Scholarly Paper

Contracting in a Global World: Application of

the “Time at Large” Principle
Salwa A. Fawzy 1; Islam H. El-adaway, M.ASCE 2; and Tarek H. Hamed, Ph.D. 3

Abstract: The time at large principle was created within the common law legal system, and contractors are familiar with its application
under such doctrine. However, in today’s global world where many construction firms may conduct projects in countries that follows the civil
Downloaded from ascelibrary.org by New York University on 06/28/16. Copyright ASCE. For personal use only; all rights reserved.

law legal system, the application of the time at large principle remains unknown. This paper discusses the application of the time at large
principle within the doctrine of the civil law systems. This research uses a two-step interdependent research methodology. First, the time at
large principle is explained, and the circumstances supporting its success within the common law legal system are explained. Second, the
authors critically analyzed how the time at large doctrine can still be applied and used in light of the French Civil Code and the Egyptian Civil
Code because both form the base of the legal framework for many countries in Europe, Africa, Latin America, and the Middle East. Accord-
ingly, the authors determined the relevant legal principles on which the argument of time at large can be based in the civil law system. To this
end, it is concluded that general legal principles in civil law jurisdictions could permit the court or tribunal a broad discretion to adjust the
recoverability of damages or to vary the standards of performance under the contract. This is specifically applicable in circumstances where it
has become unfair and unconscionable to allow the employer to enforce the contractor to comply with fixed completion dates and to recover
liquidated damages due to preventative acts by the employer. This research would help contractors—who are conducting projects in countries
that follow the civil law legal system—better understand how time could become at large based on the inoperability of the extension of time
procedures. DOI: 10.1061/(ASCE)LA.1943-4170.0000170. © 2015 American Society of Civil Engineers.
Author keywords: Time at large; Delay and disruption; Extension of time; Common law and civil law.

Introduction On the other hand, if the contractor is prevented from complet-

Most construction contracts specify a completion date or a time for
completion of the works. Construction projects are subject to a
wide matrix of risks causing delays beyond the dates for comple-
tion. Thus, most construction contracts contain provisions which
identify potential delay situations, provide a mechanism for adjust-
ing the time for completion, and define the associated procedures,
rights, and obligations in these cases. If the contractor fails to com-
plete within the specified time for completion, or any extensions
thereto in accordance with the contract, he would be liable for dam-
ages for that failure, which are usually specified in the contract in
the liquidated damages clause. Delay analysis is used to determine
the cause(s) of the delay to ascertain whether an extension of time
should be awarded. The analysis of delays in construction projects
is difficult and complicated because of the large number of individ-
ual activities that have to be dealt with, even for a relatively simple
project (Menesi 2007). The purpose of the delay analysis is to cal-
culate the contribution of each party to the total project delay.
1
Contracts Manager, FCIArb, Dar Al Mimar Group; and Instructor, En-
gineering and Sciences Services at the American Univ. in Cairo, 1 Abu
Bakr El Seddik St., Dokki, Giza, Egypt. E-mail: salwafawzy@gmail.com
2
Associate Professor and Construction Engineering and Management
Program Coordinator, Dept. of Civil and Environmental Engineering, Univ.
of Tennessee—Knoxville, 851 Neyland Dr., 417 John D. Tickle Building,
Knoxville, TN 37996 (corresponding author). E-mail: eladaway@utk.edu
3
Instructor, Construction Contracts and Claims, Faculty of Engineering,
Cairo Univ., Egypt. E-mail: tarek3hs@yahoo.com
Note. This manuscript was submitted on June 30, 2014; approved on
February 4, 2015; published online on March 12, 2015. Discussion period
open until August 12, 2015; separate discussions must be submitted for
individual papers. This paper is part of the Journal of Legal Affairs
and Dispute Resolution in Engineering and Construction, © ASCE,
ISSN 1943-4162/04515001(8)/$25.00.
ing by the specified completion date by a reason for which the em-
ployer is responsible and there is no corresponding right to extend
the time for completion or it is not properly extended, time becomes
at large. The phrase time at large is much loved by contractors,
because it has about it the ring of plenty; the suggestion that the
contractor has as much time as he wants to finish the works
(Eggleston 2009). However, this is not what it means. If time be-
comes at large, the employer can no longer insist upon the com-
pletion date, and there is no enforceable date for completion of
the works. However, the contractor is still obliged to complete the
works within what-so-called a reasonable time (Pickavance 2006).
