Legal Note

Claims for Extension of Time and Additional

Payment under Common Law FIDIC:
Civil Law Analysis
Salwa A. Fawzy 1; Islam H. El-adaway, F.ASCE 2; Louis Perreau-Saussine 3;
Mohamed S. Abdel Wahab 4; and Tarek H. Hamed 5
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Abstract: Lately, Egypt has been at the forefront of multiple megaconstruction projects and the same trend is expected to continue in the
future. Since such projects are mainly carried out by international contractors, the associated construction contracts mainly use the stan-
dard conditions of contract for international projects published by the Fédération Internationale des Ingénieurs-Conseils (FIDIC). The
FIDIC is based on legal concepts rooted in the common law system, whereas the legal doctrine that Egypt follows is founded upon civil law
principles as mandated by the Egyptian civil law (ECL). Therefore, employers, contractors, international financing organizations, en-
gineers, and lawyers, who use FIDIC in Egypt, need to understand the interpretation of the FIDIC provisions against a civil law back-
ground. This paper uses a multistep interdependent desktop research methodology to investigate the application of the general provisions
of extension of time and additional payment of the FIDIC Conditions of Contract for Construction–Red Book 1999, i.e., FIDIC (CONS), in
the context of ECL. To do so, provisions of extension of time and additional payment were studied separately under the FIDIC (CONS),
and similarly under the ECL. Consequently, the authors conducted a comparative analysis to recognize similarities and differences be-
tween both FIDIC (CONS) and ECL. Finally, the authors identified gaps and requirements for successful application of FIDIC (CONS)
under ECL. The analysis reveals that the ECL does not provide clear procedures and mechanisms regulating the contractor’s entitlement to
extension of time and/or additional payment. Accordingly, it is recommended to add a new, three-part article to the ECL as well as to
amend the first two paragraphs of Subclause 20.1 in the FIDIC (CONS). It is envisaged that this research would help stakeholders in the
construction industry, entering into projects based on the FIDIC (CONS) in Egypt, to properly manage time provisions and the associated
delays and risks leading to additional payment in the construction contracts. This should help minimize, as much as possible, disputes
associated with and/or resulting from the delays and claims for extensions of time and/or additional payment. Since most of the Middle
East countries follow civil law jurisdictions, and are most heavily influenced by the ECL, it is also envisaged that this research would
support effective and efficient contract administration of construction projects in the ME region. DOI: 10.1061/(ASCE)LA.1943-
4170.0000276. © 2018 American Society of Civil Engineers.

Introduction
Egypt has an important role in the economic growth of the coun-
tries in the Middle East region (Ezeldin and Abdel-Ghany 2013).
To this end, Egypt is planning to establish a special economic zone
1 projects in Egypt are the following: financing by contractors during
Contracts Associate Director, Dar Al Mimar Group; Instructor, Engi-
neering and Sciences Services, American Univ. in Cairo, 1 Abu Bakr El
Seddik St., Dokki, Giza, Egypt. Email: salwafawzy@gmail.com
2 construction, and nonutilization of professional construction/
Hurst-McCarthy Professor of Construction Engineering and Manage-
ment, Dept. of Civil, Architectural, and Environmental Engineering and
Dept. of Engineering Management and Systems Engineering, Missouri
Univ. of Science and Technology, 228 Butler-Carlton Hall, 1401 N. Pine
St., Rolla, MO 65401 (corresponding author). Email: eladaway@mst.edu
3 less—by the same problems in the Egyptian market (Grose and
Professor of Law, Paris-Dauphine Univ.; PSL Research Univ., Paris,
France. Email: louis.perreau-saussine@dauphine.fr
4
Chair of Private International Law and Professor of Dispute Resolu-
tion, Cairo Univ.; Founding Partner and Head of International Arbitration,
Zulficar & Partners Law Firm, Cairo, Egypt. Email: msw@zulficarpartners
.com
5
Instructor for Construction Contracts and Claims, Faculty of Engineer-
ing, Cairo Univ., Cairo, Egypt. Email: tarek3hs@yahoo.com
Note. This manuscript was submitted on December 20, 2017; approved on
March 29, 2018; published online on June 28, 2018. Discussion period open
until November 28, 2018; separate discussions must be submitted for indivi-
dual papers. This legal note is part of the Journal of Legal Affairs and Dispute
Resolution in Engineering and Construction, © ASCE, ISSN 1943-4162.
in the heart of the Suez Gulf. This zone is expected to provide
Egyptian and foreign investors with top-class infrastructure, market
access, and streamlined administrative procedures. However, de-
lays in the Egyptian construction market continue to be a repetitive
and concerning phenomenon (Ezeldin and Abdel-Ghany 2013). In
fact, a study revealed that the main causes of delay in construction
construction, delays in payment by owners, design changes by or
on behalf of owners during construction, partial payments during
contractual management (Abd El-Razek et al. 2008). Likewise,
the construction industry in the Middle East (ME) is at the center
for multiple megaconstruction projects and is impacted—more or
Shlah 2015).
Most of the contracts used for construction projects in Egypt,
predominantly use the standard conditions of contract for
international projects published by the Fédération Internationale
des Ingénieurs-Conseils (FIDIC) (Skaik 2009). In fact, FIDIC is
the established form of construction contract in the ME region
(Rose 2009). It is used in public-works contracts of many of the
most important construction and industrial projects in Egypt; for
example, the Greater Cairo Waste Water Project, the Cairo Metro
Project, Demietta Port, and terminal two of Cairo International
Airport. Moreover, the FIDIC conditions are adopted in all projects

© ASCE 06518002-1 J. Leg. Aff. Dispute Resolut. Eng. Constr.

J. Leg. Aff. Dispute Resolut. Eng. Constr., 2018, 10(4): 06518002

 financed by the World Bank and by the USAID (United States Aid
for International Development), which, in turn, finance a significant
number of major infrastructure projects in Egypt (Sarie-El Din
1994).
The legal concepts in the FIDIC are based on the common law
system (Axel-Volkmar and Gotz-Sebastian 2010; Bunni 2005). In
1999, FIDIC published the new suite of standard contracts. This
suite includes the conditions of contract for construction, which
is recommended for building and engineering works designed
by or on behalf of the employer, although some elements of design
may be given to the contractor, known as the new Red Book, which
is referred to hereinafter as FIDIC [Conditions of Contract for Con-
struction (CONS)]. A survey of the users’ feelings about the FIDIC
contract policy in general, and the FIDIC (CONS) in particular, was
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undertaken by Reading University in England at the combined re-
quest of the European International Contractors (EIC) and FIDIC.
The final survey report was published in June 1996 and provided,
among other data, specific contractual issues relating to the Red
Book, including applicability to civil law jurisdictions (EIC/FIDIC
Questionnaire Survey 1996).
Egypt bases its Egyptian Civil Law (ECL) on a mixture of
French civil law and Shari’a law. In turn, most laws used in coun-
tries of the ME region are heavily influenced by the ECL. It is rather
ironic that most of these countries base their construction contracts
on the FIDIC forms, which are based largely on common law prin-
ciples (Marke 2015). Unfortunately, contractors operating in
Egypt—and the ME region—often fail to appreciate the magnitude
of the impact of contract interpretation in view of the local laws in
the region. Local laws in the ME should be considered carefully by
both contractors and employers, as part of a proper risk evaluation
(Abu-Manneh 2008).
Under the ECL, risks are allocated among the employer and the
contractor via the conditions of the contract agreed upon between
the parties, the provisions of law, or both. Relevantly, under the
ECL, building and construction contracts do not have separate
rules; rather, there are certain rules that apply to all contracts for
works (muqawala contracts), including building and construction
ones. However, building and construction contracts differ from
other muqawala contracts in many aspects; for instance, under
building and construction contracts, the costs and expenses to
execute the works as well as the time for completion thereof are
much greater than those under other muqawala contracts (Hamed
et al. 2012). The provisions of muqawala contracts under the
Egyptian Civil Law are affected by the following factors (Hamed
2010):
• The provisions are general, i.e., they have been set for all
muqawala contracts, not only for construction contracts.
• The provisions are brief, which is consistent with the civil-based
legal systems.
• The provisions are stable for long periods of time, notwithstand-
ing that the construction industry is a continuously developing
industry.
