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Keating on Construction Contracts 10th Ed.

Whole Document

Chapter 1 - The Nature of a Construction Contract

Section 1. - Introduction

Section 2. - The Persons Concerned in a Construction Contract

Section 3. - Contract Documents

Section 4. - Contractual Arrangements

Section 5. - A Typical Construction Operation—Traditional Procedure

Section 6. - Design and Build Contracts

Section 7. - Management and Construction Management Contracts

Section 8. - Contracts with Financial and Operating Obligations

Section 9. - Partnering

Section 10. - Smaller Works Contracts

Section 11. - Dispute Resolution

Chapter 2 - Formation Of Contract

Section 1. - Elements Of Contract

Section 2. - Offer And Acceptance

(a) - Invitation to tender

(b) - Tender

(c) - Letters of intent

(d) - Estimates

(e) - Standing offers

(f) - Rejection of offer

(g) - Revocation or lapse of offer

(h) - Acceptance

(i) - Essential terms

(j) - Subject to contract

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(k) - Certainty of terms

(l) - Agreement to negotiate

(m) - Negotiations after contract

(n) - Acceptance by conduct

(o) - Communication of acceptance

(p) - Notice of terms

(q) - Course of dealing

Section 3. - Formalities of Contract

(a) - Contracts requiring writing

(b) - Deeds

Section 4. - Capacity of Parties

(a) - Minors (or infants)

(b) - Corporations and companies

(c) - Contracts by local authorities

(d) - Government contracts

(e) - Partnerships

(f) - Unincorporated associations

Chapter 3 - Construction of Contracts

Part A. - Construction of Contracts

Section 1. - Expressed Intention

(a) - Extrinsic evidence not normally admissible

(b) - When extrinsic evidence is admissible

Section 2. - Rules of Construction

Section 3. - Alterations

Section 4. - Implied Terms

(a) - Statutory implication

(b) - Implication at common law

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(i) - Implication to make contract work

(ii) - Implication of “usual” terms—employer

(iii) - Implication of “usual” terms—contractor

(iv) - Implication of “usual” terms—long-term contracts

Section 5. - Construction of Deeds

Section 6. - The Value of Previous Decisions

Part B. - Risk, Indemnity and Exclusion Clauses

Section 1. - Risk Clauses

Section 2. - Indemnity Clauses

Section 3. - Exclusion Clauses

Section 4. - Legislation Affecting Exclusion and Limitation Clauses

Section 5. - Unfair Contract Terms Act 1977

Chapter 4 - The Right to Payment and Varied Work

Part A. - The Right to Payment

Section 1. - Lump-sum Contracts

(a) - Entire contracts

(b) - Substantial performance

(c) - Non-completion

Section 2. - Contracts other than for a Lump Sum

Section 3. - Quantum Meruit

Part B. - Varied Work

Section 1. - What is Extra Work?

(a) - Lump-sum contract with work widely defined

(b) - Lump-sum contract with work exactly defined

(c) - Measurement and value contracts

(d) - Other common features

Section 2. - Agent’s Authority

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Section 3. - Payment for Extra Work

Section 4. - Rate of Payment

Section 5. - Appropriation of Payments

Chapter 5 - Employer’s Approval and Architect’s Certificates

Part A. - Employer’s Approval

Part B. - Architect’s Certificates

Section 1. - Types of Certificate

Section 2. - Certificates as Condition Precedent

Section 3. - Recovery of Payment Without Certificate

Section 4. - Binding and Conclusive Certificates

Section 5. - Attacking A Certificate

(a) - Not within the architect’s jurisdiction

(b) - Not properly made

(c) - Disqualification of the certifier

(d) - Effect of an arbitration clause

Chapter 6 - Excuses for Non-Performance

Section 1. - Inaccurate Statements Generally

Section 2. - Misrepresentation—Before 1964

Section 3. - Negligent Misstatement

Section 4. - Misrepresentation Act 1967

Section 5. - Collateral Warranty

Section 6. - Death

Section 7. - Frustration and Impossibility

Section 8. - Illegality

Section 9. - Economic Duress

Section 10. - Default of Other Party

(a) - Repudiation generally

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(b) - Repudiation by contractor

(c) - Repudiation by employer

(d) - Party cannot rely on own wrong

Chapter 7 - Negligence, Economic Loss, Liability to Third Parties and

Nuisance

Section 1. - Introduction

Section 2. - Liability for Physical Damage

Section 3. - Liability for Economic Loss

Section 4. - Specific Categories of Negligence

(a) - Negligent misstatement

(b) - Possible further categories

Section 5. - Liability to Third Parties and Nuisance

(a) - Who is liable?