The importance of time becoming at large is that the employer loses
his entitlement to deduct liquidated damages for delay, and the em-
ployer can claim only for those losses resulting from the delay
which can actually be proved (Murdoch and Hughes 2008). It is
of the employer’s benefit to include a provision in the contract
which allows for extending the time for completion in case of de-
lays for reasons for which the employer is responsible. In such case,
the employer would retain the entitlement to deduct liquidated
damages in case the contractor fails to complete the works by
the revised completion date. The time at large principle was created
within the common law legal system, and contractors are familiar
with its application under such doctrine. However, in today’s global
world where many construction firms may conduct projects in
countries that follow the civil law legal system, the application
of the time at large principle remains unknown.
Goal and Objectives
This paper discusses the application of the time at large principle
within the doctrine of the civil law systems. This research would
help contractors—who are conducting projects in countries that

© ASCE 04515001-1 J. Leg. Aff. Dispute Resolut. Eng. Constr.

J. Leg. Aff. Dispute Resolut. Eng. Constr., 2015, 7(3): 04515001

 follow the civil law legal system—better understand how time
could become at large based on the inoperability of the extension
of time procedures.
Methodology
This paper uses a two-step interdependent research methodology.
First, the time at large principle is explained, and the circumstances
supporting its success within the common law legal system are
explained. Second, the authors critically analyzed how the time
at large doctrine can still be applied and used in light of the French
Civil Code and the Egyptian Civil Code as both form the base of
the legal framework for many countries in Europe, Africa, Latin
Downloaded from ascelibrary.org by New York University on 06/28/16. Copyright ASCE. For personal use only; all rights reserved.
America, and the Middle East.
Time at Large under the Common Law Legal
System
Time for Completion
Most construction contracts specify a date for completion of the
works. Time for completion may be fixed either by reference to
a specified date or to a construction period. In the latter case,
it is essential that a precise completion date can be established.
Accordingly, there should be a defined commencement date from
which time runs (Eggleston 2009). If the parties fail to agree a
specified date for completion or a construction period within which
works should be completed, a term is implied that the obligation
will be carried out within a reasonable time.
Liquidated Damages for Delay
Failure by the contractor to complete the works on time as required
by the contract is a breach of contract, which gives rise at common
law to the possibility of a claim for damages for that breach. In
construction contracts, the parties usually agree on liquidated dam-
ages providing that a contractor who is guilty of failure to complete
the works by the contractual completion date (as extended where
appropriate) shall pay or allow a certain amount of liquidated dam-
ages for every day or week of delay (Murdoch and Hughes 2008). If
the damages are not fixed in the contract, then they are referred to as
unliquidated damages which is a sum which is neither fixed nor
agreed, but must be proved in court or arbitration (Chappell et al.
2005). In such case, if the employer wishes to recover damages
attributable to delay, the employer has the legal burden to substan-
tiate the actual damages he incurred and an arbitrator or the court
would be responsible for assessing their value as compensation for
the actual losses suffered by the employer attributable to the delay
(Trauner et al. 2009). Liquidated damages may be defined as the
genuine preestimate of the loss or damage which would probably
arise as a result of the particular breach [see Philips Hong Kong Ltd
v. Attorney General of Hong Kong (1993) 61 BLR 41].
The liquidated damages clause is of advantage to both the em-
ployer and the contractor. When there is an agreed upon liquidated
damages for delay, the employer does not need to prove losses
attributable to delays, instead of facing the difficulty and expense
of proving the actual damage which the delay may have caused him
“see Clydebank v. Castenada [1905] AC 6 and Peak Construction
(Liverpool) Ltd v. McKinney Foundations Ltd (1970) 1 BLR 111.”
On the other hand, the damages payable by the contractor in case of
his delay in completing the works would be limited to the liqui-
dated damages, even if the accurate forecast of the probable loss
exceeds the sum expressed as liquidated damages “see Cellulose
© ASCE 04515001-2
J. Leg. Aff. Dispute Resolut. Eng. Constr., 2015, 7(3): 04515001
Acetate Silk Co Ltd v. Widnes Foundry (1925) Ltd [1933] AC
20.” Thus, the effect of an agreement for liquidated damages is
to place a limitation on the contractor’s liability for damages for
delay to completion of the works beyond the completion date
and the stipulated sum will be payable whether or not the sum
is actually incurred and no matter how the loss should in fact arise
(Pickavance 2010) “see BFI Group of Companies Ltd v. DCB
Integration Systems Ltd [1987] CILL 348.” Thus, if a provision
for liquidated damages for delay is included in the contract, both
parties will be able to assess the risk they bear. In addition, disputes
related to such matter would be minimized “see Philips Hong Kong
Ltd v. Attorney General of Hong Kong (1993) 61 BLR 41.”