Goal and Objectives
The goal of this research was to study the provisions of extension
of time and/or additional payment under the common law-based
FIDIC (CONS) within the context of the ECL. It is worth noting
that the FIDIC (CONS) is recommended for building and engineer-
ing works designed by or on behalf of the employer, although some
elements of design may be given to the contractor. Furthermore,
the FIDIC (CONS) is a remeasured contract. Accordingly, when
examining the extension of time and additional payment provisions
© ASCE 06518002-2
J. Leg. Aff. Dispute Resolut. Eng. Constr., 2018, 10(4): 06518002
under the ECL, this research will focus on contracts of the
same characteristics. Moreover, the construction contracts in the
Egyptian legal system are classified into civil contracts and admin-
istrative contracts, which are governed by two different systems of
law, depending on the nature of the employer. This research will be
limited to the study of civil construction contracts. Further, the spe-
cific provisions entitling the contractor to extension of time and/or
additional payment under the FIDIC (CONS)—for example, de-
layed drawings and instructions, unforeseeable physical conditions,
setting out errors, : : : , etc.—have different applications under the
Egyptian Civil Code (ECC). These specific provisions will not be
dealt with in this paper. The analysis will cover the application of
the general provisions of extension of time and/or additional pay-
ment of the FIDIC (CONS) under the ECL, being the applicable law
of the contract.
Accordingly, the associated research objectives include:
(1) highlighting similarities and differences between the relevant
provisions under the FIDIC (CONS) and the ECL; and (2) providing
recommendations to amend the relevant provisions under the ECL
and/or under the FIDIC (CONS).
Background Information
Delays and Extension of Time
Delayed completion is one of the most common problems facing
construction projects. However, delayed completion is not unique
to the construction industry. It also happens in other industries, in-
cluding, for example, aerospace projects, ship building, IT, oil and
gas, rail transport, and petrochemical and process plants. Delay is
also not unique to a particular culture or jurisdiction; delay occurs
in the United Kingdom as it occurs in Russia, the United States,
Hong Kong, the ME, Pakistan, India, South Africa, Australia, and
the forests of Peru. Delayed completion happens in all industries,
jurisdictions, and cultures in which a unique product, the character
of which is expected to change, is created over a period of time by a
combination of specialized resources (Pickavance 2010; El-adaway
et al. 2014; Fawzy and El-adaway 2012).
Under the common law, extension-of-time provisions include
the agreement of the parties under a building contract on the
apportioning of risk of delay between them [see Henry Boot Con-
struction, Ltd., v. Central Lancashire New Town Development,
Ltd.]. The causes of delay could be the responsibility of the em-
ployer, the contractor, or neither of them, i.e., neutral events. Most
building contracts contain express provisions under which the time
for completion allowed for the contractor to undertake and com-
plete the works can be adjusted. These provisions provide mostly
for delays that are neither caused by the contractor nor within his
responsibility. Such provisions obviously benefit the contractor,
since they eliminate liability to pay delay damages for its failure
to complete by the original completion date, during a valid ex-
tended period of time in accordance with the contract (Murdoch
and Hughes 2008; Fawzy et al. 2015). Extension-of-time provi-
sions also provide certainty in the event of a delay caused by or
attributable to the contractor under the contract (Furst and
Ramsey 2012).
Extension-of-time clauses are also beneficial for the employer
under the common law. Such clauses enable the original comple-
tion date to be readjusted, in which delay to the completion of the
works has been the employer’s responsibility, thereby retaining
the benefit of a clearly identified completion date and consequently
any related entitlement on the employer’s part to liquidated dam-
ages [see Holme v. Guppy and Peak Construction (Liverpool),
J. Leg. Aff. Dispute Resolut. Eng. Constr.
 Ltd., v. McKinney Foundations, Ltd.,] (Furst and Ramsey 2012;
MacRoberts Solicitors 2008; Knowles 2012; Fawzy et al. 2015).
Because the FIDIC concepts are based on the common law
system, it is worthwhile to dwell upon the issues of delays and ex-
tensions of time and their relation to liquidated damages, under the
common law. In this context, the time for completion can only be
extended where the contract permits, and strictly in accordance
with the contract provisions (Murdoch and Hughes 2008). Accord-
ingly, extension-of-time clauses should be drafted to account for all
delays that may be the responsibility of the employer (Gibson
2008). Further, if the contract does not provide grounds for extend-
ing the completion date due to an employer’s delay event, and if
completion is delayed due to such delay event by the employer, the
employer will lose his right to deduct liquidated damages in respect
of the contractor’s delay in completion. Effective contracts avoid
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this by having a fully comprehensive extension-of-time clause that
properly caters for all delays by the employer or the architect
(Knowles 2012; Fawzy and El-adaway 2014).
It is also important to note that, under the common law, if the
contractor is prevented from completing by the specified comple-
tion date, due to the employer’s responsibility, and there is no cor-
responding right to extend the time for completion or it is not
properly extended, time becomes at large. If time becomes at large,
the employer would no longer be entitled to insist upon the com-
pletion date and there is no enforceable date for completion of the
works. However, the contractor is still under the obligation to com-
plete the works within a so-called reasonable time (Pickavance
2006).
Time is said to be at large as a result of what is known as the
prevention principle, i.e., a party cannot insist on the performance
of a contractual obligation by the other if it is itself the cause of the
nonperformance (Fawzy and El-adaway 2014 and see Barque
Quilpe, Ltd., v. Brown). The cause of delay attributable to the
employer is often referred to as an act of prevention. Such acts
of prevention could be a breach of contract by the employer, such
as a delay in giving the contractor essential instructions [see Dodd
v. Churton], failure by the employer to give possession of the site
[see Holme v. Guppy], delay in providing plans [see Roberts v.
Bury Commissioners, or failing to deliver components it is bound
to provide under the contract [see Perini Pacific v. Greater Van-
couver Sewerage and Drainage District and Furst and Ramsey
2012]. Contrarily, an act of prevention by the employer could
be a perfectly legitimate action that causes a delay beyond the time
for completion, such as instructing additional work or other varia-
tions [see Dodd v. Churton]. These acts of prevention by the em-
ployer would release the contractor from its obligation to complete
the works within a fixed construction period or date, absent of an
effective extension-of-time clause that provides otherwise [see
Holme v. Guppy and Dodd v. Churton] (Fawzy and El-adaway
2014).
The importance of time becoming at large lies in the fact that the
employer loses his entitlement to deduct liquidated damages for
delay, and can claim only for unliquidated damages, which are
those losses resulting from the delay that can actually be proven
(Murdoch and Hughes 2008). Moreover, even when the delay
caused by the employer is a very small part of the overall delay,
the employer cannot simply discount this delay and claim liqui-
dated damages for the remainder, because the provision for liqui-
dated damages fails altogether (Murdoch and Hughes 2008).
Therefore, for the employer to maintain entitlement to deduct liqui-
dated damages for the contractor’s delays, it is of his own benefit to
include a provision in the contract that allows for extending the
time for completion in case any of the occurring delays are the em-
ployer’s responsibility (Fawzy et al. 2015).
© ASCE
J. Leg. Aff. Dispute Resolut. Eng. Constr., 2018, 10(4): 06518002
Since the prevention principle was developed under the com-
mon law, careful drafting of extension-of-time clauses has avoided
many of the problems caused by its operation. Drafters of many
standard forms of contract now do this by including extension-of-
time clauses based expressly on acts of prevention or default on the
part of the employer or his agents, thereby successfully defeating
attempts to avoid the contractual liquidated damages.
Under the common law, if there is no express provision to
extend the time for completion for a delay caused by events over
which the contractor may genuinely have no control, the contrac-
tor takes the risk of such delay, unless these events are such as to
frustrate the contract entirely, which will only rarely occur in a
construction context (see Percy Bilton, Ltd., v. Greater London
Council) (Bunni 2005; Wallace 2012). Examples of such events
could be weather, strikes, labor or materials shortages, or damage
or obstruction by third parties for whom the employer is not
responsible. In common law jurisdictions, it is important to in-
clude in the contract a precise list of neutral events; otherwise,
they cannot constitute a reason for the implementation of the
extension-of-time clause, and in case of delay due to any of these
events, the contractor will remain liable to pay damages to the
employer (Rosher 2014).
Finally, where the ground of extension of time would otherwise
be the contractor’s risk, the extension of time is purely a conces-
sion, i.e., the contractor shall be entitled to extension of time, but
not to additional payment, such as in the case of inclement weather.