(b) - Where fire is negligently caused on the site by the contractor in performance of
the contract and spreads, causing damage

(c) - Nuisance from building operations

Chapter 8 - Delay and Disruption Claims

Section 1. - Introduction

Section 2. - Time for Completion

(a) - Express completion date

(b) - Time of the essence

(c) - Reasonable time to complete

Section 3. - Extension of Time

(a) - Purpose of extension of time clauses

(b) - Grounds for an extension of time

(c) - Concurrent causes of delay

(d) - Procedure, notice provisions and conditions precedent

Section 4. - Delay Analysis

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(a) - Different techniques

(b) - Base line programme

(c) - As-built programme

(d) - Critical path analysis

(e) - Primacy of the factual investigation

Section 5. - Disruption Claims

(a) - Definition

(b) - Causes of disruption

(c) - Proof of disruption

Chapter 9 - Financial Recovery and Causation

Section 1. - Principles upon Which Damages are Awarded

Section 2. - Various General Considerations

Section 3. - Contractor’s Claims

(a) - Claims under the express provisions of the building contract

(b) - Types of claim

(c) - Contractor’s claims for breach of contract

(d) - Global claims

Section 4. - Employer’s Claims

(a) - Claims under the express provisions of the building contract

(b) - Claims for breach of contract

Section 5. - Causation and Concurrent Causes

Chapter 10 - Liquidated Damages and Penalties

Section 1. - Generally

Section 2. - Defences to Claim for Liquidated Damages

(a) - Agreed sum is a penalty

(b) - Omission of date in contract

(c) - Waiver
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(d) - Final certificate

(e) - Employer causing delay

(f) - Breach of condition precedent by employer

(g) - Extension of time

(h) - Rescission or determination

Chapter 11 - Default of the Parties—Various Matters

Section 1. - Forfeiture Clauses

(a) - The nature of forfeiture clauses

(b) - The mode of forfeiture

(c) - Employer’s default

(d) - Effect of forfeiture

Section 2. - Materials and Plant

(a) - Ownership of materials and plant

(b) - Vesting clauses

Section 3. - Lien

Section 4. - Defects and Maintenance Clauses

(a) - Meaning of terms

(b) - Investigation for defects

(c) - Notice is required

(d) - Alternative claim in damages

(e) - Indemnity

(f) - Liability after expiry of period

Section 5. - Guarantees and Bonds

(a) - Guarantees

(b) - Bonds

Section 6. - Claim for Breach of Confidence

Chapter 12 - Various Equitable Doctrines and Remedies

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Section 1. - Estoppel

Section 2. - Waiver

Section 3. - Variation and Rescission

Section 4. - Rectification

Section 5. - Specific Performance

Section 6. - Injunction

Chapter 13 - Assignments, Substituted Contracts and Sub-Contracts

Section 1. - Assignments

(a) - Assignment by contractor of burden

(b) - Assignment by contractor of benefit

(c) - Assignment by employer of burden

(d) - Assignment by employer of benefit

Section 2. - Substituted Contracts

Section 3. - Sub-contractors

(a) - Liability for sub-contractors

(b) - Relationship between sub-contractors and employer

(c) - Prime cost and provisional sums

Section 4. - Nominated Sub-contractors And Nominated Suppliers

(a) - Delay in nomination

(b) - Problems inherent in nomination

(c) - Express terms of main contract

(d) - Implied terms of main contract

(e) - Repudiation by nominated sub-contractor

(f) - Protection of employer

Section 5. - Relationship Between Sub-contractor and Main Contractor

Chapter 14 - Architects, Engineers and Surveyors

Section 1. - Introduction
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Section 2. - Meaning and Use of the Term “Architect”