In order for the liquidated damages to be payable, there must be
a definite date fixed by the contract from which the damages can
run (Uff 2009). This date may be the completion date originally
fixed by the parties or any other date properly fixed under the pro-
visions of an extension of time clause (Murdoch and Hughes 2008).
Extension of Time Clauses
Extension of time provisions include the parties’ agreement under a
building contract as to how the risk of delay should be apportioned
between them “see Henry Boot Construction Ltd v. Central Lanca-
shire New Town Development Ltd (1980) 15 BLR 1.” The causes
of delay could be the responsibility of the employer, the contractor
or neither of them, i.e. are neutral events. Most building contracts
include extension of time clauses, if the works were delayed for
reasons beyond the contractor’s responsibility. Hence, the exten-
sion of time clause allows the contractor more time to complete
the works and, thus, reduce or remove its liability for liquidated
damages.
Extension of time provisions are viewed as benefitting the con-
tractor in that they protect the contractor from a claim for damages
in respect of its failure to complete by the original contractual date
for completion and provide certainty in the event of a delay caused
by the contractor or for which he is responsible under the contract
(Furst et al. 2012). Extension of time clauses are also for the benefit
of the employer because they enable the original completion date to
be re-fixed where delay to the completion of the works has been
caused by matters which are the employer’s responsibility, thereby
retaining the benefit of a clearly identified completion date and con-
sequently any related entitlement on the employer’s part to liqui-
dated damages if the works were delayed by a reason for which he
is responsible (Furst and Ramsey 2012 and MacRoberts 2008).
The time for completion can only be extended where the con-
tract permits, and strictly in accordance with the provisions of the
contract (Murdoch and Hughes 2008). Accordingly, it is of great
importance to include the likely causes of delay in the extension of
time clause and to ensure that a proper mechanism for extension
of time is included in the contract (Bunni 2005). Furthermore,
the extension of time clauses should include fully comprehensive
wording, in order to ensure that all delays by the employer or the
architect/engineer are properly catered for (Knowles 2005 and
Fawzy and El-adaway 2013).
The construction of the extension of time clauses was the
subject of several case laws. The extension of time clause is to be
construed against the party seeking to rely on the ambiguity in the
clause “see Multiplex Constructions (UK) Ltd v. Honeywell
Control Systems Ltd [2007] EWHC 447 (TCC), [2007] BLR
195, 111 Con LR 78.” Accordingly, it was held that the use of
general words like ‘other unavoidable circumstances’ and ‘other
causes beyond the contractor’s control’ to define an event that
will establish a right to an extension of time may not be construed
so as to apply to specific delay events caused by the employer
J. Leg. Aff. Dispute Resolut. Eng. Constr.
 (Fawzy and El-adaway 2013) “see Peak Construction (Liverpool)
Ltd v. McKinney Foundations Ltd (1970) 1 BLR 111; Wells v.
Army & Navy Co-operative Society Ltd (1902) 86 LT 764
(Wright J); Perini Pacific v. Greater Vancouver Sewerage & Drain-
age District (1966) 57 DLR (2d) 307 (Bull JA).” Where, however,
the contractor seeks to rely upon an ambiguity to argue that the
act of prevention in question does not fall within the extension
of time provision, then the provision would probably be construed
contra proferentem against the contractor and a wide interpretation
of the clause in question would be adopted (Furst et al. 2012).
Under the common law, if there is no express provision to ex-
tend the time for completion for a delay caused by events over
which the contractor may genuinely have no control, such as
weather, strikes, labour or materials shortages, or damage or ob-
Downloaded from ascelibrary.org by New York University on 06/28/16. Copyright ASCE. For personal use only; all rights reserved.
struction by third parties for whom the employer is not responsible,
the contractor takes the risk of such delay, unless such events
are severe enough as to frustrate the contract entirely, which
will only rarely occur in a construction context (Bunni 2005;
Wallace 2012).