However, when the extension of time is as a result of an act or de-
fault of the employer such as issuing variations or giving late in-
structions, the contractor may be entitled also to additional payment
(Uff 2009).
Contractor’s Claims for Additional Payment
It has been said that “claims are a fact of life” and “claims are here
to stay.” It has also been said that “more than a quarter of the money
paid by employers to contractors is now based on negotiations that
take place after the contract is signed.” If claims are unwelcomed
yet unavoidable, then at least the construction project stakeholders
should equip themselves to deal with them efficiently and expedi-
tiously and minimize the cost in terms of both money and staff re-
sources (Hughes 1985). In fact, few civil engineering contracts of
any size reach completion without claims being made by the con-
tractors for extension of time or additional payment (Powell-
Smith 1989).
Claim is a general term for the assertion of a right to money,
property, or remedy. However, in the construction context, the
word claim is commonly used to describe any application by
the contractor for additional payment that arises other than under
the ordinary contract provisions for payment. In addition, the
word claim is also used to describe a contractor’s application
for extension of time for completion (Powell-Smith 1989;
Chappell et al. 2005). In this regard, Subclause 20.1 of the FIDIC
(CONS) states that
If the Contractor considers himself to be entitled to any ex-
tension of the Time for Completion and/or any additional pay-
ment, under any Clause of these Conditions or otherwise in
connection with the Contract, the Contractor shall give notice
to the Engineer, describing the event or circumstance giving
rise to the claim.
It is clear then that the FIDIC (CONS) seems to ignore claims
arising from anything other than the assertion for an entitlement to
extension of time or additional payment (Bunni 2005).
06518002-3 J. Leg. Aff. Dispute Resolut. Eng. Constr.
 Fig. 1. Research methodology.
The construction contract is unique in that most construction
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contracts seek to provide for a specific remedy in the event of
any breach of the terms and conditions within its framework
and/or for a contractual entitlement in respect of specified events.
The genesis and development of the standard form of construction
contract was based on the need to redefine and reapportion the risk
ascribed to the respective parties by the applicable law. Most stan-
dard forms of construction contracts include a mechanism to give
one party a certain remedy if a specified event arises. The risk of
that event, which would otherwise remain with that party, is trans-
ferred to the other party. Whether the remedy sought is in respect of
a breach of contract by the other party, or for the occurrence of a
specified event, all construction contracts place an obligation on the
party seeking to avail itself of that remedy to follow a set proce-
dures, referred to as the claims procedure. The first step of the
claims procedure of any construction contract is the making of a
notice (Bunni 2005). This paper is concerned only with the general
provisions related to the contractor’s entitlement to additional pay-
ment and not to the analysis of the individual events that raise the
contractor’s entitlement thereto.
Methodology
As shown in Fig. 1, this paper uses a multistep interdependent desk-
top research methodology to analyze the issues of delays and ex-
tension of time, as well as the contractor’s claims for additional
payment. First, provisions related to delays and extension of time
are investigated in terms of entitlement and procedural matters
under the FIDIC (CONS). Second, the same provisions are exam-
ined under the ECL. Third, the authors critically analyze the appli-
cation of the relevant provisions under the FIDIC (CONS) in the
context of the ECL as the applicable law of the contract. The same
three-step analysis is undertaken for issues of claims for additional
payment. Finally, the authors make recommendations as to the
amendments required to the relevant provision under the ECL
and to FIDIC (CONS). Case law is used in developing and support-
ing all arguments provided in this research.
Results and Analysis
Delays and Extension of Time under the FIDIC (CONS)
Entitlement to Extension of Time
Subclause 8.4 (Extension of Time) of the FIDIC (CONS) details
the delay events that could possibly raise entitlement to extension
of time under the subject contract. Such events comprise the
following:
© ASCE 06518002-4
J. Leg. Aff. Dispute Resolut. Eng. Constr., 2018, 10(4): 06518002
1. A Variation [unless an adjustment to the Time for Completion
has been agreed under Subclause 13.3 (Variation Procedure)]
or other substantial change in the quantity of an item of work
included in the Contract;
2. A cause of delay giving an entitlement to extension of time un-
der a Subclause of these Conditions;
3. Exceptionally adverse climatic conditions;
4. Unforeseeable shortages in the availability of Personnel or
Goods caused by epidemic or governmental actions; or
5. Any delay, impediment, or prevention caused by or attributable
to the Employer, the Employer’s Personnel, or the Employer’s
other contractors on the Site.
Some of the aforementioned events are attributable to the em-
ployer and others are attributable to neither the employer nor the
contractor.
Subclause 8.4 does not include a descriptive list of all events that
can give rise to an extension of time. Instead, in addition to giving a
short list of such events, Subparagraph (b) refers to other sub-
clauses that entitle the contractor to the extension of time. These
subclauses can be summarized as follows:
• Subclause 1.9: Delayed Drawings or Instructions
• Subclause 2.1: Right of Access to the Site
• Subclause 4.7: Setting Out
• Subclause 4.12: Unforeseeable Physical Conditions
• Subclause 4.24: Fossils
• Subclause 7.4: Testing
• Subclause 8.5: Delays Caused by Authorities
• Subclause 8.9: Consequences of Suspension
• Subclause 10.3: Interference with Tests on Completion
• Subclause 13.7: Adjustments for Changes in Legislation
• Subclause 16.1: Contractor’s Entitlement to Suspend Work
• Subclause 17.4: Consequences of Employer’s Risks
• Subclause 19.4: Consequences of Force Majeure
It is further noted that under Subclause 8.4(c), the contractor is
entitled to an extension of time for climatic conditions which are
exceptionally adverse. However, there is no equivalent entitlement
to additional payment in respect of the delay resulting from such
event. However, if such an event is categorized as one of the em-
ployer’s risks and satisfies the criteria specified in Subclause 17.3(h)
as “any operation of the forces of nature which is Unforeseeable or
against which an experienced contractor could not reasonably have
been expected to have taken adequate preventative precautions,”
then Subclause 17.4 entitles the contractor to compensation for rec-
tifying the damage attributable to such climatic conditions (Booen
2000). It is noted that the entitlements to extension of time do not
themselves entitle the contractor to additional cost and in some
cases to profit. This depends on the event that gives rise to the claim
for an extension of time and the relevant subclause concerned
(Glover and Hughes 2006). Subclause 8.5 [Delays Caused by
Authorities] raises entitlement to extension of time only.
J. Leg. Aff. Dispute Resolut. Eng. Constr.
 Fig. 2. Procedures for claims under the FIDIC (CONS).
Glover and Hughes (2006) provided samples for the subclauses
that raise entitlement to extension of time and cost and those raising
entitlement to extension of time, cost, and reasonable profit. The
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following subclauses raise entitlement to extension of time and
cost:
• Subclause 4.12: Unforeseeable Physical Conditions
• Subclause 4.24: Fossils
• Subclause 8.9: Consequences of Suspension
• Subclause 13.7: Adjustments for Changes in Legislation
• Subclause 17.4: Consequences of Employer’s Risks
• Subclause 19.4: Consequences of Force Majeure
The following subclauses raise entitlement to extension of time,
cost, and reasonable profit:
• Subclause 1.9: Delayed Drawings or Instructions
• Subclause 2.1: Right of Access to the Site
• Subclause 4.7: Setting Out
• Subclause 7.4: Testing
• Subclause 10.3: Interference with Tests on Completion
• Subclause 16.1: Contractor’s Entitlement to Suspend Work
Procedures and Procedural Breaches
The procedures for agreement or determination of extension of
time under the FIDIC (CONS) are the same procedures for addi-
tional payment and are provided for in Subclause 20.1 [Contrac-
tor’s Claims] of the FIDIC (CONS), which provides, first, the
following:
If the Contractor considers himself to be entitled to any ex-
tension of the Time for Completion and/or any additional pay-
ment, under any Clause of these Conditions or otherwise in
connection with the Contract, the Contractor shall give notice
to the Engineer, describing the event or circumstance giving
rise to the claim. The notice shall be given as soon as prac-
ticable, and not later than 28 days after the Contractor became
aware, or should have become aware, of the event or
circumstance.
If the Contractor fails to give notice of a claim within such
period of 28 days, the Time for Completion shall not be ex-
tended, the Contractor shall not be entitled to additional pay-
ment, and the Employer shall be discharged from all liability
in connection with the claim. Otherwise, the following provi-
sions of this Sub-Clause shall apply : : :
Courts, in the common law legal system, are less likely to con-
strue the requirements as to the form and content of the notice
required under claim clauses too strictly [see Tersons, Ltd., v.
