherent power to extend the time for completion and in the absence of an express provision such as this clause he would have no power to do so. In this case. This enables the contractor to be given site possession in one go or alternatively by defined sections based on the needs of the employer. the Government would have to resort to claim general damages against the Contractor for delayed completion. . 2. As his secondary obligation.12 it is omitted. However. if “NIL” is inserted as the rate. clause 21 of PAM 1998 Form is one of the most important clauses in the contract.2 Pertubuhan Arkitek Malaysia (PAM) (2nd Edition.1 and 21. The contractor’s primary obligation is to complete the Works by the contractual date for completion. the contractor is then to begin the Works and proceed ‘regularly and diligently’ so as to complete the Works ‘on or before’ the completion date set out in the Appendix of the PAM1998 Form.9 He has the whole 8 9 Temloc Ltd v Enrill Properties Ltd (1987) 39 BLR 30. It provides for the employer to give site possession in whole or parts by appropriately designating the Date of Commencement or Dates of Commencement.8 Clause 43 provides for the Superintending Officer to grant an extension of time on specified grounds and an extension of time is grantable on those grounds and no other.2 of the PAM Contract.
1999). If the employer requires the work to be completed in parts. Clause 23 on extension of time of the PAM 1998 Form is aimed at allocating the risks of non-completion between the parties. the architect would have no power to control the contractor’s order of working.3 go on to cure the inadequacy of the PAM 1969 Form in dealing with commencement and completion in phases.4 empowers the architect to issue instructions requiring the postponement of any work to be executed under the contract. Without this express power.1(iii) of the PAM 1998 Form (the latter clause permits an extension of time for reinstatement of war damage).10 The Dates of Commencement and Completion must be specified in the Appendix and.13 period between the Dates of Commencement and Completion to carry out and complete the Works in a manner he considers best. Clauses 21. Both liquidated damages and extension of time clauses will be construed strictly contra proferentem against employer if there is any doubt as to the construction of the provision11 (Rajoo. subject to the grant of any extension of time under clauses 23 or 32. putting back the date on which liquidated damages will start to apply. or within any extended period certified by the Architect under clauses 23 or 32. the contractor is bound to complete the work by the specified Date for Completion. It reduces the contractor’s risk in relation to delays by entitling him to an extension of time for practical completion on account of delay based on various circumstances.1 (iii). Clause 22 on damages for non-completion provides machinery whereby the parties can agree in advance the damages payable by the contractor and recoverable by the employer if he fails to complete the Works by the Date/s for Completion stated in the Appendix. these two clauses set out the mechanics of how the contractor can be obligated to complete the Works in part. It is the main provision under which any alteration to the Date for Completion can be made and refers to an extension of time 10 11 Supra note 4. .2 and 21. The employer or the architect may be forced by circumstances to call for delay in the whole or part of the Works. See Peak Construction (Liverpool) Ltd v McKinney Foundations Ltd (1970) 1 BLR 111. Clause 21.
the Contractor is subject to pay delay damages to the Employer for this default. Clauses 8.12 The Contractor then has the obligation to complete the whole of the Works and each Section. However.2(a) and 8. all in one clause. 14 Clause 8. Unless otherwise stated in the Particular Conditions. 2. or from any other duties.14 meaning a lengthening of the period within which the Works have to be completed (Rajoo. The engineer shall give the Contractor not less than 7 days’ notice of the Commencement Date. obligations or responsibilities which he may have under the contract. . The delay damages do not relieve the Contractor from his obligation to complete the Works. delay damages and extension of time.13 If the Contractor fails to comply with the Time for Completion. These delay damages shall be the sum stated in the Appendix to Tender.1 of the FIDIC Form.2(b) of the FIDIC Form. the total amount due cannot exceed the maximum amount of delay damages (if any) stated in the Appendix to Tender.14 12 13 Clause 8.3 Federation Internationale des Ingenieurs Conseils (FIDIC) Construction Contract (1999) Clause 8 of the FIDIC Construction Contract includes provisions for commencement and completion of works. within the Time for Completion including achieving the passing of the Tests on Completion and completing all work which is stated in the Contract as being required for the Works or Section to be considered to be completed. the Commencement Date shall be within 42 days after the Contractor receives the Letter of Acceptance. 1999).7 of the FIDIC Form. if any.2. and payment is provided to be made on daily basis.
PAM 1998 and CIDB 2000. its consequences and release from performance under the law. Similar problems in fixing the date for completion with certainty can arise when extensions of time are granted. it is necessary that this time is linked in the contract documentation to either a start date or a completion date. particularly where they are expressed in days. if the contractor is allowed to fix his own time. The date for completion is therefore calculated from a date for commencement given by the engineer. cover working days only or include weekends and holidays. For example. The danger of granting periods of time instead of fixing new dates is that uncertainty can be created as to whether such periods. procedural variations are often introduced and the objective of establishing a precise date for completion can be lost. Such a provision is not found in other standard forms of building contract such as PWD 203A. such as the definition of force majeure. In both cases. tenderers are commonly allowed to give their own preferred times for completion or to offer an alternative to that specified in the tender documents. notice of force majeure.15 FIDIC Form has a provision in clause 19 which elaborates on force majeure. . 2. Without one or the other there will be no firm date for completion. Differences of approach in various standard forms of contract may be in part responsible. However. building forms usually specify a date for completion in the appendix whereas civil engineering forms usually specify a time for completion.3 Time for Completion According to Eggleston (1992).
it is a breach of warranty and damages are the employer’s remedy.  QB 842. 1992).16 2. acceptance of the goods can be refused. did not apply in cases when the parties had expressly agreed that time should be of the essence. CA.3. Finishing late does not normally entitle the employer to dismiss the contractor from the site.1 Time of the Essence Section 56(1) of the Contracts Act provides that failure to perform within a fixed time in a contract. the employer is entitled to dismiss the contractor from the site and has no liability for payment for the unfinished work. If the contract is a supply contract and the goods are offered late. If the contract is a construction contract and the contractor fails to finish on time. This attitude of equity towards time. equity did not take such a strict view. Nor does finishing late normally excuse the employer from payment for unfinished work. this is not the usual position in a construction contract. .  3 All ER 492. where time is essential. would render the contract voidable. time was always regarded as of the essence of the contract in the sale of land. failure to complete by the specified date is a breach of a condition entitling the innocent party to treat the contract as repudiated. The question then is what governs whether or not time is of the essence in contracts. (Eggleston. Section 56 of the Contracts Act appears to follow the English law whereby the rules contained in the section are not different from the 15 16 Supra note 2. Sinnadurai (2003) noted as well that difficulties remain in determining when time would be regarded as of the essence of the contract. At common law. However. However.16 The common law rule has been assimilated by equity so that a court will examine the whole scope of the transaction to decide whether the parties really meant the time stipulated to be of the essence of the contract. When time is of the essence in a contract. The exceptions to the common law rule that ‘time is always of the essence of the contract’ were discussed by the House of Lords in United Scientific Holdings v Burnley Borough Council 15 and by the Court of Appeal in British and Commonwealth Holdings plc v Quadrex Holdings Inc.
firstly where the intention of the parties was such that the time was of the essence of the contract for the fulfillment of their respective obligations and secondly.18 The position is if in a contract in which time is of the essence. 18 See Lai Yew Seong v Wong Chieu Gook (1913) 1 FMSLR 12. or to treat is as still subsisting. Ismail bin Haji Embong v Lau Kong Han  2 MLJ 213. the surrounding circumstances and the nature of the contract to determine whether time was intended by the parties to be the essence Yeoh Kim Pong Realty Ltd v Ng Kim Pong  MLJ 118. If he treats it either expressly or by conduct as still continuing. HC. a party fails to perform it by the stipulated time. where the nature of the subject matter or the surrounding circumstances are such that the time specified for the performance is of the essence. Consequently he cannot claim the liquidated damages under the contract unless there is a provision as to the extension of time. Ayadurai v Lim Hye  MLJ 143. AIR 1922 PC 178. 20  3 MLJ 385. See also Jamshed Khodaram Irani v Burjorni Dunjibhai (1915) LR 43 IA 26 (section 55 of the Indian Contract Act is similar to section 56 of the Malaysian Act).20 Time. There is little difficulty in considering whether time is of the essence of a contract if there is an express provision in the contract itself stating that it is so. In contracts where the phrase ‘time is of the essence’ is employed. the contract exists but time ceases to be of the essence and becomes at large. is of the essence in two main situations. See also the Privy Council decision of Mohamed Habidullah v Bird & Co.17 position arrived at in common law.17 Section 56 is the most invoked provision of the Contracts Act dealing with time and the scope of this section has been considered in a number of cases. both parties must perform their respective obligations within the time stipulated. it is generally accepted that the parties in these cases have clearly intended that the provision dealing with time is an essential term of the contract. 19 Sim Chio Huat v Wong Ted Fui  1 MLJ 151. this cessation can be revived and so time can be restored to be of the essence by the innocent party serving a notice to the party in default giving a new date of completion. In such cases. Where there is no express provision in the contract making time of the essence.19 The law relating to time for performance under the Contracts Act was dealt with exhaustively by Visu Sinnadurai J in Abdul Rahim bin Syed Mohd v Ramakrishnan Kandasamy & Anor. 17 . However. the innocent party has the right either to rescind the contract. in a contract for the sale of land. the courts will then have to consider the nature of the property.
 2 MLJ 290. The general principles regarding time were also spelt out by Gill J in the case of Tan Ah Kian v Haji Hasnan. FC. as seen in the case of Ganam d/o Rajamany v Somoo s/o Sinnah22 that the mere stipulation of a date fixed for completion in a contract does not. 2004). where time was of the essence of the contract. . Chye Fook & Anor v Teh Teng Seng Realty Sdn Bhd24 is a case dealing with late completion of a building. The 21 22  MLJ 118. HC.  MLJ 175. In Yeoh Kim Pong Realty Ltd v Ng Kim Pong 21 time was not expressly stated to be of the essence. The nature of the property and the surrounding circumstances would still have to be considered in such cases. in a contract to construct facilities for a particular event such as a games village for a major sports event. It was also pointed out by the judge. Thus. make time to be of the essence of the contract. (Chow. 24  1 MLJ 308.23 There are three situations whereby time is of the essence of the contract: (i) where the parties have expressly stipulated in the contract that it shall be so. by itself. There are occasions where such stipulations in a contract document are intended to be literally construed. who had failed to perform the contract with sufficient promptitude. HC.18 of the contract. time must be taken to be of the essence of the agreement. 23  MLJ 400. In building contracts. time of the essence of the contract is an interesting stipulation encountered frequently. it is clear that the owner will be left with very benefit if the project is delivered after the dates set for the games. This stipulation is usually inserted by quantity surveyors or engineers in the preliminaries section of the bill of quantities or in some portion of the contract specification. (ii) where it was not originally stated to be but had been made so by giving reasonable notice to the other. and (iii) where from the nature of the contract or of its subject matter. time was of the essence of the contract in question. and on an ‘examination amongst other things of attendant circumstances’. It was held that considering the intention of the parties.
the employer forfeits whatever recourse under the contract. 2. However. In Hock Huat Iron Foundry v Naga Tembaga Sdn Bhd25 the Court of Appeal also considered the subject in relation to the provisions of Contracts Act 1950. particularly.4 Damages for Late Completion The contractor’s obligation to complete the works by the completion date is backed up by legal sanctions. and can only seek redress through restitution. including an action for damages. . sections 56 and 76 of the Contracts Act. any lateness in performance entitles the other party to determine the contract. where time is expressly or impliedly of the essence. In the circumstances. The position. the employer’s remedy for late completion will be an award of damages for breach of contract. as a result of the operation of section 56(1) of this Act and as set out in the earlier decision of Loke Yuen Cheng & Anor v Vintex Sdn Bhd26. In a detailed judgment. It is standard practice in building and civil engineering contracts to state in advance what the damages shall be for delay. is that where the parties to a contract clearly intends that time is to be of the essence of the contract. If the innocent party elects to exercise the option. Abdul Malek J dealt with relevant case law and statutory law on the subject. Thus. Under certain types of contract such as contracts for the sale of perishable goods.19 specific question before the High Court was whether the purchaser ‘could sue for rescission on the agreement [that] … as the house was not completed … [on] the completion date’. the effect is that the contract is annulled so that the situation is as though it had never existed. construction contracts very rarely fall into this category.  4 MLJ 169. and this is usually done by specifying a fixed sum of money to be due for every day. week or month by which the contractor fails to meet 25 26  1 MLJ 65. then the occurrence of any delay in performance would render the contract voidable at the option of the innocent party.