Prevention Principle
As mentioned earlier in this paper, if there is no express provision
to extend the time for completion for a delay caused by an event
which is not the fault of the employer, the contractor takes the risk
of that delay “see Percy Bilton Ltd v. Greater London Council
(1982) 20 BLR 1.” The situation is different if the cause of delay
is caused by the employer. At common law, the contractor’s obli-
gation to complete the works within the time for completion is lost,
if the works are delayed by a reason for which the employer is
responsible “see Dodd v. Churton (1897) 1 QB 562.” In such
situation, time is said to be ‘at large’, and the contractor’s obligation
is merely to complete the works within a reasonable time. Lord
Fraser of Tullybelton stated in Percy Bilton Ltd v. Greater London
Council (1982) 20 BLR 1, the following:
The general rule is that the main contractor is bound to complete
the work by the date for completion stated in the contract. If he
fails to do so, he will be liable for liquidated damages to the
employer : : : That is subject to the exception that the employer
is not entitled to liquidated damages if by his acts or omissions
he has prevented the main contractor from completing his work
by completion date : : : These general rules may be amended by
the express terms of the contract.
Time is said to be ‘at large’ as a result of the effect of what is
known as the ‘prevention principle’ that is a party cannot insist on
the performance of a contractual obligation by the other if it is itself
the cause of the non-performance “as per Vaughan Williams L.J. in
Barque Quilpe Ltd v. Brown [1904] 2 K.B.264 at 274.” In such
situation, the contractor is not obliged to complete by the fixed
completion date and there is no date from which the liquidated
damages can be calculated (Fawzy and El-adaway 2013) “see Wells
v. Army & Navy Co-operative Society Ltd (1902) 86 LT 764; T &
R Duncanson v. The Scottish County Investment Co Ltd 1915 S.C.
1106; Rapid Building v. Ealing (1984) 29 BLR 5.”
The cause of delay by the employer is often referred to as an ‘act
of prevention’. It is worth noting that acts of prevention by the
employer could be a breach of contract by the employer such as
delay in giving the contractor essential instructions, failure by
the employer to give possession of the site, delay in providing
plans, or by failing to deliver components it is bound to provide
under the contract “see Holme v. Guppy (1838) 3 M & W 387;
Roberts v. Bury Commissioners (1870) LR 5 CP 310; Perini Pacific
v. Greater Vancouver Sewerage and Drainage District (1966) 57
DLR (2d) 307.” On the other hand, the acts of prevention by
© ASCE 04515001-3
J. Leg. Aff. Dispute Resolut. Eng. Constr., 2015, 7(3): 04515001
the employer could be a perfectly legitimate action which causes
a delay beyond the time for completion such as instructing addi-
tional work or other variations “see Dodd v. Churton (1897) 1
QB 562.” Thus, an act of prevention by the employer would release
the contractor from its obligation to complete the works within a
fixed construction period or date, absent an effective extension of
time clause which provides otherwise “see Dodd v. Churton (1897)
1 QB 562; Holme v. Guppy (1838) 3 M & W 387.”
If time becomes ‘at large’, the employer loses its entitlement to
deduct liquidated damages because the employer is not entitled
to rely on a liquidated damages clause where the reason for late
completion was an act of prevention by the employer “see Peak
Construction (Liverpool) Ltd v. McKinney Foundations Ltd (1970)
1 BLR 111; McAlpine Humberoak v. McDermott International (1)
[1992] 58 BLR 1.” It is noted that even where the delay caused by
the employer is a very small part of the overall delay, the employer
cannot simply discount this delay and claim liquidated damages for
the remainder because the provision for liquidated damages fails
altogether (Murdoch and Hughes 2008).
If completion is delayed by an act of prevention, the employer
can still sue for general or unliquidated damages, which they can
prove to have resulted from the contractor’s breach “see Rapid
Building Group Ltd v. Ealing Family Housing Association Ltd
[1984] 29 BLR 5.” However, proof of such losses could be difficult
and costly and the entitlement of the employer to general damages
will operate as from the ending of a reasonable time for completion
(Eggleston 2009; Wallace 2012).
The above provisions were summarized in Trollope & Colls Ltd
v. North West Metropolitan Regional Hospital Board Metropolitan
Regional Hospital Board [1973] 2 All E.R. 260, as follows:
It is well settled that in building contracts : : : where there is a
stipulation for work to be done in a limited time, if one party by his
conduct—it may be quite legitimate conduct, such as ordering extra
work—renders it impossible or impracticable for the other party to
do the work within the stipulated time, then the one whose conduct
caused the trouble can no longer insist upon strict adherence to the
time stated. He cannot claim any penalties or liquidated damages
for non-completion in that time : : : The time becomes at large : : :
The work done must be done within a reasonable time.