Stevenage Development Corp; and Rees & Kirby v. Swansea
C.C.]. Furthermore, courts are reluctant to treat the notices as
conditions precedent to the contractor’s entitlement to extension
of time, unless they are expressly stated as being so. In other
words, failure of a contractor to serve a proper delay notice will
not result in the loss of rights to an extension of time, unless the
contract expressly states that the service of a notice is a condition
© ASCE 06518002-5
J. Leg. Aff. Dispute Resolut. Eng. Constr., 2018, 10(4): 06518002
precedent to such rights [see Bremer Handelsgesellschaft mbh
v. Vanden Avenne-Izegem; Maidenhead Electrical Services,
Ltd., v. Johnson Control Systems, Ltd.; City Inn, Ltd., v. Shep-
herd Construction, Ltd.; Steria, Ltd., v. Sigma Wireless Commu-
nications, Ltd.] (Knowles 2012).
By applying the aforementioned to the wording in the FIDIC
(CONS), according to Subclause 20.1, “If the Contractor fails to
give notice of a claim within such period of 28 days, the time
for completion shall not be extended : : : ”. Hence, it is contended
that the service of a notice, in accordance with the provisions and
time limits required by Subclause 20.1, is considered a condition
precedent to the contractor’s entitlement to extension of time.
Failure by the contractor to comply with the notice requirements
will result in loss of his right to an extension of time. The notices
should comply with Subclause 1.3 (Communications) of the FIDIC
(CONS). Furthermore, the progress reports submitted by the con-
tractor, under Subclause 4.21 [Progress Reports] should include a
list of notices given under Subclause 20.1 [Contractor’s Claims]
(Booen 2000).
As shown in Fig. 2, Subclause 20.1 goes on to state the
following:
Within 42 days after the Contractor became aware (or should
have become aware) of the event or circumstance giving rise
to the claim, or within such other period as may be proposed
by the Contractor and approved by the Engineer, the Contrac-
tor shall send to the Engineer a fully detailed claim which
includes full supporting particulars of the basis of the claim
and of the extension of time and/or additional payment
claimed : : :
As for the procedures for extension of time for events having a
continuing effect, Subclause 20.1 states that:
If the event or circumstance giving rise to the claim has a
continuing effect:
(a) this fully detailed claim shall be considered as interim;
(b) the Contractor shall send further interim claims at
monthly intervals, giving the accumulated delay and/or
amount claimed, and such further particulars as the Engineer
may reasonably require; and
(c) the Contractor shall send a final claim within 28 days
after the end of the effects resulting from the event or circum-
stance, or within such other period as may be proposed by the
Contractor and approved by the Engineer : : :
In the last paragraph of Subclause 20.1, it is stated that:
If the Contractor fails to comply with this or another Sub-
Clause in relation to any claim, any extension of time and/
or additional payment shall take account of the extent (if
any) to which the failure has prevented or prejudiced proper
investigation of the claim : : :
J. Leg. Aff. Dispute Resolut. Eng. Constr.
Downloaded from ascelibrary.org by Tufts University on 07/01/18. Copyright ASCE. For personal use only; all rights reserved.
Fig. 3. Procedures for claims events having continuing effects under the FIDIC (CONS).
The preceding provision could be interpreted to include the
contractor’s failure to properly follow the procedures pertaining
to providing the details of the claim for extension of time
(Fawzy and El-adaway 2012). Therefore, if a breach by the con-
tractor, in that regard, had caused a delay that would otherwise
have been avoidable, then the contractor would not be entitled
to recover for that avoidable delay (Glover and Hughes 2006).
The contractor shall be entitled to payment for any such part
of the claim since he has been able to substantiate. This is ex-
plained visually in Fig. 3.
Subclause 20.1 provides the time period for the engineer to
respond to a claim for extension of time. This subclause states
the following:
Within 42 days after receiving a claim or any further partic-
ulars supporting a previous claim, or within such other
period as may be proposed by the Engineer and approved
by the Contractor, the Engineer shall respond with approval,
or with disapproval and detailed comments. He may also re-
quest any necessary further particulars, but shall nevertheless
give his response on the principles of the claim within
such time.
In addition, Subclause 20.1 states that the engineer’s determi-
nation shall be made pursuant to Subclause 3.5 as follows:
Within the above defined period of 42 days, the Engineer shall
proceed in accordance with Sub-Clause 3.5 [Determinations]
to agree or determine (i) the extension (if any) of the Time for
Completion (before or after its expiry) in accordance with
Sub-Clause 8.4 [Extension of Time for Completion], and/or
(ii) the additional payment (if any) to which the Contractor
is entitled under the Contract.
It is interesting to note that, since the FIDIC concepts are
based on the common law system, Subclause 8.4 sets out as
one of the events giving the contractor entitlement to extension
of time as the following: “(e) any delay, impediment or preven-
tion caused by or attributable to the Employer, the employer’s
personnel, or the employer’s other contractors.” The foregoing
provision is a catchall provision for any events that are the
responsibility of the employer. The goal of such provision is to
avoid any possibility of time becoming at large due to an act of
prevention for a cause for which the employer is responsible.
This catchall provision is included in other standard forms of
contracts for the same purpose (Chappell et al. 2005; Fawzy
and El-adaway 2014).
© ASCE
J. Leg. Aff. Dispute Resolut. Eng. Constr., 2018, 10(4): 06518002
Delays and Extension of Time under the Egyptian
Civil Law
Entitlement to Extension of Time
Under the ECL, the contractor is under obligation to complete the
works within a specific duration. If the employer and contractor do
not agree on the duration for completion, the contractor will be
under obligation to complete the work within a reasonable period,
taking into consideration the nature of the works, the trade usage,
and the contractor’s capabilities and methods (Al-Sanhuri 1989;
Shanab 1963). Delayed work by the contractor or malfunctioning
works is considered a nonperformance (see Egyptian Cassation)
(Al-Sanhuri 1989; Axel-Volkmar and Gotz-Sebastian 2010). In this
section, delays attributable to the employer and neutral events are
discussed in the context of the ECL.
There are no express provisions in the muqawala section in the
ECC specifically regulating the contractor’s exemption from pay-
ing damages for delay in performance, which was caused by em-
ployer’s acts or other events that resulted in delay in completion.
Accordingly, the general principles of contract law shall apply in
such case. In this relation, Article 215 of the ECC stipulates the
following:
When specific performance by the debtor is impossible, he
will be ordered to pay damages for non-performance of his
obligation, unless he establishes that the impossibility of per-
formance arose from an external cause beyond his control.
The same principle will apply, if the debtor is late in the per-
formance of his obligation.
Translating this to a construction setting, if the contractor proves
that the delay in performance of his obligation (in this case, delays
to completion of the works) was due to an external cause beyond
his control, the contractor would be exempted from paying dam-
ages for failure to fulfill his commitments. The external cause
exempting the contractor from his liability to pay delay damages
can be applied to the case in which the contractor has been delayed
by an act of the employer, such as breach of contract or the instruc-
tion of additional works (Al-Sanhuri 1989; Bellhouse and Cowan
2008). Therefore, if the employer is delayed in the delivery of
material he was obliged to provide, and such delay resulted in
the delay to the construction works, the contractor shall not be held
responsible for the delay. Moreover, the contractor is relieved from
responsibility for a delay if the employer delays the payment of
amounts due to the contractor, and as a result, the contractor is de-
layed in completion. It is worth mentioning that such an act by the
06518002-6 J. Leg. Aff. Dispute Resolut. Eng. Constr.
 employer resulting in delay to the works does not need to be a
breach of contract. I If the employer issues instructions for varia-
tions leading to contractor’s delay in completion, the contractor
shall not be held responsible for such delay, if he executes the var-
iations within a reasonable period [see French Court of Cassation
10.12.1913 Sirey 1914 (Bull. Som.) 1-19; French Court of Cassa-
tion 27.02.1888 Dalloz 89-1-31; Cassation 01.06.1972 Cassation
Cases year 23 no 166 p 1062; Mixed Appeal 02.05.1906 no 18 p
223] (Al-Sanhuri 1989; Shanab 1963; Fawzy et al. 2015). More-
over, it should be noted that, under the ECL, the external cause,
which exempts the contractor from paying damages for his delay
in performance, does not only apply to delays caused by the em-
ployer, but also to delays caused by a neutral event.