Section 3. - Registration

Section 4. - The Position of the Architect

(a) - The contract with the employer

(b) - Architects’ authority as agent

(c) - Excess of authority by architect

(d) - Architects’ personal liability on contracts

(e) - Fraudulent misrepresentation

(f) - Misconduct as agent

(g) - Architects’ duties to the employer

(h) - Architects’ duties in detail

(i) - To advise and consult with the employer on law and practice

(ii) - To examine the site, sub-soil and surroundings

(iii) - To consult with and advise the employer as to the proposed work

(iv) - To prepare sketch plans and a specification with an estimate

(v) - To elaborate and, if necessary, modify or amend the plans

(vi) - To consult with and advise the employer as to obtaining tenders

(vii) - To supply the builder with such further drawings and instructions and
supervise the work

(viii) - To perform their duties to the employer and generally to act as the
employer’s agent

(i) - Breach of architects’ duties to employer

(j) - Duration of architects’ duties

(k) - Remuneration

(l) - The architects’ lien

(m) - Property in plans and other documents

(n) - Copyright in plans and design

(o) - Architects’ duties to contractors and others

Section 5. - Engineers and Others

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Section 6. - Quantity Surveyors

(a) - Surveyors’ duties generally

(b) - Architects’ authority to engage quantity surveyor

(c) - Surveyors’ duties to employer

(d) - Remuneration

(e) - Duties to contractor and others

Chapter 15 - Public Procurement

Section 1. - European Union Legislation

(a) - Introduction

(b) - Outline of new legislation

(c) - New procurement directives

(d) - Enforcement

(e) - Defence and security

(f) - Applicability of the PCR 2006 and the PCR 2015

(g) - Domestic legislation

(h) - Procedures for the award of public contracts

(i) - The basis for the award of public contracts

(j) - Utilities

(k) - Litigation

Section 2. - Common Law Remedies Relating to Public Procurement

Section 3. - Local Government Procurement Legislation

Chapter 16 - Various Legislation

Section 1. - Defective Premises Act 1972

Section 2. - Control of Pollution Act 1974 and Environmental Protection Act 1990

Section 3. - Limitation Act 1980 and Latent Damage Act 1986

Section 4. - Building Act 1984 and the Building Regulations

Section 5. - Insolvency Act 1986

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(a) - Insolvency generally

(b) - Stay of proceedings—winding up by the court

(c) - Insolvency of contractor

(d) - Insolvency of employer

Section 6. - Party Wall, etc. Act 1996

(a) - Party walls and party structures

(i) - Party walls

(ii) - Party fence walls

(iii) - Party structures

(iv) - Boundary walls

(b) - Building owners and adjoining owners

(c) - Serving of notices

(d) - The works permitted by the Act

(i) - Where there is no existing party wall or party fence wall

(ii) - Where there is an existing party structure

(iii) - Work within six metres of other buildings/structures

(e) - Dispute resolution under the Act

(i) - The agreed surveyor procedure

(ii) - The three-surveyor procedure

(iii) - The award

(f) - Remedies

(i) - Challenging the award—appeal

(ii) - Challenging the award—invalidity

(iii) - Remedies where works are not carried out in accordance with the Act

(g) - Rights and obligations incidental to the works

(h) - Capacity and liability of surveyors

Chapter 17 - Arbitration and ADR

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Section 1. - Alternative Methods of Dispute Resolution

Section 2. - Arbitration

Section 3. - What is an Arbitration Agreement?

Section 4. - Jurisdiction of the Arbitrator

Section 5. - Disqualification for Bias

Section 6. - Ousting the Jurisdiction of the Court

Section 7. - The Right to Insist on Arbitration

Section 8. - Arbitration Procedure

Section 9. - Control by the Court

Section 10. - International Arbitration under the ICC Rules

Section 11. - Mediation

Section 12. - Dispute Boards

Chapter 18 - The Housing Grants, Construction and Regeneration Act 1996

Section 1. - Introduction

Section 2. - Overview

Section 3. - Adjudication Under Statute

Section 4. - The Approach to Adjudication

Section 5. - Adjudication Procedure

Section 6. - Enforcement of the Adjudicator’s Decision

Section 7. - Grounds for Opposing Enforcement

Section 8. - Challenging an Adjudicator’s Decision

Section 9. - Payment

Section 10. - Right to Suspend Performance

Section 11. - Pay-When-Paid Clauses

Chapter 19 - Litigation

Section 1. - Introduction

Section 2. - Features of Construction Contract Litigation

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Section 3. - Pre-action Protocol and Mediation