When the LAD are agreed. 1991). IEM Conditions of Contract cl 40. the employer’s only remedy for late completion by the contractor is a sum not exceeding the specified amount. PWD Conditions of Contract Forms 203/203A cl 40. 28 Damages for a contractor’s failure in breach of contract to complete on time are often subject of a provision for liquidated damages (Furst and Ramsey.A. See also Arab Malaysian Corpn Builders Sdn Bhd v ASM Development Sdn Bhd  6 MLJ 136.4.27 2. 27 at 535 (C.20 the prescribed completion date. Halsbury’s Laws of Malaysia (Building and Construction) also stated that generally. Liquidated damages provisions are in principle perfectly acceptable and they are to be encouraged as they enable the parties to know from the start as much as possible about the risks they bear. According to Murdoch and Hughes (2000). 28 Lombard plc v Butterworth  Q. contracts for construction works usually provide that in the event of the contractor’s failure to complete by the date specified for completion. Such sums are called liquidated and ascertained damages or LADs (Murdoch and Hughes. 2000). 27 .1 Liquidated Damages Delay in performance is treated as going to the root of the contract without regard to the magnitude of the breach. the contractor is to pay a specified sum or that the employer may deduct a specified sum from money due to the contractor.B. Most building contracts contain such a clause.). He does not have an See PAM Conditions of Contract (1998) cl 22. a claim for liquidated damages can only succeed where the contract makes express provision for it.
as the case may be. the party complaining of the breach is entitled. 30 Section 75 of the Act provides: When a contract has been broken. then no liquidated damages will be payable since there is then no date from which liquidated damages can run.21 option of claiming unliquidated damages. Should no date for Completion be inserted in the Appendix. whether or not actual damage or loss is proved to have been caused thereby. Linggi Plantations Ltd v Jagatheesan  1 MLJ 89. and in Malaysia ‘there is no difference between penalty and liquidated damages’. 29 . Thamesa Designs Sdn Bhd v Kuching Hotels Sdn Bhd  3 MLJ 25. 1999). 30 Maniam v The State of Perak  MLJ 75. or if the contract contains any other stipulation by way of penalty. the penalty stipulated for. the employer’s right to liquidated damages will be lost. See Sim Chio Huat v Wong Ted Fui  1 MLJ 151. if a sum is named in the contract as the amount to be paid in case of such breach. to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named or. There must be a definite date to act as a starting point and if the completion date has passed due to the default of the employer for which no extension of time is given by the architect. Section 75 of the Contracts Act 1950 deals with the effect of a sum named in a contract which is payable in cases of breach of contract.29 (Rajoo.
it is the employer. a contractor is under a strict duty to complete on time except to the extent that he is prevented from doing so by the employer or is given relief by the express provisions of the contract. The effect of extending time is to maintain the contractor’s obligation to complete within a defined time and failure by the contractor to do so leaves him liable to damages. to retain a defined time for completion 2.5 Extension of Time 2. either liquidated or general. to give the contractor relief from his strict duty to complete on time in respect of delays caused by designated neutral events It is a common belief in the construction industry that extensions of time are solely for the benefit of the contractor. time is put at large by prevention and the contractor’s obligation is to complete within a reasonable time. according to the terms of the contract. . to preserve the employer’s right to liquidated damages against acts of prevention 3. It is not the contractor who has most need of extension of time provisions. At face value by giving the contractor more time to complete the works and by reducing his liability for liquidated damages they do appear to be one-sided.22 2.1 Purposes of Extension Provisions According to Eggleston (1992). Therefore.5. Supra note 4. A string of well documented cases from Holme v Guppy 31 to Rapid Building v Ealing 32 confirm that the courts will not uphold liquidated damages where the employer has prevented completion on time unless 31 32 Supra note 3. In the absence of extension provisions. extension of time clauses have various purposes which are: 1. The contractor’s liability can then only be for general damages but first it must be proved that he has failed to complete within a reasonable time.
That is subject to the exception that the employer is not entitled to liquidated damages if by his acts or omissions he has prevented the main contractor from completing his work by the completion date: see. . since in the event of prevention or breach by the employer a contractual date for completion may be maintained and the liquidated damages provisions preserved. HL. 33 (1982) 20 BLR 1. Chow (2004) also pointed out that under English common law. If he fails to do so. Holme v Guppy (1838) and Wells v Army and Navy Cooperative Society (1902).23 there is express provision in the contract to extend time for the employer’s default. For an extension of time provision to be effective in such circumstances it must clearly give the means to extend the period for completion (Brewer Consulting. for example. These general rules may be amended by the express terms of the contract…’ Extension of time clauses are commonly entered into construction contracts essentially for the benefit of the employer. The courts have consequently ruled that they are to be interpreted contra proferentum against the employer. 2005). time extension provisions are regarded as being inserted for the benefit of the employer since they operate to keep alive the liquidated damages provisions in the event of delay caused by the employer’s acts of prevention. Lord Fraser’s comment in Bilton v GLC33 sums it up: ‘… The general rule is that the main contractor is bound to complete the work by the date for completion stated in the contract. he will be liable for liquidated damages to the employer.
1 Force Majeure The expression ‘force majeure’ is of French origin. it is crucial that the provisions should expressly allow for extensions in respect of delays arising from a breach or act of prevention caused by the employer. The time extension provision typically lists the common causes of delay in respect of which the employer accepts that time extensions may be granted. impediment. According to Chow (2004). A similar approach is used in clause 8.2. Both approaches should take into account the attitude of the courts in construing time extension clauses. was unforeseeable and was unavoidable in occurrence and effects (Eggleston.24 2. followed by a general “catch all” paragraph which is intended to bring within the ambit of the provisions events of delay which have not been specifically stated in the clause.5. alternatively. under clause 44(1) of the ICE Conditions of Contract (1999 Ed). prevention or default by the employer” and “other special circumstances of any kind whatsoever which may occur”. From the employer’s standpoint. ICE Conditions of Contract (7th Ed. 2. It needs to be shown that the event made performance impossible. The formulation adopted in the major standard forms such as the JCT Contract (1998). paragraphs (e) and (f) extend the power for extending time to cover “any delay. Thus. 1992). the expression force majeure was first used in clause 23(a) of the JCT 63 Form and has since been retained in successive editions of that standard form. Under the French Civil Code force majeure is a defence to a claim for damages for breach of contract. construction contract provisions may either stipulate a list of events in respect of which extensions of time may be granted or. it is specified as a .4(e) of the FIDIC Contract (1999). adopt a more general formulation. In the 1998 edition of the JCT Contract.2 Grounds for Extension of Time According to Chow (2004). 1999) and PAM 1998 is a combination of both approaches.5.
If so. It must be beyond the control of the relying party. and which it is not in his power to control…” It was held to include wars. strikes and inclement weather are already separately listed in the time extension provisions. which resides beyond human anticipation. . epidemics and strikes. The term itself is a curious French expression which is usually considered to cover a host of highly unusual and superhuman events.1 of the FIDIC conditions provided a more elaborate definition of this expression and defines force majeure as an “exceptional event or circumstance” which satisfies the following criteria: 1. the conceivable range of events must be a very narrow one and it is not surprising that there has been no reported case on the JCT contract where this ground for time extension has been considered. Events such as wars. so that it could be suggested that the expression as used in the JCT form must have been intended to provide for something else. 34 35  2 KB 714. but it is highly arguable that the original objective may have been as a general premise to cover any event. There is no direct authority on this point.25 “relevant event” for the purpose of time extensions under clause 25. The effect of the clause may vary with each instrument…35 Chow (2004) further noted that at first instance. In the classic case of LeBaupin v Crispin 34 . the court accepted that the “term is used with reference to all circumstances independent of the will of man. other than those specifically mentioned. Clause 19. Ibid. it may be difficult to appreciate the need for the JCT Contract to expressly include force majeure as a ground for time extension. but a cautionary note was struck in the judgment of that case on the interpretation of a force majeure clause: … [The force majeure clause] should be construed in each case with close attention to the words which precede or follow it with due regard to the nature and general terms of the contract.
rather than invoke the force majeure clause since this reduces the onus of proof and is likely to provide him with a more extensive range of reliefs.5.2 Variations and Extra Works Eggleston (1992) stated that when variations or extra works cause delay to completion.2. say a breach by the employer. the “other party” refers to the employer. or if there is no express provision to extend time. Having arisen. For example.26 2. The relying party could not have reasonably provided for the event or circumstances before entering into the contract. strikes and lockouts and natural catastrophes. 4. In the context of a construction claim advanced by the contractor. A force majeure event under the FIDIC Contract must therefore satisfy all the four conditions prescribed here. have the variations actually caused delay to completion? Are the extra works really extra? Could the contractor have accommodated them in his programme? Some of these matters have been considered previously and others are considered under particular forms but it is worth just noting here that extra quantities are not necessarily the same as extra works and in some forms of contract. . It is the following types of questions which give rise to arguments. the employer will have lost his right to liquidated damages. it is the contractor and not the employer who takes the risks on quantities. it is considered that the contractor will in most cases elect to sue for breach of contract. Clause 19. the relying party could not have reasonably avoided or overcome the said event or circumstance.1 also specifically lists down a number of situations which are deemed to be treated as force majeure which include wars. Chow (2004) therefore noted that the paragraph appears to envisage that where the claim arises from. the contractor will have a clear case for extension of time. 3. terrorism. 2. It must not be substantially attributable to the other party.
where plant and equipment have already been bought on site and these have been prepared to support the execution of a particular item of work.5. 2004). a contractor has to show. from site records.2. thereby necessitating a new and possibly less productive sequence of work. is the intensity of rainfall. To formulate a case for extension of time on the basis of exceptional rainfall.27 The particular situation where omissions of work may be a premise for a time extension should be noted. in so far as construction operations are concerned.37 It is suggested that this construction is consistent with the intent of this provision in the other standard forms as well. . it would be reasonable for the engineer to “take into account in deciding as to allowances for such delay the effect of other orders requiring omissions.” (Chow. 2. the predominant issue with weather conditions. so as to give rise to the delay and not whether the magnitude of the delay itself was exceptional. In construing the term “exceptional”. but in the South African case of Kenny and Hingles’ Trustee v Union Government36 . for instance. Such a situation may arise. In Malaysia. 37 Walter Lawrence v Commercial Union Properties (1984) 4 ConLR 37. Chaffer and Tassie v Richards (1905) 26 NLR 20. the number of days in a particular month in which the actual rainfall actually encountered exceeds a prescribed level and this is commonly referred 36 (1928) TD 272 at 289.3 Exceptionally Adverse Weather Conditions This ground of time extension is found in the provisions of most of the major standard forms. There is no direct English case authority on this point. The general formulation is that time may be extended only when the contractor can demonstrate that the weather conditions encountered could be properly described as exceptional”. consideration should be given as to whether the weather itself was exceptionally adverse or inclement. This item of work is then subsequently omitted. See also another South African case. it was held that where the language of a time extension provision empowered the engineer to assess the period of delay consequent upon the ordering of extras.
it is not sufficient for an applicant for time extension to merely show the incidence of wet days and hence. However.5. It is necessary to establish the link between the conditions and the progress of works. 2004). to ensure that time will not be set at large in the event of a late handover of site to the contractor. and in particular. the contractor is obliged to accommodate the restrictions that will impose. Holme v Guppy (1838) 3 M&W 387. the contractor is entitled to the whole of the site from the outset. but if the contract specifies phased release of the site. .28 to as the number of “wet days”. 2. Eggleston (1992) brought up the issue that whether or not failure by the employer to give possession of site at a time convenient to the contractor is an act of prevention will depend on the wording of the contract. Earth & General Contractors Ltd v Manchester Corporation (1958) 108 LJ 665. Next. the contractor compares the number of wet days encountered with the number of wet days which are indicated by statistical averages in meteorological records. adverse weather conditions.4 Late Possession of Site Under common law.2. 2004). Rapid Building v Ealing Family Housing (1984) 29 BLR 5. Exceptional rainfall conditions for a particular month are then established when the number of wet days actually encountered exceed the number of wet days recorded in these meteorological averages. most standard forms expressly includes this event as one of the grounds for time to be extended (Chow. If the contract simply states a date of possession of the site. 38 See Felton v Wharrie (1906) Hudson’s Building and Engineering Contracts (4th Ed) Vol 2.38 Consequently. an employer is treated to have committed a breach of contract if he fails to give timely possession of site. the contractor has to show that the nature of the construction operations being undertaken during the period of “wet days” in a particular month are indeed operations which are susceptible to the effects of these exceptional rainfall conditions (Chow. p 398.