Furthermore Article 216 of the ECC states the following:
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The judge may reduce the amount of damages or may even
refuse to allow damages if the creditor, by his own fault, has
contributed to the cause of, or increased, the loss.
According to the aforementioned Article, if the contractor was
delayed because of a reason caused by the employer or if the em-
ployer contributed to such delay, the judge may rule that the amount
of agreed damages may be reduced or not paid at all by the
contractor.
Additionally, there are several judicial cases, under French law,
which furnish numerous examples of delays for which the em-
ployer was held responsible, amendment of the initial project
(see 3rd Civil Chamber, May 10, 1994; 3rd Civil Chamber,
May 4, 1995), delay in payment of the agreed price (see 3rd Civil
Chamber, May 16, 1984), absence of endeavors to remove admin-
istrative barriers (see Poitiers Appeal Court), interruption of the
works at the request of the employer without setting an exact re-
sumption date (see 3rd Civil Chamber, November 4, 1993), con-
clusion of many amendments and a delay of administrative plans
and authorizations amounting to several months (see 3rd Civil
Chamber, January 15, 2003), etc. (Rosher 2014). It is thought that
the same applies to the ECL.
In addition, French law does not provide any methods for delay
analysis and their calculation, and that remains a gray area in the
execution of construction contracts. Accordingly, this can be a
source of serious difficulties and conflicts for French construction
companies. In this context, the insertion of clauses related to
extension of time and methods for delay analysis could be very
helpful (Rosher 2014). The same applies to the ECL.
Procedures and Procedural Breaches
As for procedural matters, generally under civil law jurisdictions,
there is no clear system of claims for extension of time, which is
typically not claim-based. Usually, at the end of the project, the
parties will discuss each event that prevented the contractor from
completing within the contract duration, to reduce the total time
overrun (Axel-Volkmar and Gotz-Sebastian 2010). It is thought that
the same applies to the ECL.
The general principles of contract law of the ECC provide that
the debtor (in the case at hand, the contractor) would be exempted
from paying damages for his delay in performance, if he proves that
the delay in performance was caused by an external cause beyond
his control. Yet, the ECC does not provide any express specific
provision for the contractor’s entitlement to extension of time
and a mechanism for such extension. Although the contractor is
relieved from the damages for delay by means of a judicial award,
yet, at the time of execution of the works the time for completion is
unclear either to the employer or to the contractor, which could
result in disputes between the parties (Hamed 2010). As a result,
and while acknowledging that the absence of express legislative
© ASCE 06518002-7
J. Leg. Aff. Dispute Resolut. Eng. Constr., 2018, 10(4): 06518002
provisions does not imply absence of entitlement, it is recom-
mended, for unequivocal certainty, to include such specific provi-
sion in the ECC, to regulate the contractor’s entitlement to
extension of time and the procedures related thereto. However,
it is advisable that such provision be included in the same provision
related to the contractor’s entitlement to additional payment as a
result of an event attributable to the employer or for which he is
responsible (discussed in the “Contractor’s Claims for Additional
Payment” section in this paper).
Application of the FIDIC (CONS) under the Egyptian
Civil Law
It was mentioned that the FIDIC (CONS) provides for events that
could possibly entitle the contractor to extension of time under
Subclause 8.4. Subparagraph (b) of Subclause 8.4 refers to other
subclauses that entitle the contractor to extension of time. Some
such events that entitle the contractor to extension of time are
attributable to the employer and others are caused by neutral events.
Subclause 8.4 contains a catchall provision for any delay events
that are the responsibility of the employer; namely “(e) any delay,
impediment or prevention caused by or attributable to the Em-
ployer, the employer’s personnel, or the employer’s other contrac-
tors.” The goal of the catchall provision is to avoid any possibility
of time becoming at large from an act of prevention for a cause for
which the employer is responsible. Time at large is a common law
concept and in most civil law countries, this concept remains un-
known as distinctive (Bellhouse and Cowan 2008).
This section will examine the situation where FIDIC (CONS)’s
extension-of-time clause was omitted for some reason, and the
works were delayed for a reason for which the contractor is not
responsible, to determine if provisions would be imported from
the ECL. However, to avoid misunderstandings, it might be a good
idea to apply the case to the common law first, then to the ECL.
Under the common law, if the delay was the employer’s respon-
sibility, time would become at large. Consequently, the employer
will lose his right to deduct liquidated damages in respect of the
contractor’s delays, and the contractor would be under obligation
to complete within a reasonable period. On the other hand, if the
works were delayed by a neutral event, such as weather or strikes,
the contractor takes the risk of such delay, unless such events are
such as to frustrate the contract entirely [see Percy Bilton, Ltd., v.
Greater London Council] (Bunni 2005; Wallace 2012). On the
other hand, French law contains no express principle of prevention;
however, notions that come very close to it exist (Rosher 2014).
The same applies to the ECL. There are no express provisions
in the muqawala section in the ECC covering contractor’s exemp-
tion from paying damages for delays caused by employer’s acts or
other events leading to delay in completion. Accordingly, the gen-
eral principles of contractual liability shall apply. In such case, the
contractor could resort to Article 216 of the ECC to be exempted
from the damages for the delay in performance of his obligation if
he establishes that such delay was due to a cause attributable to the
employer. In addition, the damages could be reduced if the em-
ployer has contributed to the delay. The contractor could also resort
to Article 215 of the ECC to be exempted from the damages, if
he establishes that the delays to the completion of the works were
caused by an external cause beyond his control, which could be an
act of the employer or delays caused by a neutral event.
Based on the aforementioned, it is concluded that if the
extension-of-time clause was omitted in the FIDIC (CONS), in
the context of the ECL, and there are solutions to be imported and
principles to be derived from the ECL. If the contractor was pre-
vented from completing the works by the time for completion due
J. Leg. Aff. Dispute Resolut. Eng. Constr.
 to a cause for which the employer is responsible, then under both
the common law and the ECL, the employer will not be entitled to
the delay damages agreed in the contract. On the other hand, it is
vital to note that the contractor’s delay due to neutral events, in the
absence of the extension-of-time provision, is treated differently
under the common law and the ECL. Under the common law,
the contractor shall be held responsible for the delay and will be
liable for delay damages. In the case of the FIDIC (CONS), for
the contractor to be exempted from delay damages for a delay
caused by a neutral event, then the neutral event must be listed
in Subclause 8.4 or referred to through Subparagraph (b). The
ECL is more comprehensive in that it allows the contractor to
be exempted from damages if he establishes that the delayed com-
pletion was caused by an external cause beyond his control, which
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would include neutral events. Therefore, the solution under the
ECL is more favorable to the contractor.
Unlike the FIDIC (CONS), the ECC does not provide detailed
legislative procedures, mechanisms, and sanctions in case the con-
tractor fails to follow the procedures. Although the contractor is
relieved from the damages for delay by means of a judicial award
at the time of execution of the works, the time for completion is
unclear to the employer and contractor, which could result in dis-
putes between the parties (Hamed 2010).
As for the procedural failure by the contractor, the FIDIC
(CONS) requires the contractor to serve a proper delay notice in
accordance with Subclause 20.1, which states, “If the Contractor
fails to give notice of a claim within such period of 28 days,
the time for completion shall not be extended : : : ”. This indicates
that the FIDIC drafter intends to make the service of the notice in
compliance with the aforementioned subclause. A condition prec-
edent to the contractor’s entitlement to extension of time and failure
by the contractor to comply with the notice requirements will result
in loss of his right to an extension of time.
As mentioned previously in this section, courts in the common
law legal system are less likely to construe the requirements, in
form and content, of the notice required under claim clauses too
strictly. They are also reluctant to treat the notices as conditions
precedent to the contractor’s entitlement to extension of time, un-
less they are expressly stated as being so. Moreover, it should not be
overlooked that in certain jurisdictions the employer would not be
able to rely on a breach by the contractor of such condition prec-
edent to claim for delay damages. This is because some local laws
disallow any contractual right to restrict the right to bring a claim
before a judge or arbitral tribunal, for example, in Taiwan pursuant
to Article 58 of the Civil Procedural Code (Glover and
Hughes 2006).