If the contract allows for extension of time in respect of events of
delay by the employer, and a valid extension of time in respect of
the delay event which the employer has caused was made, the time
would not be set ‘at large’ and the employer would retain its right
to deduct liquidated damages from that extended date in the event
of non-completion by the contractor “see Multiplex Constructions
(UK) Ltd v. Honeywell Control Systems Ltd (No. 2) [2007] EWHC
447 (TCC); Adyard Abu Dhabi v. S.D. Marine Services [2011]
EWHC 848 (Comm), (2011) 136 Con LR 190.”
As the prevention principle has developed, careful drafting of
extension of time clauses has avoided many of the problems caused
by its operation by making express provision for the grant of an
extension of time in circumstances where the employer’s act or de-
fault might otherwise have triggered the operation of the principle
(Wallace 2012). Thus, many standard forms of contract now con-
tain extension of time clauses expressly based on acts of prevention
or default on the part of the employer or his agents, thereby suc-
cessfully defeating attempts to avoid the contractual liquidated
damages machinery on that ground (Wallace 2012).
Circumstances Allowing Time to Become at Large
In light of the prevention principle, the authors details the circum-
stances allowing “time at large” under the common law legal
system.
J. Leg. Aff. Dispute Resolut. Eng. Constr.
 No Contract
Most construction work will be carried out under a contract of some
sort. However, this is sometimes not the case. In the case of British
Steel Corp v. Cleveland Bridge and Engineering Co Ltd (1984) 24
BLR 94, no contract was created. The parties entered into negotia-
tions and the contractor sent a letter of intent to the subcontractor
requiring the latter to commence work on the construction of
various items pending executing a contract. The subcontractor de-
livered steel nodes. However, the contractor refused to pay for the
steel, saying that the late and out of sequence delivery had caused it
loss and that such late delivery was a breach of contract. The sub-
contractor claimed that there could be no fixed contractual delivery
date as there was no contract. It was held that no contract existed.
Goff LJ stated the following:
Downloaded from ascelibrary.org by New York University on 06/28/16. Copyright ASCE. For personal use only; all rights reserved.
In my judgment, the true analysis of the situation is this. Both
parties confidently expected a formal contract to eventuate. In these
circumstances, to expedite performance under that anticipated con-
tract, one requested the other to commence the contract work, and
the other complied with that request. If thereafter, as anticipated, a
contract was entered into, the work done as requested will be
treated as having been performed under that contract; if, contrary
to their expectation, no contract was entered into, then the perfor-
mance of the work is not referable to any contract the terms of
which can be ascertained, : : : .
The more interested reader is encouraged to also read Attwood v.
Emery (1856) 26 LJ CP 73, Hydraulic Engineering Co Ltd v.
McHaffie Goslett & Co (1878) 4 QBD 670 CA, Hick v. Raymond
& Reid [1893] AC 22, and Lyle Shipping Co v. Cardiff Corp
[1900] 2 QB 638 CA.
Contract with No Completion Date or Period for
Completion
Most construction contracts specify a completion date or a period
for completion. If a date or period for completion is not specified,
time becomes ‘at large’. In the case of J and J Fee Ltd v. The
Express Lift Co Ltd [1993] 34 ConLR 147, which concerned a
sub-contract, the parties agreed on the conditions of contract to
be used. There had been correspondence between the parties on
the completion date. Judge Peter Bowsher QC held that the com-
pletion date was that stated in the final non-contested letter and that
the date applied as if it had been written into the contract. The judge
added that if he was wrong on that issue, then there was a term
implied that Express Lift would complete within a reasonable time.
The judge gave a provisional view, without deciding, that based on
the documents before him that it would be impossible for Express
Lift to contend that a reasonable time for completion of the works
would be any later than the date they had consistently put forward
(Atkinson 2007). The more interested reader is encouraged to also
read Bruno Zornow (Builders) Ltd v. Beechcroft Developments Ltd
[1990] 51 BLR 16, Astea (UK) Ltd v. Time Group Ltd [2003]
EWHC 725 (TCC), and Machenair Ltd v. Gill & Wilkinson [2005]
EWHC 445 (TCC).