To enable the works to proceed properly. Most time extension provisions provide for time to be extended where the architect or engineer fails to issue these instructions or drawings in a timely manner. Percy Bilton v GLC (1982) and Fairclough v Rhuddlan Borough Council (1985). An issue which is closely related to time extensions granted for 39 See North West Metropolitan Regional Hospital Board v Bickerton (1970).5. Peak v McKinney (1970). and however much forms of contract attempt to place responsibility for such subcontractors on main contractors. . it is very difficult for the employers to avoid sharing some of the responsibility for their delays and defaults.6 Delay in Approvals and Instructions The drawings and technical documents provided at the time of contract are frequently insufficient to enable the contractor to carry out all aspects of the works required under the contract.2. on basic principles delays caused by domestic sub-contractors do not give grounds for extensions of time.5 Sub-contractors According to Eggleston (1992).5.39 2. it is usually necessary for the architect or engineer to issue instructions or additional drawings during the course of the works. that could be a breach of contract with the potential to defeat the liquidated damages provisions unless there are extension clauses covering employer’s act of prevention.29 2. Nominated sub-contractors are the cause of many complex disputes. If the contractor is required by the terms of the contract to obtain approval to his subcontractors from the contract administrator and the approval is unreasonably delayed. the problems of subcontractor default will rest between the main contractor and sub-contractor. Unless there are express provisions in the contract to cover delays so caused or there are other provisions for extensions that can be interpreted to cover sub-contractors. with the employer bound to avoid delay in renominating and to allow time for rectification of faulty work.2. The burden of renomination after default is a heavy one.
1(c) of CIDB 2000.4.5. Most contracts require that the contractor should apply for the relevant approval or instruction at an appropriate juncture during the course of the works. In the case of the FIDIC Contract.30 delays in instructions is the date when the contractor should have contacted or applied to the architect or engineer for these instructions.5 of the FIDIC Contract (1999 Ed).9 of JCT Contract (1998 Ed).7(x) of PAM Form (2nd Ed) (1998). materials or goods43 Clause 25. 41 Clause 25.7(iv) of PAM Form (2nd Ed) (1998). 42 Clause 25. Opening up for inspection any work covered up or the testing of any work. 2. 40 . Clause 8.4.5 describes the condition under which this event may qualify for an extension of time under clause 8. clause 8.4.1(h) of CIDB 2000. Disruption arising from actions or policy changes of a government body or statutory organisation41 3.2. clause 8. 43 Clause 23.4(b). clause 24.10 of JCT Contract (1998 Ed). Clause 43(h) of PWD 203A and clause 24.4 of JCT Contract (1998 Ed).4(d) of FIDIC Contract (1999 Ed). Strikes and civil commotion which affect the works or affect the manufacture or transportation of goods for use in the works40 2.7 Other Commonly Stipulated Grounds The major standard forms of contract also allow for the time to be extended in respect of the following events: 1. clause 23. Unexpected market conditions which affect the contractor’s ability to procure labour or materials for the works such as a sudden shortage of aggregates or cement42 4.
44 2. clause 23. clause 8. a separate provision has to be inserted in the time extension clause to cater specifically to these delay events.” Such a provision is not intended to cover delays arising from events which are reasonably foreseeable by the contractor at the time of contract and which could be avoided by reasonable action on the part of the contractor. it would not cover. for example.5. the building contracts tend to invite the insertion (in the appendix to the building Clause 44(1)(e) of the ICE Conditions of Contract (7th Ed).6 Time at Large The standard form building and civil engineering contracts deal with the specification of time to complete in two different ways. On the one hand.4(e) of the FIDIC Contract (1999).2. insufficient manpower and a failure to plan the work properly (Chow. 2004). Thus. 44 .31 2. delay caused by the contractor’s financial stringency.7(xi) of the PAM Form (2nd Ed) (1998). There should also be no basis for time to be extended in respect of delays arising from events which are caused by the contractor’s want of competence or judgment. For this purpose.8 Causes beyond the Contractor’s Control A final remark should be made on the general category of events which comes frequently under a supposedly “catch all” or “umbrella” ground typically formulated as “any cause beyond the control of the contractor. where this is triggered by the actions of a third party on whom the contractor depends for financial support. From the authorities that a general expression like “causes beyond the contractor’s control” would not be sufficiently embracing to cover delays associated with some breach or act of prevention by the employer. These events include ineffective supervision.
1 Events Giving Rise to Time at Large According to Pickavance (2005). 2. The effect must be that the parties to the contract do not truly know their position. for example reference to an adjudicator. On the other hand. Provided always that the true position can be restored by the operation of other contractual machinery. the failure competently to put into effect the contractual machinery to extend the time for completion by the contract administrator is not sufficient to render the completion date unenforceable and time at large.45 (Pickavance. arbitrator or the court to open up and review the decision or absence of a decision. During the execution of the contract. in principle.32 contract) of a fixed calendar date for the handover of possession of the site to the contractor coupled with a fixed completion date by which the contract must be practically completed. the period between the two dates is described as the contract period which the contractor must carry out and complete the work. If the true position can be established by other contractual means then the breakdown is likely to be immaterial. It is only once the notice to proceed has been given that the contract period can commence and the date for completion can be calculated. 45 . circumstances may arise which render that completion date unenforceable. The date on which the notice to proceed may be given is then left open for a limited period of time. the failure of the contract administrator during the course of the contract will not set time at large. 2005). there are at least three possibilities as to how time may have become “at large”: Panamena Europea Navigacion (Compania Limitada) v Frederick Leyland & Co Ltd  AC 428. Of itself. There. the engineering contracts tend to stipulate that the work shall be completed within a specified number of days or weeks from the notice to proceed.6.
as a starting point. Where the provisions for extension of time have not been properly administered or have been misapplied 2.33 1. Gaymark Investments Pty Ltd v Walter Construction Group (1999) NTSC 143.46 3. (2005) 21 Const LJ 70. and to a lesser extent: 1. (1999) 16 BCL 449. Eggleston (1992) had the view that the circumstances of time becoming at large are usually where an act of prevention by the employer creates delay and that delay is not covered by an extension of time provision. There may not be a contract completion date simply because there was no contract. while it is normally the case that the date for the completion is stipulated by the terms of the contract. its proper revision under the contract or by collateral agreement. 2. the employer has in fact no power to extend time. . for example. There may be a contract completion date together with a number of employer’s risk events for which the contract makes provision to extend time but which have either become inoperable or do not apply to the event causing the delay to completion so that. in the circumstances. There may be a contract together with a number of employer’s risk events for which the contract makes provision to extend time but which cannot be applied because the draftsman has failed to specify the contract completion date or time for performance in the contract. Where there has been waiver of the original time requirements 3. The first two possibilities as to how time might have become at large require. that may not always be so. Where there has been interference by the employer in the certifying process 46 See. the assessment of a reasonable period for the works for which the contractor has contracted and.
2. No time or date is fixed by the terms of the contract by which performance must take place or be completed. The Employer has interfered in the certification process to prevent proper administration of the contract. Atkinson (2007) stated that the term “time at large” is usually used in construction contracts in the situation where liquidated damages are an issue. The time for performance has been fixed under the contract. but has ceased to apply either by agreement or by an act of prevention (which includes instructed additional work) or breach of contract by the Employer with no corresponding entitlement to extension of time.34 What is generally at stake in the matter of whether or not time is at large is the employer’s right to deduct liquidated damages for late completion. This right is lost completely if time becomes at large – the employer can still sue for general or unliquidated damages for late completion but regard will then be had to the contractor’s entitlement to a reasonable time. because there is no date fixed from which the liquidated damages can be calculated. An alternative situation is that the Employer is faced with a breach of contract by the contractor which would entitle to Employer to terminate the employment of the contractor and/or to bring to an end the primary obligations of the parties to perform. 3. Time is made at large in four situations: 1. If time is “at large” then it is argued that liquidated damages cannot be applied. but instead elects to continue with the performance of the contract. . In some situations the date for completion may be relevant to termination and the issue whether or not there has been a breach of contract by failure to complete. The Employer has waived the obligation to complete by the specified time or date. 4.
1. 47  34 ConLR 147. The last letter was not written in plain “take it or leave it” terms but held out the possibility of bettering the completion date. if the date is not fixed by a course of dealing between the parties. In the case of a contract under the Supply of Goods and Services Act 1982.6. .1 No Time or Date Fixed in the Contract As mentioned. but suggested that the situation be monitored and if it became possible to review the situation. (Atkinson. If no date or period is fixed by the contract then the objective intention of the parties must be ascertained. many construction contracts and standard forms of contract usually place an obligation on the contractor to complete the works by a specified completion date or within a specified period. without deciding. The last correspondence from Express Lift stated that it could see little possibility of improvement on the dates previously given. It was held that as a matter of construction of its express terms Express Lift made a contractual offer of the completion date which it consistently offered before and that offer was accepted. 2007). that based on the documents before him that it would be impossible for Express Lift to contend that a reasonable time for completion of the works would be any later than the date they had consistently put forward. In J and J Fee Ltd v The Express Lift Company Ltd 47 there had been correspondence between the parties on the date of commencement and completion. then there was a term implied that Express Lift would complete within a reasonable time. Nonetheless there were dates for commencement and completion as express terms of the contract. His Honour Judge Peter Bowsher QC stated that if he was wrong on that issue. He gave a provisional view.35 2. a term will be implied that the contractor’s obligation is to complete within a reasonable time (Section 14(1)).
a fault. 50 Barque Quilpue Ltd v Bryant (1904). where all three 48 49 Supra note 3.1. ‘the building owner cannot insist on a condition if it is his own fault that the condition has not been fulfilled’. a fresh contract could not be found and liquidated damages could not be applied (Brewer Consulting. As long ago as 1838 the court held in the case of Holme v Guppy 48 that where the contractor had been prevented from starting the works because of the activities of the employer's other workmen. At times the words are employed which suggest that any act or omission preventing performance will suffice: Dodd v Churton (1897). In other words of Lord Justice Denning in Amalgamated Building Contractors Ltd v Waltham Holy Cross Urban District Council49. 51  VR 391. per Lord Justice Vaughan Williams. “There is an implied contract by each party that he will not do anything to prevent the other party from performing a contract or to delay him in performing it.2 Time or Date Ceases to Apply by Acts of Prevention The prevention principle comes from a generally stated legal principle that a party cannot benefit from its own wrong. or even the ordering of variations and extras which might be fully contemplated by the contract. 2005). . Generally such a term is by law imported into every contract.6. Justice Brooking summarized the law as follows: A wide variety of expressions have been used to describe the act of prevention which will excuse performance. The prevention principle has a very long history in the common law. 396. Eggleston (1992) also mentioned that the principle of prevention is of general application in contracts and is to the effect that one party cannot impose a contractual obligation on the other party where he has impeded the other in the performance of that obligation. In SMK Cabinets v Hili Modern Electrics Pty Ltd51 Mr.  2All ER452 at 452 (CA).36 2.”50 An act of prevention may vary from an omission on the part of the employer. (1984) 1 Const LJ 159 at p.