By applying such procedural failure in the context of the ECL,
reference is made to Article 147/1 of the ECC, which states, “The
contract is the law of the contracting parties. It can be revoked or
altered only by mutual consent of the parties or for reasons pro-
vided for by law.” According to this Article, the agreement between
the employer and the contractor on an express provision to the ef-
fect that a proper notice is a condition precedent for the contractor’s
entitlement to extension of time will be legally enforceable, subject
to any applicable general principles of good faith, abuse of right,
estoppel, etc. In addition, the ECL acknowledges and enforces the
parties’ express agreement that a right is forfeited or waived if a
party fails to provide a notice within an agreed or reasonable period,
as the case may be. Attention is drawn to the provisions related to
sales contracts, specifically to Articles 449 and 455 of the ECC.
Article 449 states the following:
1) When the purchaser has taken delivery of the object sold,
he must ascertain its condition as soon as he is able to do so, in
© ASCE 06518002-8
J. Leg. Aff. Dispute Resolut. Eng. Constr., 2018, 10(4): 06518002
accordance with customary trade practice. If he discovers a
defect which the vendor warrants against, he must notify
him of it within a reasonable time. If he fails to do so, he
is considered to have accepted the object sold.
2) If, however, the defect is such that it cannot be discovered
by ordinary examination, and the purchaser discovers it, he
must notify the vendor of the defect as soon as it appears,
or else he is considered to have accepted the object sold, with
its defects.
Article 455 states the following:
In the absence of an agreement to the contrary, if the vendor
warrants the good working condition of the object sold for a
specific period of time, and a defect in the object appears, the
purchaser must notify the vendor of the defect within one
month from its appearance, and must bring an action within
six months from the notification. Otherwise, his right to the
warranty is forfeited.
However, it is argued that the notice requirements under Sub-
clause 20.1 of the FIDIC (CONS) may be considered strict pro-
cedural requirements that could amount to a waiver of right
depending on the factual matrix of the case. Such a waiver may
be substantively countered by some legal principles in the ECL,
including principles of good faith, abuse of right, unjust enrich-
ment, and estoppel. The said legal principles in this context will
be analyzed subsequently. Articles were written in relation to
the notice requirements of the FIDIC and their application under
the United Arab Emirates (UAE) law (Skaik 2009; Marke
2015). Since the UAE’s legal system is highly influenced by the
Egyptian legal system, an analogy is made herein for such legal
principles under the ECL.
Before rejecting a claim under the FIDIC due to noncompliance
with strict technicalities of the notification procedures, it is impor-
tant to consider the provisions of the Civil Code, which might have
a bearing on the issue (Skaik 2009; Marke 2015). According to
Article 148/1 of the ECC, the obligations resulting from contracts
must be performed in good faith. It is argued that this could apply to
the case in which a contractor considers information given in
agreed minutes of a meeting or report, as written notice, as required
by the FIDIC (CONS). Consideration of good faith may be relevant
in such case and the contractor may argue that the engineer and the
employer have actually been notified of the existence of the claim
within the time stipulated in the contract and in a written form.
Accordingly, the purpose of the notification provision would have
been fulfilled in such case, making it an act of bad faith not to ac-
cept this.
Moreover, according to Article 5 of the ECC, the exercise of a
right is considered unlawful if the desired benefit is out of propor-
tion to the harm caused thereby to others. Thus, if a valid claim is
rejected solely by reason of purely technical breach of notice re-
quirement, this may well be considered unlawful, especially if
the interest in upholding the employer’s contractual right to receive
the notice within the stipulated time is disproportionate to the likely
financial harm to the contractor.
Furthermore, if a valid claim for extension of time due to a varia-
tion for additional work is rejected by the engineer purely on the
grounds of a contractor’s noncompliance with the requirements of
contractual notice provisions, then it is possible, under the ECL,
that the employer has been unjustly enriched by benefiting from
the additional work. This could be considered the case if the em-
ployer is trying to avoid payment for such additional work by re-
lying on the contractor’s failure in a procedural matter. Unjust
enrichment is deemed unlawful under the ECL, in which, according
J. Leg. Aff. Dispute Resolut. Eng. Constr.
 to Article 179 of the ECC, each person, even one lacking discretion,
who unjustly enriches himself to the detriment of another person, is
liable, to the extent of his profit, to compensate such other person
for the loss sustained by him. However, it is worth noting that, as a
matter of law, contractual liability and unjust enrichment cannot
be combined, and that unjust enrichment would not be invoked
in the presence of a valid contract, since claims would have to
be pursued as contractual claims and not separate unjust enrichment
claims.
Last, based on the principle of estoppel, the engineer cannot,
upon accepting a claim referred to him by the contractor after
the lapse of the time frame required by Subclause 20.1 of the FIDIC
(CONS) and render a determination thereon, subsequently reject
the claim on the basis of the contractor’s failure to provide the
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notice within such time frame. In this case, the employer could
be estopped from arguing that this claim is inadmissible and that
the contractor has waived his right by not giving notice in a
timely manner. It is noted that the principle of estoppel was up-
held in court awards in Egypt (see Cassation 18.08.1951; Cairo
Appeal Court). It is also possible to consider that certain acts or
omissions by the employer or engineer could qualify as implying
a waiver of right to insist on the notice requirement, but this has to
be assessed on a case-by-case basis in light of the parties’ con-
tractual conduct.
Considering the aforementioned, the strict procedural require-
ments under Subclause 20.1 of the FIDIC (CONS) may be substan-
tively countered, when regarded in the light of the legal principles
of the applicable ECL.
Contractor’s Claims for Additional Payment under the
FIDIC (CONS)
Entitlement to Additional Payment
The FIDIC (CONS) subclauses referring to the contractor’s entitle-
ment to additional payment are as follows:
• Subclause 1.9: Delayed Drawings or Instructions
• Subclause 2.1: Right of Access to the Site
• Subclause 4.7: Setting Out
• Subclause 4.12: Unforeseeable Physical Conditions
• Subclause 4.24: Fossils
• Subclause 7.4: Testing
• Subclause 8.9: Consequences of Suspension
• Subclause 10.2: Taking Over of Parts of the Works
• Subclause 10.3: Interference with Tests on Completion
• Subclause 11.2: Cost of Remedying Defects
• Subclause 11.8: Contractor to Search
• Subclause 12.4: Omissions
• Subclause 13.2: Value Engineering
• Subclause 13.7: Adjustments for Changes in Legislation
• Subclause 15.5: Employer’s Entitlement to Termination
• Subclause 16.1: Contractor’s Entitlement to Suspend Work
• Subclause 16.4: Payment on Termination
• Subclause 17.4: Consequences of Employer’s Risks
• Subclause 19.4: Consequences of Force Majeure
• Subclause 19.6: Optional Termination, Payment and Release
• Subclause 19.7: Release from Performance under the Law
For each of the aforementioned events, the FIDIC (CONS) spec-
ifies the basis for the extent of the contractor’s entitlements to addi-
tional payment; specifically, it is clearly stipulated whether the
contractor shall be entitled to cost only, or to cost and reasonable
profit. Generally, the FIDIC (CONS) specifies that the contractor is
entitled to reasonable profit, in the events attributable to the
employer.
© ASCE
J. Leg. Aff. Dispute Resolut. Eng. Constr., 2018, 10(4): 06518002
Procedures and Procedural Breaches
The procedures for agreement or determination of additional pay-
ment for the contractor under the FIDIC (CONS) are the same pro-
cedures as those for extension of time and are provided for in
Subclause 20.1 (Contractor’s Claims) of the FIDIC (CONS).
The procedures are discussed earlier in the “Delays and Extension
of Time” section in this paper.
Contractor’s Claims for Additional Payment under the
Egyptian Civil Law
Entitlement to Additional Payment
Under the ECL, the contract price cannot be modified, except by
the agreement of the parties or as provided by law (Shanab 1963).
This provision stems from the general rule stipulated in Article
147/1 of the ECC, which states,“The contract is the law of the
contracting parties. It can be revoked or altered only by mutual
consent of the parties or for reasons provided for by law.” The
muqawalasection in the ECC does not include any express pro-
visions that provide for the contractor’s entitlement to increase
in the contract price due to an event caused by or attributable to
the employer. Exception is made in Article 658 of the ECC in the
case of lump sum contracts. This article covers the case of mod-
ifications or additions made to the design due to the fault of the
employer, or authorized by him, and the price thereof is agreed
with the contractor. Accordingly, the general principles of con-
tract law shall apply in the other cases in which there is an increase
in the contract price due to an event caused by or attributable to
the employer.