(a) - Pre-action protocol for construction and engineering disputes

(b) - Mediation

(i) - Introduction

(ii) - Consequences of failing to mediate

(iii) - Mediation costs recoverable by the parties

Section 4. - Technology and Construction Court Judges

Section 5. - County Court Jurisdiction

Section 6. - Statements of Case

(i) - Statements of case

Section 7. - Particular Pleadings

Section 8. - Contractor’s “Claims”

Section 9. - Scott Schedule

Section 10. - Preparation for Trial

(a) - Preparation of evidence

(b) - Disclosure and inspection of documents

(c) - Preliminary point

(d) - Plans, photographs, models, mechanically recorded evidence

(e) - View

(f) - Settlement of actions

Section 11. - Set-off and Counterclaim

Section 12. - Summary Judgment and Interim Payment

Section 13. - Interest

Section 14. - Costs

(a) - Costs are discretionary

(b) - Summary assessment of costs

(c) - Notice to admit facts

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(d) - Payment into court and offers to settle

(e) - Written offers

(f) - Costs where there are cross-claims

Chapter 20 - The JCT Standard Form of Building Contract, 2011 Edition

Section A. - Introduction

Section B. - 2011 Form: Introductory

Section C. - 2016 Form: New Provisions

Section D. - 2005 Form: Key Features

Section E. - 2011 Form: Structure and Layout

Section F. - 2011 Form: Changes Since 2005 Form

Section G. - 2011 Form: Amendments

Articles of Agreement

Conditions

Section 1 - Definitions and Interpretation

Section 2 - Carrying Out the Works

Section 3 - Control of the Works

Section 4 - Payment

Section 5 - Variations

Section 6 - Injury, Damage And Insurance

Section 7 - Assignment, Third Party Rights And Collateral Warranties

Section 8 - Termination

Section 9 - Settlement of Disputes

Schedules

Chapter 21 - The Infrastructure Conditions of Contract, 2014 edition

Section A. - Introduction

Part B. - The New ICC Conditions

Section 1. - Definitions and Interpretation

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Section 2. - Governing Law, Communications and Jurisdiction

Section 3. - Assignment and Subcontracting

Section 4. - The Contract and Provision of Information

Section 5. - The Engineer

Section 6. - Responsibility of Parties

Section 7. - Nominated Sub-contractors and Direct Contractors

Section 8. - Risk

Section 9. - Programme and Time for Completion

Section 10. - Performance and Completion

Section 11. - Measurement, Valuation and Payment

Section 12. - Changes to the Works and Valuation

Section 13. - Additional Payment and Final Account

Section 14. - Force Majeure

Section 15. - Termination for Default

Section 16. - Contractor’s Equipment and Materials

Section 17. - Insurances

Section 18. - Bonds and Securities

Section 19. - Resolution of Disputes

Section 20. - BIM

Part C. - Supplementary Clauses

Section 21. - Milestones

Section 22. - Sustainability

Section 23. - Employer Furnished Materials

Section 24. - Other Supplementary Clauses

Chapter 22 - The FIDIC Standard Forms

Section 1. - Introduction

Section 2. - General Provisions

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Section 3. - The Employer

Section 4. - The Engineer

Section 5. - The Contractor

Section 6. - Time for Completion of the Works

Section 7. - Payment for the Works

Section 8. - Unforeseen Physical Conditions

Section 9. - Contractual Termination

Section 10. - Tiered Dispute Resolution

Chapter 23 - NEC3 Contract

Section 1. - Introduction

Section 2. - General

Section 3. - The Contractor’s Main Responsibilities

Section 4. - Time

Section 5. - Testing and Defects

Section 6. - Payment

Section 7. - Compensation Events

Section 8. - Title

Section 9. - Risk Allocation And Insurance

Section 10. - Termination

Section 11. - Dispute Resolution

Appendix A - The Housing Grants, Construction and Regeneration Act 1996

as amended by the Local Democracy, Economic Development and
Construction Act 2009

The Housing Grants, Construction and Regeneration Act 1996 as amended by the
Local Democracy, Economic Development and Construction Act 2009

Appendix B - The Scheme for Construction Contracts (England and Wales)

Regulations 1998

The Scheme for Construction Contracts (England and Wales) Regulations 1998

© 2017 Sweet & Maxwell

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