Blackburn and Mellor J J.) p. Words used by Lord Denning (“his conduct – it may be quite legitimate conduct. 631 (acts or omissions) speaks of acts. such as ordering extra work”) appear in a passage cited with approval in the leading speech in the House of Lords: Trollope & Colls Ltd v North West Metropolitan Regional Hospital Board (1973). both statements are cited by Lord Thankerton in delivering the principal speech in Panamena Europa Navigacion (Compania Limitada) v Frederick Leyland & Co Ltd (1947). The expressions used by Salmon L J and Phillimore L R in Peak Construction (Liverpool) Ltd v McKinney Foundations Ltd (1970) are “fault” and “fault or breach of contract”. 700 refers to wrongful acts. .37 members of the Court speak of an act: Bruce v The Queen (1866). while Kelly C B and Channell B would ask whether performance has been prevented by a wrongful act. where the Court refers simply to prevention: Percy Bilton Ltd v Greater London Council (1982). say that no person can take advantage of the non-fulfillment of a condition the of which has been hindered by himself. Another phrase to be found is “act or default” in Amalgamated Building Contractors Ltd v Waltham Holy Cross Urban District Council (1952). whether or not in the exercise of a power conferred by the contract. Hudson Building and Engineering Contracts (10th ed. spoke of a wrongful act. It is worth noting the formulation of Davis J of the Supreme Court of Canada in Ottawa Northern and Western Railway Co v Dominion Bridge Co (1905). In the well know case of Roberts v Bury Improvement Commissioners (1870) two different statements appear. In Perini v Greater Vancouver Sewerage and Drainage District (1966) Bull J A with whose judgment Lord J A agreed. I interpolate the observation that any formulation must accommodate the case of the ordering of extras. whether authorized by or breaches of the contract but at p.
whether the contract did not make any express provision for extending time in such circumstances. From the cases illustrated it may be seen that it is generally first necessary to determine whether there has been a breach of contract on the part of the employer or some other positive act or omission thereby preventing the contractor from completing the contract work by the due date and secondly. Such an approach is based upon the proposition that by undertaking to complete the work within the time stated a contractor assumes the responsibility of surmounting all risks other than those constituting breaches of contract or fault by the employer. Contract nowadays generally contain extensions of time clauses drafted so as to cover the eventualities likely to constitute “acts of prevention” and are in many cases meticulous in their definition of the risks and responsibilities assumed by each party. The older cases were largely decided in relation to contract where little or no provision was made for extending the time for completion so as to keep alive the Contract Completion Date and thus preserve the right to liquidated damages.38 The editors of Building Law Reports when commenting on the Court of Appeal decision in Percy Bilton v Greater London Council52 expressed the matter in more general terms: “Act of Prevention” is not easy to define but historically it has come to mean virtually any event not expressly contemplated by the Contract and not within the Contractor’s sphere of responsibility. . 52  1 WLR 794. It is sometimes useful to consider this apportionment of risk in terms of the “fault” of one party or the other. It is submitted that in a modern contract such as the Standard Form of Building Contract the correct analysis of events which may delay completion should not be between “acts of prevention” and “other acts” but rather between matters for which the contractor in law assumes the risk and matters for which does not assume the risk. although “fault” is an emotive word.
Therefore. for reasons within the employer’s control. In that case. The application of the prevention principle is also famously illustrated by the case of Peak Construction (Liverpool) Ltd v McKinney Foundations Ltd. owing to the presence of squatters. therefore altered from one of completing by the contract completion date to one of completing within a reasonable time and the employer lost its right to levy liquidated damages. time becomes at large and the employer will not be entitled to claim liquidated and ascertained damages for the late completion. under most standard forms of contract. the contractor is prevented from completing by the contract completion date. the employer was unable to give possession of site to the contractor on the due date. There is no provision in JCT 63 for extension of time for late possession. According to Pickavance (2005). However. in such a situation the employer will no longer be entitled to demand completion by the contractual date. prevents the contractor from achieving that date. in Rapid Building Group v Ealing Family Housing53 heard before the Court of Appeal in 1984 (involving a development under JCT 63) there was no applicable clause permitting the employer to grant an extension of time. Time is then said to be “at large” as a result of the effect of what is known as the prevention principle as described earlier.54 This was an action by the contractor against a nominated subcontractor in which the contractor was employed the local authority (employer) for the erection of high-rise buildings 53 54 Supra note 4. the employer can no longer insist upon completion by that date and the contractor is then left without a firm date by which to complete. (1970) 1 BLR 111. . through its acts or omissions.39 An example of the prevention principle operating within the construction industry is where the contract provides a date for completion of the works but the employer. The contractor was therefore able The contractor’s obligation was successfully to argue that time was at large. Except to the extent that the contract provides otherwise. the employer is provided with the power to extend the time for completion in the event of the occurrence of one or more of the events listed as grounds of extension of time in the contract. in the event that.
an expert was not engaged until some six months later. in turn. the employer claimed liquidated damages from the contractor who. The Court of Appeal found that. His recommendations were eventually put into effect some ten months after the faults had first been discovered and the piling was not completed until 58 weeks after the work had been suspended. As a result of the subsequent delay to completion. an extension of time clause should provide. the employer can insist on compliance with the condition if it is partly his own fault that it cannot be fulfilled. I cannot see how. time was said to be “of the essence” without any provision for the contract period to be extended for acts or omissions of the employer that might interfere with the works. claimed the same liquidated damages from the nominated subcontractor. expressly or by necessary . because of delay on the employer’s part. because part of the period of delay to completion had been caused by the employer itself and there was no clause in the contract between the contractor and the employer that enabled the employer to extend time for the effect of its own failures. In the contract between the contractor and the employer. If the employer wishes to recover liquidated damages for failure by the contractor to complete on time in spite of the fact that some of the delay is due to the employer’s fault or breach of contract. the clause does not bite. as in the present case. serious faults were discovered in the piles and the work was suspended pending investigation and repair. In explaining the application of the prevention principle in this case Salmon LJ said: A clause giving the employer liquidated damages as so much a week or month which elapses between the date fixed for completion is usually coupled. in my view. During the course of the works. However. there was then no date by which the contractor was obliged to complete and hence there was no enforceable completion date from which liquidated damages could be calculated. with an extension of time clause…If the failure to complete on time is due to the failure of both the employer and the contractor.40 for which the nominated subcontractor was required to carry out the piling. in the ordinary cause.
Consequently. the expression “or other causes beyond the contractor’s control” did not extend to include the employer’s failure to afford timely site possession nor his failure to furnish drawings at the appropriate time. for an extension on account of such fault or breach on the part of the employer. As it turned out. The court ruled that while the time extension provisions were able to deal with delays generated by sub-contractors. could not operate to retain the operability of the liquidated damages provision. unless the works were delayed by variations.41 interference. Again. 55 (1902) 86 LT 764. the time extension provision could not be held to cover these acts of prevention and. This decision was cited with approval by the Court of Appeal of British Columbia in Perini Pacific Ltd v Greater Vancouver Sewerage and Drainage Board (1966). The contractors were able to show that the delays were also caused by late site possession. although it was forcefully argued on behalf of the employer that the effect of the employer’s act of prevention only accounted for 45 days out of the total delay of 99 days. In Wells v Army and Navy Cooperative Society55 the contractors undertook to complete a building contract within a year. sub-contractors. . hence. “or other causes beyond the contractor’s control”. there was a delay in completion by one year. force majeure or other cause beyond the control of the contractor” similarly would not cover delays caused by the employer’s delivery of certain machinery in a defective condition. The contract conditions provide that the decisions of the employer as to time extensions and the determination of delays were to be final. The employer granted a three-month extension in respect of that part of the delay which was attributable to sub-contractors. lockouts. where it was decided that an extension of time clause which provided for time to be extended on account of “extras or delays occasioned by strikes. delay on the part of the employer in furnishing drawings and additional works. no liquidated damages could be recovered.
Additional work was ordered which had the effect of delaying completion. Bilton v Greater London Council (1982) 20 BLR 1. Trollope & Colls Ltd v NW Metropolitan Regional Hospital  1 WLR 601 (HL). Murdoch v Lockie (1897) 15 NZLR 296. See also Thornhill v Neats (1860) 8 CB (ns) 149. There were the usual provisions for the imposition of liquidated damages in the event of delay in completion. a building contract permitted extra work to be ordered during the course of the contract. he is not liable in law for that default. Cf Tew v Newbold-on Avon School Board (1884) 1 C&E 260... he is thereby disentitled to claim the penalties for non-completion provided for by the contract.. 57 56 .56 In that case. thereby enabling the liquidated damages clause to be kept alive.42 The operation of prevention principle was also clearly demonstrated in the classic case of Dodd v Churton. SMK Cabinets v Hili Modern Electrics  VR 391 (Victoria Full Court). HL.  1 QB 562. In his judgment Lord Esher MR stated the position under common law as follows: The principle is . to die effect that if the building owner has ordered extra work beyond that specified by the original contract which has necessarily increased the time requisite for finishing the work. Russell v Viscount Sa da Bandeira (1862) 13 CB (NS) 149. Westwood v Secretary of State for India (1863) 7 LT 736. The reason for that rule is that otherwise a most unreasonable burden would be imposed on the contractor.. but there was no express provision to enable time to be extended. The employer attempted to impose liquidated damages on the period of delay after an allowance of a fortnight had been made for what he considered was the appropriate portion of the delay caused by the additional work. Meyer v Gilmer (1899) 18 NZLR 129. 566. The delay was attributed in part to his act of ordering additional work but there was no operative time extension provision in the contract which would have permitted for the completion time to be extended. The court ruled that the employer was not entitled to claim any liquidated damages. and accordingly a well established rule has been established in cases of this kind . that. when one party to a contract is prevented from performing it by the act of the other. 57  1 QB 562 (CA).
58 the plaintiff agreed to supply a Rolls Royce motor car chassis and to build a body on it within seven months. So. and on the facts the notice was reasonable.  EWHC 725 (TCC). After waiving the initial stipulation as to time. no new completion date was set and. for example. where the employer.3 Waiver Pickavance (2005) asserted that apart from the circumstances in which there is no specified time. but the defendant waived the original delivery date and new dates were promised and agreed. The car was not delivered within the time specified and was not completed until some months later when the defendant refused to accept it. in Charles Rickards Ltd v Oppenheim.59 Astea was a provider of software to Time Group. whatever that happens to be in the circumstances. in March 2001. faced with a breach of contract by the contractor which would entitle the employer to terminate the employment of the contractor and/or to bring to an end the primary obligations of the parties to perform. the defendant gave written notice to the plaintiff stating that. there is no power to vary it. The dates passed. the defendant was entitled to give reasonable notice making time of the essence again. That is the circumstance in which the employer has waived the obligation to complete by the specified time or date or. instead elects to continue with the performance of the contract. he would not accept it. in the case of Astea (UK) Limited v Time Group Limited. four weeks away. Eventually. then performance must be achieved within a reasonable time. there is one other situation in which the contractor may not have a fixed date by which it must complete. For example. or in which.1. It failed to complete the work by the agreed delivery date. Astea had agreed to complete performance of its services by the end of October 2000 or by 6 November 2000 (the facts seemed unclear). The Court of Appeal held that he was justified in doing so. .6.43 2. unless he received the car by a firm date. whilst there may be a specified time. Time Group 58 59  1 KB 616. Where a new date is not stipulated. which was a manufacturer and retailer of personal computers.
and is either no longer capable of being achieved or is not likely to be achieved. its purpose is not achieved. as a result. The circumstances will be rare.60 It was common ground that strict compliance with an agreement to complete by the end of October 2000 or by 6 November 2000 had been waived by failure to treat such failure as repudiatory and that Astea’s obligation thereafter was to complete within a reasonable time.4 Failure of Contractual Machinery According to Atkinson (2007).44 subsequently claimed the contract had been repudiated and terminated the contract. His Honour Judge Humphrey Lloyd stated that this could for most practical purposes be equated to interference by a contracting party in the process whereby the other is deprived of a right or benefit. if the time or date for completion is effected by events which entitle the contractor to an extension of time. It was held that a breakdown of the contractual machinery occurs when. nor that any notice had been given making time of the essence of the contract in relation to Astea doing something by a date proximate to March 2001. BRL was awarded the contract for the construction of a new golf course on a reclaimed landfill site under an amended ICE 5th Edition.1. without material default or interference by a party to the contract. One issue was whether the contractual machinery had broken down and if so the effect. it was just the date when Time Group’s patience expired. In Bernhard’s Rugby Landscapes Ltd v Stockley Park Consortium (No 2) . Reference was made to the decision in It was not contended that it had been expressly agreed that Astea would do anything by a date proximate to March 2001. 60 . then time is at large. the machinery is not followed by the person appointed to administer and operate it and. but the contractual machinery can no longer operate. Examples were the failure of an employer to reappoint an administrator or certifier on the resignation of the previously appointed person or where that person fails or is unwilling to do his duty and the Employer will not take steps to rectify the position.6. 2.