Furthermore, as stated by scholars in their commentary on
Article 658/1 of the ECC, for the contractor to be entitled to addi-
tional payment, it is not necessary to prove that the employer had
bad intentions or was in breach. Contractor’s entitlement to addi-
tional payment could result from an increase in price from an act by
the employer or attributable to him. Such acts could go beyond
modifications occurring in the design, to any additional costs
caused by or are attributable to the employer. For example, if
the employer was delayed in issuing the permits or giving the con-
tractor access to the site and such event resulted in additional costs,
the contractor shall be entitled to additional payment (Shanab 1963;
Al-Sanhuri 1989). However, the ECC does not include any express
provision to that effect. It also does not specify the events that could
trigger the contractor’s entitlement to additional payment, as a re-
sult of events caused by or attributable to the employer (Hamed
2010). As mentioned herein previously, this does not, in and of
itself, imply nonentitlement, but it is recommended to introduce
a provision in the ECC to expressly regulate such entitlements,
which would boost predictability and certainty and would be con-
sistent with the general principles of the ECC and the provisions
governing contractual liability.
By reverting to the general principles of contract law, it is of
paramount importance to draw the attention to the fact that the con-
tracting party (the employer, in the case at hand) is required to per-
form his obligations under the contract, according to the provisions
of Article 148/1 of the ECC, which states, “A contract must be per-
formed in accordance with its provisions and in compliance with
the requirements of good faith.” If the employer does not perform
any of his obligations under the contract or is delayed in the per-
formance of his obligations, then he is considered in breach of con-
tract. In such case, the contractor shall be entitled to compensation
for all damages he incurs as a result of the employer’s breach; such
provision is enshrined in Article 215 of the ECC, which stipulates
the following:
06518002-9 J. Leg. Aff. Dispute Resolut. Eng. Constr.
 When specific performance by the debtor is impossible, he
will be ordered to pay damages for non-performance of his
obligation, unless he establishes that the impossibility of per-
formance arose from an external cause beyond his control.
The same principle will apply, if the debtor is late in the per-
formance of his obligation.
In relation to the extent of damages, attention is drawn to Article
221 of the ECC, which states the following:
1) The judge shall assess the amount of damages, if it has not
been fixed in the contract or by a provision of law. Damages
include compensation for losses incurred by the creditor and
profits foregone, provided that they are the natural result of the
failure to perform the obligation or of delay in such perfor-
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mance. The harm shall be considered a natural result if the
creditor is unable to avoid it by exerting reasonable efforts.
2) If, however, the source of the obligation is a contract, a
debtor who has not committed fraud or gross negligence shall
not be held liable for damages except for harm which was
generally foreseeable at the time of entering into the contract.
Legal jurisprudence writings and scholars stipulate that it is the
obligation of the employer, under the ECL, to perform what is nec-
essary for the contractor to commence and proceed with the works
until completion. Therefore, if the employer is required, under the
contract, to provide permits, drawings, specifications, or data, or to
supply material or equipment to the contractor, then according to
the ECL, the employer is required to perform such obligations in
the agreed time or, if there is no agreed time, within a reasonable
period. In addition, the employer is under the obligation not to im-
pede the contractor from performing his obligations under the con-
tract (Al-Sanhuri 1989; Shanab 1963), which is fully consistent
with the requirements of good faith.
Procedures and Procedural Breaches
As for the procedures for the contractor’s claim for additional pay-
ment, the muqawala section of the ECC does not provide any ex-
press provision for a specific mechanism for the contractor’s
entitlement to additional payment due to an event caused by or
attributable to the employer. However, one very primitive sort of
procedure is provided in the general principles of contract law,
where Article 218 of the ECC, states, “Subject to any provision
to the contrary, damages are not due unless the debtor receives no-
tification requesting him to perform his obligation.” Translating this
to a construction setting, for the contractor to be entitled to com-
pensation for the damages he incurs as a result of the employer’s
breach of contract, the contractor is expected to submit the required
notice, according to the provisions of Article 218 of the ECC.
By notifying the employer, the contractor legally establishes that
the employer is delayed in performing his obligation mise en de-
meure, mora, retard If the employer is delayed in performing his
obligation and the contractor is delayed in notifying the employer,
it may be assumed, subject to the facts of each case, that the con-
tractor accepts the delay by the employer until the notice to that
effect is given, unless the parties agree otherwise and save for
the exceptions provided by law in Articles 219 and 220 of the
ECC, which will be discussed subsequently in this section (see
Civil Cassation 21.12.1933; Mixed Appeal 12.02.1919; Mixed Ap-
peal 28.03.1935; Mixed Appeal 31.03.1898) (Al-Sanhuri 1989).
If the breach is related to nonperformance of the obligation,
some scholars argue that the notice is still a condition precedent,
because of the generality of Article 218 of the ECC. Whereas, other
scholars argue that the notice is not obligatory, because the dam-
ages caused by nonperformance are due to an event that is not
© ASCE 06518002-10
J. Leg. Aff. Dispute Resolut. Eng. Constr., 2018, 10(4): 06518002
related to the notice; therefore, there is no need for the notice.
A third group of scholars argue that if specific performance is pos-
sible, then a notice is required for the entitlement to damages to be
established, and the notice establishes the entitlement to damages in
case the debtor does not perform his obligation. Consequently, the
notice would be meaningful. On the other hand, if specific perfor-
mance is not possible, then the notice would be useless and the
situation would be classified under one of the exceptions at law
in which no notice is required (Al-Sanhuri 1989), according to
the stipulations of Article 220 of the ECC which states, “No no-
tification of the debtor is necessary in the following cases: (a) if
the performance of the obligation becomes impossible or useless
due to an act of the debtor : : : ”. Nevertheless, in any case, there
is no requirement for the notification to be made within a specific
period or otherwise the contractor’s entitlement is waived, except
for the limitation periods provided by law. As for the required form
of the notice, Article 219 of the ECC stipulates the following:
A debtor is notified by a summons or its equivalent. The no-
tice may be delivered by mail in the manner provided for in
the Code of Civil Procedure, or may be the result of an agree-
ment stipulating that the debtor shall have constructive notice
by the mere expiration of the term (granted for performance of
the obligation), without the need for any other procedure.
Application of the FIDIC (CONS) under the Egyptian
Civil Law
The FIDIC (CONS) provides for several events that raise the con-
tractor’s entitlement to additional payment. Some of the events en-
titling the contractor to additional payment are attributable to
the employer, while others are caused by neutral events. However,
the ECC does not specify the events caused by or attributable to the
employer, which could raise the contractor’s entitlement to addi-
tional payment. With the exception of Article 658 of the ECC, there
are no express provisions in the muqawala section in the ECC that
provide for the contractor’s entitlement to increase in the contract
price from an event caused by or attributable to the employer.
Accordingly, the general principles of contract law will apply in
such case.
Generally, if the employer is in breach of any of his obligations
under the FIDIC (CONS) and the contractor’s relevant entitlement
to additional payment was omitted from the contract, the general
principles of contract law under the ECC shall apply. In such case,
the contractor would still be entitled to compensation for the dam-
ages he incurs as a result of the employer’s breach, pursuant to
Article 215 of the ECC. The contractor would have to notify
the employer of the breach to establish his entitlement to damages.
However, the claim cannot be time-barred compared to the provi-
sion in Subclause 20.1 of the FIDIC (CONS). The claim would only
be subject to the limitation periods provided by law.
As for the procedures and mechanism for additional payment,
the FIDIC (CONS) provides detailed procedures and sanctions in
case the contractor fails to follow the procedures. On the other
hand, the ECC does not provide any express provision for specific
procedures or mechanism in relation thereto in the muqawala sec-
tion. The very primitive procedures in the general principles of con-
tract law, under Article 218 of the ECC, can be referred to in such
case. These provide that for the creditor (the contractor in the cur-
rent case) to be entitled to compensation for all damages he incurs
as a result of the debtor’s (the employer in the current case) breach
of contract, the contractor should submit the required notice, unless
exempted by law or contractually.
J. Leg. Aff. Dispute Resolut. Eng. Constr.
 Regarding the procedural failure by the contractor, the FIDIC
(CONS) requires the contractor to serve a proper notice in accor-
dance with Subclause 20.1, which states, “If the Contractor fails to
give notice of a claim within such period of 28 days, the time for
completion shall not be extended, the contractor shall not be enti-
tled to additional payment, and the employer shall be discharged
from all liability in connection with the claim.” Accordingly, and
similar to the analysis provided in the “Delays and Extension of
Time” section in this paper, the provisions and time limits required
by Subclause 20.1 intend to ensure that the service of the notice is
requisite to the contractor’s entitlement to additional payment.
Therefore, failure by the contractor to comply with the notice re-
quirements may result in loss of his right to additional payment,
unless there are valid legal or contractual grounds that safeguard
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the contractor’s entitlement. For this reason, the solutions in the
FIDIC (CONS) in relation to this particular provision may come
across as less favorable to the contractor than those under the
ECL, as a result of the implied waiver of right associated with
the lapse of time.
On the other hand, in the context of the ECL, reference is made
to Article 147/1 of the ECC, which states, “The contract is the law
of the contracting parties. It can be revoked or altered only by mu-
tual consent of the parties or for reasons provided for by law.”
In light of this Article, if the parties expressly agree that the serving
by the contractor of a proper notice is a condition precedent for the
contractor’s entitlement to additional payment, then such agree-
ment will be enforced by law. That is because such agreement
is not contradictory to a mandatory provision at law. In addition,
and as mentioned in the “Delays and Extension of Time” section in
this paper, the ECL acknowledges and enforces the parties’ agree-
ment that a right may be waived or forfeited if a party fails to pro-
vide a notice within an agreed period. Examples of such provision
under the ECL are provided in Articles 449 and 455 of the ECC, as
clarified previously. However, and as mentioned previously, it is
argued that the notice requirements under Subclause 20.1 of the
FIDIC (CONS) are considered strict procedural requirements that
amount to a waiver of right and depending on the factual matrix.
Such waiver may be substantively countered by some legal prin-
ciples in the ECL, including principles of good faith, abuse of right,
unjust enrichment, and estoppel.
Based on the foregoing, it is concluded that the solutions related
to the contractor’s claims for additional payment under the FIDIC
(CONS) are similar in some instances to those under the ECL.
However, still, there are some notable differences between both
of them.
Recommendations and Additions to the Body of
Knowledge
When examining the provision of the delays and extension of time
of the FIDIC (CONS) and of the ECL, it is concluded that the so-
lutions related to the delays and extension of time under the FIDIC
(CONS) are similar in some instances to those under the ECL. That
is despite the legal concepts under the FIDIC (CONS) are derived
from the common law system and are different from the legal rul-
ings in the ECL. However, still, there are some notable differences
between the solutions in the FIDIC (CONS) and under the ECL. In
this paper, similarities and differences have been pointed out.
As mentioned previously in this paper, the ECC does not
provide any express legislative provision for the contractor’s enti-
tlement to extension of time or for a mechanism for such extension.
Accordingly, it is recommended to add such provision in the ECC,
to regulate, with more certainty and predictability, the contractor’s
© ASCE 06518002-11
J. Leg. Aff. Dispute Resolut. Eng. Constr., 2018, 10(4): 06518002
entitlement to extension of time and the procedures related thereto.
However, it is recommended that such provision be included in the
same provision related to the contractor’s entitlement to additional
payment as a result of an event attributable to the employer or for
which he is responsible. Further, there are no express provisions in
the Muqawala section in the ECC that provide for the contractor’s
entitlement to additional payment due to an event caused by or
attributable to the employer and there is no provision regulating
the procedures and mechanism of such entitlement. Accordingly,
it is recommended to add such provisions in the ECC. As such,
it was previously suggested in the relevant parts of the previous
section of this paper to introduce a provision to regulate the con-
tractor’s entitlement to extension of time and the procedures related
thereto and to include such provision in the provision for the con-
tractor’s entitlement to additional payment as a result of an event
attributable to the employer or for which he is responsible. Based
on the aforementioned, it is recommended to introduce the follow-
ing new Article to the ECL:
1. The contractor shall be entitled to extension of time, if comple-
tion is delayed or will be delayed, as a result of an external cause
beyond the contractor’s control, whether attributable to the em-
ployer or a neutral event. The extension of time shall be to the
extent the works were delayed by such event, taking into con-
sideration any likely delays by the contractor.
2. The contractor shall be entitled to additional payment if he in-
curs additional costs, as a result of an event caused by or attri-
butable to the employer, taking into consideration any likely
delays by the contractor. The extent of the additional payment
shall be the additional costs incurred by the contractor, in addi-
tion to a reasonable profit.
3. If the contractor considers himself entitled to extension of time
and/or any additional payment, under the previous subpara-
graphs, the contractor shall give notice to the employer, describ-
ing the event giving rise to the claim. The notice shall be given
as soon as practicable after the contractor became aware, or
should have become aware, of the event. By giving notice,
the contractor is deemed to have established his entitlement
to extension of time and/or additional payment from a date start-
ing up to 28 days before the date of the notice, but not before the
date of the event. The contractor is deemed to have waived his
right for extension of time and/or additional payment for the
impact of the event that has occurred before such date.
As for recommendations for amendments to the FIDIC (CONS),
it is thought that the provisions related to the effect of notices under
the ECL, as amended previously, are more appropriate to construc-
tion contracts, than the time-barring provision provided in Sub-
clause 20.1 of the FIDIC (CONS). Therefore, it is recommended
to amend Subclause 20.1 to make the effect of the notice to estab-
lish the contractor’s entitlement to extension of time and/or addi-
tional payment and that failure to provide such notice would not
result in the contractor losing his entitlement to extension of time
and/or additional payment. The contractor, in such case, is deemed
to have waived his right for extension of time and/or additional pay-
ment for the period preceding the date up to 28 days prior the no-
tice, but not before the date of the event. The reason for such
28 days is to give the contractor some time to assess that an event
could have a time/cost impact, so the notice should establish the
right of extension of time and/or additional payment, not from
the date of the notice, but starting from up to 28 days before
the date of the notice (but not before the date of the event), as pro-
vided by the contractor in the notice.
Based on the aforementioned, it is recommended to make the
following amendment to the first and second paragraphs of Sub-
clause 20.1 (Contractor’s Claims) of the FIDIC (CONS):
J. Leg. Aff. Dispute Resolut. Eng. Constr.
 If the Contractor considers himself to be entitled to any ex-
tension to the Time for Completion and/or any additional pay-
ment, under any Clause of these Conditions or otherwise in
connection with the Contract, the Contractor shall give notice
to the Engineer, describing the event or circumstance giving
rise to the claim. The notice shall be given as soon as prac-
ticable after the Contractor became aware, or should have be-
come aware, of the event or circumstance.
By giving the notice, the Contractor is deemed to have established
his entitlement to extension of time and/or additional payment from
a date starting up to 28 days before the date of the notice, but not
before the date of the event. The Contractor is deemed to have
waived his right for extension of time and/or additional payment
for the impact of the event or circumstance that has occurred before
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such date.
Conclusion
Egypt bases its civil law on a mixture of French civil law and
Shari’a law, yet FIDIC, which is based on legal concepts rooted
in the common law system, is the established form of construc-
tion contract in the Egyptian construction projects. Awareness of
the local laws and the mandatory provisions thereof is a must
for the stakeholders operating with FIDIC contracts and/or indi-
viduals entrusted with determining disputes in a civil law juris-
diction. This paper used a multistep interdependent desktop
research methodology to study the general provisions of exten-
sion of time and/or additional payment of the FIDIC (CONS)
within the context of the ECL. Through highlighting similarities
and differences between the relevant provisions under the FIDIC
(CONS) and the ECL, this research adds to the body of knowl-
edge by providing recommendations to amend the relevant pro-
visions under the Egyptian Civil Code (ECC) and/or FIDIC
(CONS). Accordingly, it is recommended to add a new three-part
article to the ECL as well as to amend the first two paragraphs of
Subclause 20.1 in FIDIC (CONS). As such, this study would
help employers, engineers, and contractors who are associated
with projects in the Egyptian market to be better positioned
to properly manage time provisions, delays, and risks leading
to additional payment in the construction contracts. This should
also enable more effective and efficient contract administration
of construction projects in the Egyptian construction sector.
Since most legal systems in the ME countries are heavily im-
pacted by the ECL, the benefits of this research will extend
to the ME region.
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