7 Conclusion Colman J stated in the case of Balfour Beatty Building Ltd v Chestermount Properties Ltd62 that: In the absence of an express provision. completion date and liquidated and ascertained damages code was displaced by a general contractual duty to complete the works within what in all the circumstances was a reasonable time from the date of the act of prevention failing which the contractors would be liable for unliquidated damages for breach of contract in failing to complete within a reasonable time. If the true position is or can be established by other contractual means then the breakdown is likely to be immaterial even when the result of the breakdown is that one party does not obtain the contractual right or benefit which would or might otherwise have been established by the machinery.45 Panamena Europea Navigacion v Frederick Leyland Ltd61. no such new date can be fixed and the contractor’s duty then is to 61 62  AC 428. . In the absence of any agreed contractual mechanism for fixing a new date for completion. provided that the true position can be restored by the operation of other contractual machinery. the consequence of the occurrence of an act of prevention (in this case the giving of a variation instruction after the most recently fixed completion date) was that the entire extension of time. 2. 62 Build LR 1. It was held that noncompliance with the machinery by the administrator was not in itself sufficient: the effect must be that either or both of the parties to the contract do not in consequence of the breakdown truly know their position or cannot or are unlikely to know it.
he will be liable for liquidated damages to the employer.46 complete the works within a reasonable time. These general rules may be amended by the express terms of the contract. he will complete within a reasonable time despite a protracted delay if the delay is due to causes outside his control. That is subject to the exception that the employer is not entitled to liquidated damages if by his acts or omissions he has prevented the main contractor from completing his work by the completion date 3. The general rule is that the main contractor is bound to complete the work by the date for completion stated in the contract. such as extension of time clauses. 2. . 2005). If he fails to do so. In such circumstances. liquidated damages and extension of time clause are concluded below: 1. The question of time being at large and the relationship between the time for completion. time is said to be at large (Chappell. Provided that a contractor has not acted unreasonably or negligently.
the Sale of Goods Act . In the nineteenth century and earlier. such as sale of goods and bills of exchange.1 Introduction The Concise Oxford Dictionary (10th edition) by the Oxford University Press defines the word “reasonable” as fair and sensible. A straightforward instance of this type of term is to be found in the field of sale of goods. and as much as is appropriate or fair. as Judge Peter Bowsher QC remarked in Barratt Southampton Ltd v Fairclough Building Ltd (1988): These terms now have the status of standard terms of contract upon which everyone is deemed to contract unless express terms are agreed to the contrary. by way of judicial legislation. Where there is a contract for the sale of goods.CHAPTER 3 REASONABLE TIME 3. There is little to be learned from them when considering what terms should be implied into a modern commercial contract falling outside those old cases or the consolidating statutes into which they have been incorporated. the courts imposed implied terms on the parties to all contracts of certain types. Such implied terms have been consolidated by statute and.
the contractor is expected to complete the works by the “due date”. before the court arrives at this inference. but also to contracts where specified time has been lost and reasonable time substituted. it must consider the contract as a whole and the circumstances surrounding it.. in this contract.63 However. a contractor cannot maintain that he is entitled to complete the works within a reasonable period after the date fixed65 (Chow. Vaughan Williams LJ said: “. to be done within a reasonable time. (Powell-Smith et al. I agree that generally such a term is by law imported into every contract.64 In such a situation. 65 See: Raineri v Miles  AC 1050 (HL). the court may be prepared to infer that the parties intended the works to be completed within a reasonable time. if no time is specified. Contracts whereby time 63 64 See: Charnock v Liverpool Corporation  1 WLR 1498 (CA).” Where the construction contract does not expressly prescribe the time within which the works are to be completed.. for example that the goods will be reasonably fit for any purpose made known to the seller. Where a completion date is clearly specified in the contract. cf Amherst v James Walker  Ch 305 at 315 (CA). 1999) In Barque Quilpue Ltd v Brown  2 KB 264.48 1979 implies various terms into the contract. 2004). In each of these cases that may be called an implied contract. A similar term will be implied in contracts for the supply of a service or contracts for work and materials by section 4 of the Supply of Goods and Services Act 1982. See: Greater London Corporation v Cleveland Bridge and Engineering (1984) 34 BLR 57. in the same way as you import into every contract a stipulation that the various things which are to be done by the one party or the other are. there is an implied contract by each party that he will not do anything to prevent the other party from performing the contract or to delay him in performing it. as in every other.. . The principles of reasonable time apply not only to contracts where time for completion has not been specified in the first place.
49 for completion is not specified are very common in construction and may indeed form the majority. This is because when the average householder employs a builder to fit new windows, erect a porch or decorate the bedrooms, he pays most attention to the price and the written quotation but beyond that the contractual details are frequently left open. Where there is a formal contract and time is at large the defunct extension of time provisions may serve well as some guide as to what is reasonable time. Thus, extra works, exceptional weather, strikes etc., might all be taken into account. With or without a formal contract it might be appropriate to look at the production capability of the contractor, his management and financial resources, and his other contractual commitments, particularly if known to both parties (Eggleston, 1992).
It has been seen that an obligation to complete within a reasonable time sounding in damages arises either because the contract is silent as to time, or because the specified time has ceased to be applicable by reason of some matter for which the employer is responsible. It remains to consider what is a reasonable time (Wallace, 1995).
According to Davies (1989), at the turn of the century the general rule of law as it then stood was that any act necessary to be done by either party in order to carry out a contract must be done within a reasonable time. The principle was interpreted that except where time was of the essence of the stipulation, a breach of contract was only committed in the case of unreasonable delay in the performance of any act agreed to be done. For example, where time was not essential, a party failing to complete a sale of land on the day fixed by the agreement did not commit a breach of contract either in equity or at law; it was only on failure to complete within a reasonable time after that day that the contract was broken.
50 However, by the middle of the century it was found that whether or not time was of the essence, anyone who was actually injured by the breach of a time stipulation could recover damages. In other words, a breach of a contractual
stipulation as to time which is not of the essence of a contract would not be treated as a breach of a condition precedent to the contract, that is as a breach which would entitle the innocent party to treat the contract as terminated or which would prevent the defaulting party from suing the specific performance. Nevertheless, it was a breach of the contract and entitled the injured party to damages if he had suffered damage.
The current view of the law with regard to time within all contracts may be summarized as follows. Time will not be considered to be of the essence unless:
1. The parties expressly stipulate that conditions as to time must be strictly complied with
2. The nature of the subject matter of the contract or the surrounding circumstances show that time should be considered to be of the essence
3. A party that has been subjected to unreasonable delay gives notice to the party in default making time of the essence
In mercantile contracts, that is contracts which deal with commercial matters, building contracts being analogous to them, time will be considered of the essence out of practical necessity. Time is of the essence in building contracts because, for example, the landowner has some use for the building on a specific date.
What then is the effect of the term ‘reasonable time’? According to Davies (1989), what is a reasonable time may not depend solely upon the convenience and financial interests of the contractors. No doubt, it is in their interest to have every detail ‘cut and dried’ on the day a contract is signed, but a contract may not
51 contemplate that. Rather, it may contemplate further drawings and details being provided. The architect or engineer is to have time to provide them which is
reasonable having regard to the point of view of him and his staff and the point of view of the client as well, as the point of view of the contractor.
Where the time for completion is not given in the contract documents, the Supply of Goods and Services Act 1982, Part 2, section 14(1), provides for a term to be implied that the work will be carried out within a reasonable time. However, if parties to a contract were told by the client the contract completion date because it had been left out of the contract documents, such evidence may not be admitted, particularly where to put in the date would lead to a severe liquidated damages clause being brought into operation. In other words, as a general principle, where a
complete blank is left in a material part of the contract evidence is not admissible to fill it.
According to Wallace (1995), it has been seen that an obligation to complete within a reasonable time sounding in damages arises either because the contract is silent as to time, or because the specified time has ceased to be applicable by reason of some matter for which the owner is responsible. It remains to consider what a reasonable time is. Reasonable time is primarily a question of fact and must depend on all the circumstances which might be expected to affect the progress of the works. There are few, if any reported cases in England directly involving a typical building or engineering contract, but it is suggested that certain questions require to be answered before a reasonable time can be properly assessed.
Wallace (1995) further elaborated that in the first place, when arriving at a reasonable time in “ordinary circumstances”, the parties may or may not have contracted with the particular resources and capacity of the particular builder in mind. Thus, an owner may have deliberately chosen a small local or jobbing builder, with limited resources of capital, plant and labour, to build his house, in the hope of getting a cheaper or better quality job while sacrificing speedy completion. On the
since. though for that reason outside the main contractor’s direct personal control. and in the latter objective. it is submitted that the tendency of the courts should be not to excuse the main contractor from meeting his main contract obligation in any case where delay is caused by some act or omission within the subcontractor’s control. a builder with limited resources might tender for a large contract in competition with more substantial contractors and give no indication of his inability to carry out the work as rapidly as them. While it may be that most factors beyond the builder’s control will excuse him. follow that a contractor’s inability to obtain sufficient labour in competition with other contractors in the district would excuse him. a nonspecialised labour force. it may be a question whether the parties contracted with a builder’s other commitments in mind. All 66 See Hydraulic Engineering Co Ltd v McHaffie. Again. it would not. In approaching this question. it is suggested. . (1878) 4 QBD 670. whether nominated or not. it should be borne in mind that with the increasing degree of specialist and sub-contracted work in the building industry. Goslett & Co. is. the direct responsibilities of the main contractor have become correspondingly limited to the provision of a site-organisation. warranting that he has or will have at least these available in sufficient quantity for due performance of his obligations. In the case of subcontractors of all kinds. Thus. by entering into the contract. it is possible that expressly or impliedly the parties will have contracted with a particular factor in mind. 66 A party may have expressly or impliedly warranted or discounted his ability or capacity to maintain progress in a particular situation or at a particular speed. whereas there is little doubt that allowance would be made for delay due to an unexpected strike. and materials and plant. in effect. who in law is the contractor’s agent for the purpose of carrying out the works. in such a case.52 other hand. so that in most cases the builder. the contractor will or should have his remedy against the subcontractor. whether nominated or otherwise. and might well result in the owner failing to recover his own loss whereas the contractor might still be able to recover any loss he personally might have suffered at the hands of the subcontractor. In the former case the test might well be subjective. Any tendency to excuse the main contractor would in effect be an invitation to subcontractors to default on their obligations.
the list of factors tendered by Diplock J in his judgment cannot. Whether the details requested relate to variations 5. The order by which the works were to be carried out and approved by the engineer 3. additional drawings and information. such a state of affairs could not have been contemplated at the time of the contract. These include: 1. 67 (1958) 5 BLR 34. Diplock J ruled that what was a reasonable time did not depend solely on the convenience and financial interests of the contractor. it does serve to indicate the wide range of factors which have to be considered when determining the question of “reasonableness” with respect to the timing of instructions. He then proceeded to hold that what was a reasonable time was a question of fact to be determined with reference to all the circumstances of the case. 1995). on any stretch of imagination. The contractor’s requests for particular details 4. However. In Neodox Ltd v Swinton and Pendlebury Borough Council67 the contractor alleged that there was an implied obligation on the part of the employer to provide all necessary instructions and details “in sufficient time to enable the contractor to execute and complete the works in an expeditious and economic manner and/or in sufficient time to prevent the contractor being delayed in such execution and completion”. before considering the actual postcontract circumstances (Wallace.53 these are matters which will. The length of the contract period Admittedly. no doubt. According to Chow (2004). . be considered to be exhaustive. Considerations of the employer’s engineer and his staff 2. He observed that while it may appear to the contractor that it is in his interest “to have every detail cut and dried on the day the contract is signed”. be taken into consideration when making the initial “ordinary circumstances” assessment. the test of “reasonableness” is sometimes construed as being synonymous with the convenience and economic interest of the contractor.
1 CB (NS) 110.3 Statutory Provisions that Apply the Term “Reasonable Time” 3. the statute applicable to sale of goods in Peninsular Malaysia is the Sale of Goods Act 1957 (Revised 1989). 70 Supra note 66. including the delivery of goods. the ability of the contractor to perform68. these two states are bound by statute to continue to apply principles of English law relating to the sale of goods.70 3. such as the nature of the works to be done. the time necessary to do the work. and the time which a reasonably diligent producer of the same class as the contractor would take. the seller is bound to send the goods to the buyer but no time for sending them is fixed. the seller is bound to send them within a reasonable time (36(2)). that ‘the law to be administered shall be the same as would be administered in England in the like case at the corresponding period’.1 Sale of Goods Act 1957 (Revised 1989) According to Vohrah and Wu (2003). Lyle Shipping Co. the proper use of customary appliances69. . The model of the local Sale of Goods Act (SGA) was the English Sale of Goods Act of 1893 which is re-enacted almost in its entirety with some minor modifications such as the numbering of the provisions. Consequently. Demand or tender of 68 69 Attwood v Emery (1856). 26 LJCP 73. There is no equivalent statute for the states of Sabah and Sarawak and the law in these two states is governed by section 5(2) of the Civil Law Act 1956 which provides.3. Chapter IV of the SGA deals with the performance of the terms of the contract. among others. Gill (1969) stated that all the circumstances of the case should be taken into consideration.54 In calculation of reasonable time. v Cardiff Corporation  2 QB 638. Where under the contract of sale.
3. What is a reasonable time is stated in section 14(2) to be a question of fact (Robinson et al. Assuming that a seller is bound to make delivery under the contract and he requests the buyer to take delivery.44). Section 14 of the Act mentioned that where the time for performance has not been fixed. This does not affect the seller’s right for damages under the contract where the neglect or refusal of the buyer to take delivery amounts to a repudiation of the contract (s.55 delivery may be treated as ineffectual unless made at a reasonable hour. What is a reasonable hour is a question of fact (36(4)). Malacca.26).. .2 Supply of Goods and Services Act 1982 (UK) In Singapore. The buyer is liable to the seller for any loss occasioned by his neglect or refusal to take delivery. Penang. a term is implied for performance ‘within a reasonable time’. the (UK) Supply of Goods and Services Act 1982 is applicable and gives statutory status to rule that largely existed in common law. Where delivery is delayed through the fault of either seller or buyer. Sabah and Sarawak. the goods are at risk of the party at fault as regards any loss which might not have occurred but for such fault (s. except for Part II). and to pay a reasonable charge for the care and custody of the goods. 1996). 3. and the buyer does not respond within a reasonable time after such request. mirroring the Sale of Goods Acts (in Singapore. The 1982 Act extends the general philosophy of implied warranties as to standard of performance to contracts for services and to the transfer of goods under other contractual arrangements such as building contracts.
3. This provision provides that a buyer notify the seller “within reasonable time” after he discovers or ought to have discovered that the goods do not conform to the contract. and assess whether the term is an autonomous term applied uniformly. The aim of the determination of "reasonable time" in Article 39(1) will be to establish a pattern to the application of the provision. 2003). Article 38 prescribes a duty for the buyer to inspect the goods delivered to him within a short period. these two provisions are closely entwined. The Article 38 examination need not be carried out immediately after the delivery of the goods . The United Nations Commission on International Trade Law (UNCITRAL) has drafted a convention to replace the Hague Conventions and it adopted at a conference in Vienna in 1980 as the Convention on Contracts for the International Sale of Goods. as this is a uniform law which must be interpreted and practised uniformly. it is only related to the time of delivery via Article 38.56 3. Since Article 39(1) relies not only on the time of discovery of non-conformity but also on the time a buyer “ought to have discovered it”. It comes into operation only when the necessary number of ratifications has been received (Vohrah and Wu. Article 38 is prefatory to Article 39. This relationship with Article 38 usually determines precisely from when the reasonable time period is to be measured: as the time-frame of reasonable time pertains to the period after the non-conformity is discovered (or ought to have been discovered).3 International Sales Two international conventions referred to as the Hague Conventions 1964 governs contracts for the sale of goods between parties residing in different countries. Andersen (1998) presented a paper that focused on the meaning of the term "reasonable time" as understood by Article 39(1) of the 1980 United Nations Convention on Contracts for the International Sale of Goods (referred to as the CISG or the Convention). The objectivity of a term is especially important where the CISG is concerned. Indeed.
While the purpose of the provision would seem to imply that the time-frame should be reasonable for the seller whose interests it protects. Sales of Goods Act 1957. a more subjective and fair solution can be reached in each individual case. The influence of some aspects must be considered legal misapprehensions in international trade rather than factors of reasonableness. Not all factors are suitable for influencing the time-frame in question.4 Conclusion The word “reasonable time” is found in. 3. what if these factors include purely domestic aspects? Many determinations of reasonable time glean their identity from the international practice of Courts and Tribunals when determining “reasonable time” and it is certainly here that the key is to be found. the practitioner should be aware that a wide range of factors does not mean all factors. Supply of Goods and Services Act 1982. This term is also found in construction contracts. For instance. By taking “a wide range of factors” into account. and thus the reasonableness of the time-frame in both the seller's and the buyer's point of view. the fact that it represents a flexible compromise in the interests of the buyer would outweigh this consideration. . It is the actual application of the provision which ultimately defines it. but hurriedly according to the objective circumstances of the case. But when applying this interpretation to a particular case.57 (although this is recommendable to avoid all doubts) nor within a set time-frame. United Nations Convention on Contracts for the International Sale of Goods and Landlord and Tenant Act 1988. among others. contracts of sale and purchase of land and charterparty.
58 According to the Law Dictionary. . and to make various motions. reasonable time is a subjective standard based on the facts and circumstances within a particular case. the term applies to the amount of time in which to accept an offer. to inform an insurance company of an accident. to inspect goods prior to payment or acceptance. the term may also refer to the time allowed to set aside a default judgment. to await performance by a party who repudiates a contract or the time in which a seller may substitute conforming goods for goods rejected by a buyer as non-conforming. If not governed by statute. Despite its subjectivity. to file certain claims. with applicability in a variety of contexts. it can be seen that this term is widely used and should therefore be studied in depth. Within commercial law.
C. 654. & G. per Lord Denman.CHAPTER 4 REASONABLE TIME WHEN TIME IS AT LARGE 4. in a building contract to perform a work where no particular time is specified within which the work is to be completed. 593. & El. this chapter will identify and determine the meaning of “reasonable time” when time is at large. Those meanings are based on decided court cases. an agreement to complete within a reasonable time will be implied and a reasonable time for completion will be allowed.1 Introduction The preceding chapter elaborated on reasonable time and as Gill (1969) puts it. 12 Ad. which mainly were held under England law and laws in other Commonwealth countries. B.68 The question as to what is a reasonable time is one of fact69 and will be addressed in the discussion below. 6 Man. J. 68 69 Startup v Macdonald (1843). Hence. Fisher v Ford (1840). per Rolfe. .
a consignee. These cases are discussed in detail to give a background of the cases and then what the judges say about reasonable time in such cases. In this case. two on carriage of goods through railway and the remaining were contracts of sales of goods. . 4. The obligation is then to complete the works within a reasonable time. through the analysis of courts’ judgments. the meaning as to “reasonable time” can be divided to reasonable time where no time for completion is specified in the contract and reasonable time where the stipulated date has ceased to be applicable by reason of prevention or breach.1 Reasonable Time Where No Time for Completion is specified in the Contract/Contract is Silent as to Time Six of the ten cases are cases whereby the time for completion is not stipulated in the contract.2. 4. three of them were involving construction. two involving shipping. One well-known case is Pantland Hick v Raymond & Reid70.60 A total number of ten cases centered on what is a reasonable time were studied. and 70  AC 22.2 Reasonable Time when Time is at Large As have been reviewed. time at large occurs when no time of completion is specified in the contract/where the contract is silent as to time and where the stipulated date has ceased to be applicable by reason of prevention or breach. and supply of goods and services. Therefore. upon whom rested the contractual obligation to unload the appellant’s vessel.
imply that in those circumstances. The respondents argued that the test to be applied is what was reasonable under existing circumstances assuming that. fix any time for the performance of a contractual obligation. and to the extent that the respondents had to provide labour. In the case of other contracts the condition of reasonable time has been frequently . argued that it had discharged a vessel within a reasonable time having regard to the fact that there had been a single cause of delay. being a strike of dock workers over which the consignee had no control and which prevented performance of the contract. of course. they must be responsible if the discharge is delayed this point. and is not confined to contracts for the carriage of goods by sea. Lord Herschell LC stated: The only sound principle is that the ‘reasonable time’ should depend on the circumstances which actually exist. In the same case Lord Watson said: When the language of a contract does not expressly. have not been caused or contributed to by the consignee. the law implies that it shall be performed within a reasonable time. they were not due to any act or default on the part of the respondents.61 where no time for discharge was stipulated. in so far as they involve delay. The appellant contended that the test is what time would have been required for the discharge of the vessel in ordinary circumstances. or by necessary implication. in so far as the circumstances were extraordinary. If the cargo has been taken with all reasonable dispatch under those circumstances I think the obligation of the consignee has been fulfilled. I. The rule is of general application. When I say the circumstances that actually exist.
by a charter a cargo was to be “discharged with all reasonable dispatch as customary”. having done their best to procure the appliances that were customarily used for discharging such a ship. but only within a time which is reasonable. It was held by the Court of Appeal. looking at all the circumstances of the case. by an unavoidable obstruction on their line. . but owing to the stress of work. under an agreement with the defendants. In the case of The Lyle Shipping Company Ltd v The Corporation of Cardiff72. and he is not responsible for the consequences of delay arising from causes beyond his control. and has invariably been held to mean that the party upon whom it is incumbent duly fulfils his obligation. Without any negligence on the part of the charterers. The obstruction was caused by an accident resulting solely from the negligence of another company who had. sanctioned by act of parliament. in the absence of a special contract. The custom at the port was to discharge into the railway wagons. The defendants. It was held in this case of Taylor v The Great Northern Railway Company71 that the defendants were not liable to the plaintiff for damage to his goods caused by the delay. were prevented. and a consequent deficiency in the number of wagons available.  2 QB 638. A common carrier of goods is not. running powers over their line. and having used them with proper dispatch. Smith LJ stated: Now. not withstanding protracted delay. from carrying the plaintiff's goods within the usual (a reasonable) time. as will be seen from the 71 72 [LR] 1 CP 385. bound to carry within any given time. that the charterers. and he has neither acted negligently nor unreasonably. a railway company. were not liable for delay. so long as such delay is attributable to causes beyond his control. the ship was delayed. the contract which the plaintiffs have in this case with the defendants for the discharge of the cargo.62 interpreted.
who are under a duty to deliver the goods. Raymond & Reid: It is not right to say that. the limit of the user of the port appliances. having cited the passages from Lord Herschell's judgment in Hick v.63 latest authority upon the subject in the House of Lords . In an action to recover damages for breach of contract.is that the plaintiffs will discharge the cargo within a reasonable time under existing circumstances. no time being specified within which the goods were to be delivered. causes the delay. it was held that in calculating what was a reasonable time for delivery in accordance with the principle laid down in Hick v Raymond & Reid 74. there is no limit as to what are existing circumstances. and the defendants were unable to forward the goods to their destination. and when what is therein laid down is understood it will be seen that the defendants' contract is what I have said it is.no fixed time being stipulated for the discharge . The case to which I allude is that of Hick v. In the course of his judgment Ridley. or. and. as argued by the plaintiff . it follows that the cause of delay is one within the defendants' 73 74  1 KB 103. the strike of the defendants' servants must be taken into consideration as one of the circumstances existing at the time of the carriage. J. broke out. . Raymond in the House of Lords. in my opinion. because a strike of the servants of the defendants..73. In the case of Sims & Co. and that therefore the defendants were not liable for the delay. The goods becoming deteriorated the defendants sold them. perishable goods were consigned by the defendants' railway for delivery to the plaintiffs.namely. including the defendants' servants. with all due diligence having regard to all the existing circumstances. to deliver the goods. There was no evidence that the strike was caused or contributed to by the defendants. v Midland Railway Co. Supra note 70. During the transit a general strike of railway servants. in other words.
a claim sounding not in contract but in quasi contract. First. but there ought to be evidence of it. was to deliver the goods in the requested sequence and within a reasonable time. under which the nodes were delivered? Cleveland Bridge & Engineering (CBE) contended that there was such a contract. Two main areas of dispute developed between the parties. CBE's submission was that BSC's obligations. were approached by the defendants to produce a variety of cast-steel nodes for the project. unless there was a binding contract between the parties there was no legal basis for CBE's counterclaim for damages in respect of late delivery or delivery out of sequence. The design required steel beams to be joined to a steel frame by means of steel nodes. Apart from such evidence the mere fact that there was a strike among the railway company's servants causing the delay would not make the company liable. BSC's primary contention was that no binding contract was ever entered into. I can imagine a case in which it might be said that the happening of the strike was within the control of the railway company. but the strike would be an existing circumstance in the ascertainment of a reasonable time. 24 Build LR 94. and that they are liable for it. The plaintiffs. who were iron and steel manufacturers. under the contract alleged by them to have come into existence. was there any binding contract between the parties at all. and that they were entitled to be paid a reasonable sum for the nodes on a quantum meruit. There was no such evidence. which was to be found in certain documents (including a letter of intent issued by CBE) and the conduct of British Steel Corporation (BSC) in proceeding with the manufacture of the nodes. 75  1 All ER 504. So far as delivery was concerned. In British Steel Corporation v Cleveland Bridge & Engineering Co Ltd75 the defendants successfully tendered for the fabrication of steel work in the construction of a building. I do not say how the matter would have stood if there had been evidence that the strike was brought about by some unreasonable demand on the part of the railway company. The motives of the parties in putting their cases in these different ways lay primarily in the fact that. .64 control.
His Lordship then considered the evidence and concluded that a reasonable period for the manufacture of the 137 nodes. I have first to consider what would. BSC had been bound to complete the work within a reasonable time they would not have been in breach of that obligation. in the light of these events. It was held that the parties had ultimately been unable to reach final agreement on the price or other essential terms. and deciding whether. Goff J stated that: The question of what constituted a reasonable time had to be considered in relation to the circumstances which existed at the time when the contractual services were performed. was 55 weeks and that since such a period would have gone well beyond 11 April 1980 when the last node was in fact delivered it followed that if. BSC were in breach of that contract in delivering the goods late and out of sequence. The second issue is whether. (All but one .65 The first issue is concerned therefore with an analysis of the legal relationship between the parties. On the question of delivery within a reasonable time. This latter issue is concerned primarily with consideration of the various events and difficulties which occurred in production of the nodes by BSC. contrary to his Lordship's previously expressed opinion. but excluding circumstances which were under the control of the party performing those services. BSC failed to deliver the goods within a reasonable time as alleged by CBE. be a reasonable time for the performance of the relevant services and I have then to consider to what extent the time for performance by BSC was in fact extended by extraordinary circumstances outside their control. which were at the request of CBE. the contract was eventually not entered into and therefore the work performed in anticipation of it was not referable to any contractual terms as to payment or performance. thus. As I understand it. if CBE are right in their submission that there was a binding contract as alleged by them. in ordinary circumstances.
In July 2000. the integration and testing of the new software was delayed and Time withheld payment to Astea on the basis that it was in breach of section 14(1) of the Supply of Goods and Services Act 1982 because it had not performed the software contract within “a reasonable time” and had repudiated the contract by failing to complete the work by 6 March 2001. Time argued that “reasonable time” meant that Astea had to complete the services as fast as was humanly or technically possible. However. In order for Time's argument to have some credibility. From the six cases discussed above. subject only to delays that it could not control. Astea entered into a contract with Time Group. Supra note 70. delivery of the remaining node being held up until 11 April 1980 due to an industrial dispute at the plaintiffs' plant.) The case of Astea (UK) Limited v Time Group Limited76 warns of the dangers of entering into a contract without setting express deadlines for completion . Raymond & Reid77. .in particular when attempting to rely on the law which says that performance must be carried out “within a reasonable time”. Both counsel for the defendant and plaintiff endeavoured to seek support for their respective emphases from the well-known decision of the House of Lords in Pantland Hick v.66 of the nodes had been delivered. to supply Time with software for its customer call centre. Therefore Astea had not exceeded a reasonable time for performance and Time was ordered to pay. 76 77 Supra note 59. the considerations of what is a reasonable time are given below: - A reasonable time looking at all the circumstances of the case. the Technology and Construction Court ruled there was no express term to complete the work by 6 March 2001 and the implied term under s14(1) of the Services Act applied. it needed to issue Astea with a written notice setting out a new deadline for performance and making "time of the essence". a computer retailer. which it did not do. Owing to delays on both sides.
are not caused or attributed to by him.What constitutes a reasonable time has to be considered in relation to circumstances which existed at the time when the contract obligations are performed. . . Lord Ashbourne said in the case of Pantland Hick v.67 - Reasonable under the existing circumstances. . so long as such delay is attributable to causes beyond his control. not withstanding protracted delay. A common consideration as to what constitutes a reasonable time in all the cases stated is a reasonable time looking at all the circumstances of the case. and he has neither acted negligently nor unreasonably. What in ordinary circumstances was a reasonable time for performance and then considering to what extent the time for performance of the contractor was in fact extended by extraordinary circumstances outside his control.Consideration of a reasonable time for performance is likely to include taking into account any estimate given by the performing party of how long it would take him to perform. .Perform with all due diligence having regard to all the existing circumstances. Raymond & Reid 78: 78 Supra note 70. . in so far as they involve delay.The focus of attention in considering reasonable time is likely to be upon the allocation of resources to performance of the relevant contractual obligations. . but excluding circumstances which were under the control of the contractor. assuming that those circumstances.The condition of reasonable time has been frequently interpreted. and has invariably been held to mean that the party upon whom it is incumbent duly fulfils his obligation. and there is no limit as to what are existing circumstances.
if he did all he could. is not his conduct reasonable? If by circumstances absolutely outside his control he can do nothing. The appellant accordingly admits that the consignee has a right to have all ordinary circumstances taken into account. Where.68 What is the meaning of this expression “reasonable time”? It is obvious that “reasonable” cannot mean a definite and fixed time. and which he cannot control. also to be taken into account? In considering how to ascertain “reasonable time”. on the lapse of the stipulated time. if he omitted nothing that he should have done. and does it rest upon any real principle? If the consignee does all he can. thus waiving his right to cancel the contract.2. time is of the essence of a contract for the sale of goods and.2 Reasonable Time where the Stipulated Date has ceased to be Applicable by Reason of Prevention or Breach The remaining four cases are cases whereby the stipulated date for completion in the contract has ceased to be applicable by reason of acts of prevention or breach. as a condition of its performance. why should all the circumstances be arbitrarily divided into ordinary and extraordinary for the purpose of putting a narrow and artificial meaning upon the words “reasonable time”? 4. It would not be “reasonable” if it was not sufficiently elastic to allow the consideration of circumstances. must not the question come in. Is this distinction sound. but insists that all extraordinary circumstances are to be excluded from consideration. he has a right to give notice . why are not all circumstances in the events which actually happen. whether the consignee in the circumstances which eventuated acted unreasonably? If throughout the consignee acted reasonably. is his inaction unreasonable? If it is reasonable to consider some circumstances outside his control in favour of the consignee. the buyer continues to press for delivery. which all reason would require to be taken into account.
What the time provided for. One has to consider what is the reasonable time provided for. or intended to be used for. that the plaintiffs would not exceed a reasonable time if they were prevented from delivering by causes outside their control. a reasonable time in the circumstances as they actually existed.80 In CCECC (HK) Ltd v Might Foundate Developement Ltd & Ors81 it was stated that in order to establish a time at large argument. The 79 80 Rickards v Oppenheim  1 KB 616 Etablissements Chainbaux S. that are establishing that there was an act of prevention by the Respondent which caused delay and that the delay is not covered by the extension of time provision.L.79 Reasonable time has to be considered in the light of the circumstances which prevailed after the contract. In similar circumstances. The reasonableness of the time fixed by the notice must be judged as at the date when it is given. and events of that kind. it requires two-stages. such as strikes or the impossibility of getting parts. he will then have the right to cancel.R. but they made an arrangement that they were to pay by letter of credit. the person who has ordered the work can give a valid notice to the contractor making. It was not provided for.A. So that they had two things to do. In that case they would merely have had to provide themselves with the foreign currency. the few weeks or the reasonable time.69 fixing a reasonable time for delivery. that is. if not fulfilled by the new time stipulated. and that on the evidence in this case it could not be said that a reasonable time was in that sense exceeded. obtaining the sterling. There were two things that the buyers had to do in this case. time again of the essence of a contract. was for the machinery of getting the letter of credit. in the case of a contract for work and labour done. A reasonable time meant. 303 81  HKCU 916. The sterling is the currency in which they are buying and that is what they had first to provide. which. First. they had to provide some sterling. the letter of credit being in sterling: they had to get the sterling and they had to arrange for a letter of credit. thus making time again of the essence of the contract. v Harbormaster Ltd  1 Lloyd’s Rep. in accordance with well-known authorities. . They might have made an arrangement that they were merely to pay in sterling.
the respondent was being asked to explain the reason for the delay. 12 to 17). . DGP International Ltd. it was found that the Claimant was delayed by the Respondent’s lack of payment as they depended very heavily on these interim payments. The sub-contract for each package originally had a fixed completion date. The Claimant says that Clause 23 of the Contract does not cover such default by the Employer. was the sub-contractor to a joint venture. there were variations instructed before and after the original completion date. The appellant sub-contracted the design work of five of these packages (numbered S468. There was no contractual mechanism for extending time on account of the variations. the Claimant is entitled to rely on the effects of non-payment and late payment of interim payments. By letter dated 7 November 2000. KAT Nuclear for the design and manufacture of a number of packages as part of the construction of premises and process plant at Sellafield for handling nuclear waste.70 Respondent has admitted it was in breach of Contract in delaying of payment of the Interim Certificates (Nos. In the case of Shawton Engineering Ltd v DGP International Ltd 82 . An act of prevention by the Respondent sets time at large and that the Respondent is not entitled to deduct liquidated damages and it now has a reasonable period in which to finish the Works. the appellant said that it had to insist that within seven days the respondent provide it with an acceptable timeframe for completion of all contract works. In the event. in one of the contracts. On the other four contracts. There were admitted late payments running into millions of dollars. The appellant claimed against the respondent for breach of contract. S469. By October 2000. In this time at large issue. In calculating this time. the respondent had not completed its work on any of the packages and the appellant terminated or purported to terminate the contracts. the appellant. the variations were all instructed after the original completion dates. Shawton Engineering Ltd. A reasonable time for the completion of the Works is calculated. S512 and S514) to the respondent. Eventually. The parties agreed and HHJ Gilliland QC accepted that the effect of the 82  EWCA Civ 1359. S511.
result in an obligation to complete by a date in the past. depending on all the circumstances. From the four cases discussed above. nor particularly concerned about.71 variations was that the respondent became obliged to complete its work within a reasonable time. This overlaid to extinction any question of calculating time periods by reference to the original dates for completion and the work content of variations. the considerations of what is a reasonable time are given below: - A reasonable time meant. Therefore. a reasonable time in the circumstances as they actually existed . The original completion dates and periods had cased to be of any relevance. One such circumstance was that the respondent had originally agreed fixed time periods (although upon a misapprehension as to the work content). on 7 November 2000. early completion of the respondent's work. These worked in opposite directions. another was the true work content. and that. the reasonable time for completion was to be assessed afresh. mainly with reference to the outstanding work content including variations. The judge was right to hold that the appellant had not established what was a reasonable time for completion. and the circumstances here included that the variations were significant in scope and that the appellant was not insisting on. It was held that what was a reasonable time had to be judged as at the time when the question arose in the light of all relevant circumstances. the question was a composite one. it was possible that a modest variation instruction given after an original completion date had passed could. The mere instruction of a variation after the original date for completion would not by itself necessarily mean that a reasonable time had to be assessed afresh by reference only to the variation and whatever work happened to remain at the date of the variation (which is what the judge appeared to say). the respondent was not in breach for delay on 7 November 2000 and the appeal failed. However.
72 Effects of acts of prevention by Employer can be considered in calculating a reasonable time for completion - The fact that the experts had agreed what was an appropriate extension of time together with the originally agreed period was a fair indication of what should be regarded as a reasonable time for completion of the work. . but that is in effect to treat the originally agreed period as being a reasonable period The following tables (Table 4.1 and Table 4.2) summarize all the cases discussed above and give a clearer view on the explanation and meaning of “reasonable time” for each case and as well as the type of contracts involved.
fix any time for the performance of a contractual obligation. are not caused or attributed to by him.1: Reasonable time where no time for completion is specified in the contract/contract is silent as to time Type of Contract/ Contractual Relationship Carriage of goods/ Owner of Goods and Railway Company Shipping/ Shipowner and Consignee No 1 Cases Taylor v The Great Northern Railway Company [LR] 1 CP 385 - Explanation and Meaning of “Reasonable Time” Reasonable time means a reasonable time looking at all the circumstances of the case. and has invariably been held to mean that the party upon whom it is incumbent duly fulfils his obligation. and is not confined to contracts for the carriage of goods by sea. Circumstance in the case: carrying goods on the railway company’s line within the usual (a reasonable) time was unavoidably obstructed. Within a time which is reasonable under the existing circumstances. Lord Watson said that when the language of a contract does not expressly. In the case of other contracts the condition of reasonable time has been frequently interpreted. 2 Pantland Hick v Raymond & Reid  AC 22 - - . in so far as they involve delay. the law implies that it shall be performed within a reasonable time. or by necessary implication. assuming that those circumstances.73 Table 4. not withstanding protracted delay. and he has neither acted negligently nor unreasonably. The rule is of general application. so long as such delay is attributable to causes beyond his control. Circumstance in the case: unloading of cargo was interrupted by a strike of the dock labourers which delayed the discharge.
including the defendants' servants.is that the plaintiffs will discharge the cargo within a reasonable time under existing circumstances. in other words.74 Table 4. broke out. or. v Midland Railway Co. and the defendants were unable to forward the goods to their destination.1: Reasonable time where no time for completion is specified in the contract/contract is silent as to time (cont’d) Type of Contract/ Contractual Relationship Shipping/ Shipowner and Charterer No 3 Cases The Lyle Shipping Company Ltd v The Corporation of Cardiff  2 QB 638 - Explanation and Meaning of “Reasonable Time” No fixed time being stipulated for the discharge . with all due diligence having regard to all the existing circumstances. and there is no limit as to what are existing circumstances .namely. Reasonable time under the existing circumstances Circumstance in the case: a general strike of railway servants. the limit of the user of the port appliances. 4 Sims & Co.  1 KB 103 - Carriage of goods/ Purchaser of goods and Railway Company .
1: Reasonable time where no time for completion is specified in the contract/contract is silent as to time (cont’d) Type of Contract/ Contractual Relationship Supply of Material in Construction/ Steel manufacturer and Contractor No 5 Cases British Steel Corporation v Cleveland Bridge & Engineering Co Ltd  1 All ER 504.These principles are applied by first considering what in ordinary circumstances was a reasonable time for performance and then considering to what extent the time for performance of the contractor was in fact extended by extraordinary circumstances outside his control. 6 Astea (UK) Limited v Time Group Limited  EWHC 725 (TCC) Supply of Goods and Services/ Provider of Software and Manufacturer and Retailer of Computers .His Honour Judge Seymour thinks that consideration of a reasonable time for performance “. Whether a reasonable time has been taken to do the works cannot be decided in advance. .. but only after the work has been done. In any sphere of commercial or personal life it is necessary for decisions to be made as to the relative priority of matters which need to be dealt with and as to the resources which it is appropriate to allocate to such matters. 24 Build LR 94..The focus of attention is likely to be upon the allocation of resources to performance of the relevant contractual obligations. .What constitutes a reasonable time has to be considered in relation to circumstances which existed at the time when the contract obligations are performed. is likely to include taking into account any estimate given by the performing party of how long it would take him to perform…” . .75 Table 4.It would be wrong in principle to proceed that an obligation to do something within a reasonable time was equivalent to an obligation to do it as soon as was practicably possible. but excluding circumstances which were under the control of the contractor. subject only to not being held responsible for causes of delay without one’s control. Explanation and Meaning of “Reasonable Time” .
2: Reasonable time where the stipulated date has ceased to be applicable by reason of prevention or breach Type of Contract/ Contractual Relationship Sales of Goods/ Motor trader and Purchaser No 1 Cases Rickards v Oppenheim  1 KB 616 - Explanation and Meaning of “Reasonable Time” A reasonable time meant.L. that is. One has to consider what is the reasonable time provided for. and events of that kind. that the plaintiffs would not exceed a reasonable time if they were prevented from delivering by causes outside their control. 303 - Sales of Goods/ Buyer and Seller of marine engines .R. and that on the evidence in this case it could not be said that a reasonable time was in that sense exceeded.A. such as strikes or the impossibility of getting parts. a reasonable time in the circumstances as they actually existed.76 Table 4. v Harbormaster Ltd  1 Lloyd’s Rep. 2 Etablissements Chainbaux S. Reasonable time has to be considered in the light of the circumstances which prevailed after the contract.
one of which was that the true work content which the respondent undertook was far greater than it had anticipated. It was submitted that the fact that the experts had agreed what was an appropriate extension of time together with the originally agreed period was a fair indication of what should be regarded as a reasonable time for completion of the work. One such circumstance was that the respondent had originally agreed fixed time periods (although upon a misapprehension as to the work content) 4 Shawton Engineering Ltd v DGP International Ltd  EWCA Civ 1359 - - . In calculating this time the Claimant was entitled to rely on the effects of non-payment and late payment of interim payments (Acts of prevention by Employer). What was a reasonable time had to be judged as at the time when the question arose in the light of all relevant circumstances. - Explanation and Meaning of “Reasonable Time” A reasonable time for the completion of the Works is calculated.77 Table 4. notwithstanding that that period was agreed to under misapprehension Assessing a reasonable time meant having regard to all the circumstances. but that is in effect to treat the originally agreed period as being a reasonable period.2: Reasonable time where the stipulated date has ceased to be applicable by reason of prevention or breach (cont’d) Type of Contract/ Contractual Relationship Construction Contract/ Contractor and Employer Construction Contract/ Subcontractor and Sub subcontractor No 3 Cases CCECC (HK) Ltd v Might Foundate Developement Ltd & Ors  HKCU 916.
In any sphere of commercial or personal life it is necessary for decisions to be made as to the relative priority of matters which need to be dealt with and as to the resources which it is appropriate to allocate to such matters. subject only to not being held responsible for causes of delay without one’s control. saying: The focus of attention is likely to be upon the allocation of resources to performance of the relevant contractual obligations. Different sized contractors can be expected to have different resources at their disposal and it is reasonable to suppose that resources and productivity will be essential factors to be considered. it can be concluded that in the absence of a stipulated period. 83 Supra note 59. As in the case of Astea (UK) Limited v Time Group Limited83 Judge Seymour accepted that the plaintiff’s resources were an important concept.78 4. Such estimated completion period would be a reasonable point from which to assess reasonable time for performance. calculating what would be a reasonable time for performance of the relevant services can take into consideration the allocation of resources to performance of the relevant contractual obligations. Judge Seymour also seemed to think that consideration for a reasonable time for performance “…is likely to include taking into account any estimate given by the performing party of how long it would take him to perform…”. . It would be wrong in principle to proceed that an obligation to do something within a reasonable time was equivalent to an obligation to do it as soon as was practicably possible.3 Conclusion From the findings.
the original contract completion date will tend to be accepted as a basis of reasonable time in ordinary circumstance so that the new reasonable time for completion will be arrived at by adding such additional periods of delay as can be shown to have been caused by the prevention as seen in CCECC (HK) Ltd v Might Foundate Developement Ltd & Ors84. It was submitted that the fact that the experts had agreed what was an appropriate extension of time together with the originally agreed period was a fair indication of what should be regarded as a reasonable time for completion of the work. It is clear that DGP seriously underestimated both the number of drawings which would be required and how long the work would take.79 In circumstances where the stipulated date has ceased to be applicable due to prevention or breach. However. Supra note 82. There was a misapprehension to the defendant’s true work content. but that is in effect to treat the originally agreed period as being a reasonable period. the problem arises when the original completion date was not itself reasonable as stated in the case of Shawton Engineering Ltd v DGP International Ltd85. 84 85 Supra note 81. .
Reasonable under the existing circumstances. assuming that those circumstances. Problems encountered during the research and the recommendations for future researches are also stated in this chapter. as well as the analysis of the caselaws leading to findings on what is meant my “reasonable time”.1 Introduction Previous chapters presented the literature review on time at large and reasonable time.2 Summary of Research Findings In summary. examination of the ten caselaws leads to the following findings on the meaning of “reasonable time”: . in so far as they involve delay.CHAPTER 5 CONCLUSION AND RECOMMENDATIONS 5. 5. . This chapter concludes the findings of the research according to the research objective. are not caused or attributed to by him and excluding circumstances which were under the control of the contractor.
. . and he has neither acted negligently nor unreasonably. - Effects of acts of prevention by Employer can be considered in calculating a reasonable time for completion - The fact that the experts had agreed what was an appropriate extension of time together with the originally agreed period was a fair indication of what should be regarded as a reasonable time for completion of the work.81 considering what in ordinary circumstances was a reasonable time for performance and then considering to what extent the time for performance of the contractor was in fact extended by extraordinary circumstances outside his control. .The focus of attention in considering reasonable time is likely to be upon the allocation of resources to performance of the relevant contractual obligations.The condition of reasonable time has been frequently interpreted. and there is no limit as to what are existing circumstances. not withstanding protracted delay. but that is in effect to treat the originally agreed period as being a reasonable period . .Consideration of a reasonable time for performance is likely to include taking into account any estimate given by the performing party of how long it would take him to perform. and has invariably been held to mean that the party upon whom it is incumbent duly fulfils his obligation.Performance is done with all due diligence having regard to all the existing circumstances. so long as such delay is attributable to causes beyond his control.
This caused insufficient time to search and retrieve relevant caselaws for analysis. the meaning of reasonable time can be presented more comprehensively.82 5.3 Problem Encountered During Research The main constraint is insufficiency of time as only eight weeks is available for carrying out this research. this was not possible. 5. which all reason would require to be taken into account. Raymond & Reid86: What is the meaning of this expression “reasonable time”? It is obvious that “reasonable” cannot mean a definite and fixed time. The meaning of reasonable time was presented. It would not be “reasonable” if it was not sufficiently elastic to allow the consideration of circumstances. . Initial plans were also to search for more cases related to construction contracts but due to time limitations. The contractor’s obligation is then to complete the works within a reasonable time.4 Conclusion Time at large occurs when no time of completion is specified in the contract and where the stipulated date has ceased to be applicable by reason of prevention or breach. This limitation led to less cases being found to support the findings. As Lord Ashbourne puts it in the case of Pantland Hick v. With more cases. 86 Supra note 70.
the full ambit of those factual matters is likely to be wide and the scope of expertise. it is probably a question that can be determined by reference to all the factual information available that can be provided by the various project consultants involved. its subcontractors and suppliers and statutory undertakings.83 Therefore. Given that the entire scope of the contractor’s works needs to be considered. will depend in some measure upon usual practice and market conditions then prevailing in the place in which the works were built. in identifying the activity durations applicable. . (Pickavance. 2005). the contractor.
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