Contract Does Not Provide Extension of Time for Employer
Delaying Events
As discussed earlier in this paper, time is said to be at large as
a result of the effect of the prevention principle, since no person
can take advantage of the non-fulfillment of a condition, the
performance of which has been hindered by himself. In Dodd v.
Churton (1897) 1 QB 562, a contractor agreed to carry out con-
struction work for an employer. The employer ordered extra work,
which delayed completion. The contract included no extension
of time clause, but included a provision for liquidated damages.
The employer discounted such delay and claimed liquidated dam-
ages for the remainder. It was held by the Court of Appeal that the
© ASCE 04515001-4
J. Leg. Aff. Dispute Resolut. Eng. Constr., 2015, 7(3): 04515001
provision for liquidated damages could no longer be applied.
The more interested reader can also read Holme v. Guppy
(1838) 3 M & W 387.
Failure of the Contractual Machinery
Time could become at large where the provisions for extension of
time have not been properly administered or become inoperable,
depending on all the circumstances (Chappell et al. 2005; Knowles
2005; Eggleston 2009). For example, in the case of Wells v. Army &
Navy Co-operative Society Ltd (1902) 86 LT 764, the contract pro-
vided that the decision of the employer in matters related to exten-
sion of time was to be final. In that case, failure by the employer to
grant extension of time where they have delayed the commence-
ment of the contractor’s possession resulted in the employer being
unable to apply liquidated damages where the contract has an ex-
pired completion date (MacRoberts 2008; Wallace 2012).
Also, where the architect fails to give an extension of
time within the duration stipulated in the contract, the architect’s
power to give an extension will end and time will become at large
(Chappell et al. 2005). In Temloc Ltd v. Errill Properties Ltd (1987)
39 BLR 30, it was suggested that such time period is merely
directory, not mandatory. However, this view should be treated with
caution, since the court expressed such view in a situation where
the employer was attempting to use to its own advantage the archi-
tect’s failure to act (Chappell et al. 2005; Chappell 2007), which is
contrary to the principle that a party to a contract should not be
allowed to profit through its own breach “see Alghussein Establish-
ment v. Eton College [1988] 1 WLR 587 HL.” Judge Thornton later
confirmed that such duration was mandatory in the case of Cantrell
v. Wright & Fuller Ltd (2003) 91 Con LR 97.
It is sometimes argued that where there is an effective power
under the contract to extend the time for completion of the works,
failure to exercise that power competently and to determine a fair
and reasonable extension of time is not, of itself, sufficient to render
the completion date unenforceable and time at large. In the absence
of the decision being said to be final and binding and without
review, or outside the contractual provisions, so that it is not a de-
cision under the contract, or undermined by collusion, in the current
standard forms, it can be corrected by the operation of other
contractual machinery, for example reference to an adjudicator, ar-
bitrator, or the court to open up and review the decision (Pickavance
2010). Yet, it is a key requirement that the contractor should have
been able to truly know his position in advance regarding his time
obligations (i.e. for the engineer to make his decision and to
provide details of the extended completion date), in order for
the contractor to determine whether to add additional resources
in order to complete within the extended period and to avoid ex-
posure to claims for liquidated damages for delay (Bellhouse and
Cowan 2008).
The more interested reader can also read “Anderson v. Tuapeka
County Council (1900) 19 NZLR 1, Panamena Europea Navega-
cion Compania Limitada v. Frederick Leyland & Co Ltd [1947] AC
428, Hawl-Mac Construction Ltd v. Campbell River Supreme
Court of British Columbia, 60 BCLR 57, (1984-5) 1 Const LJ
370, and Bernhard’s Rugby Landscapes [1998] All ER 249.”
Employer Has Waived the Obligation to Complete by the
Specified Completion Date
Even if the parties have agreed a completion date, whether or not an
extension of time clause exists, time could become at large if the
employer waives the obligation to complete by the specified time
or date.
In the case of Charles Rickards Ltd v. Oppenheim [1950] 1 All
ER 420, Oppenheim placed an order with Rickards for the building
of a body on to the chassis of a motor car. The car was to be ready
J. Leg. Aff. Dispute Resolut. Eng. Constr.
 by a specified date. Rickards was late. Oppenheim kept on pressing
for delivery. Oppenheim wrote to Rickards: ‘I regret that I shall be
unable : : : to accept delivery : : : after July 25’. Oppenheim learnt
from Rickards that the body of the car would not be ready by that
date, thus, Oppenheim cancelled the order. Rickards completed the
car on October 18, but Oppenheim refused delivery. Rickards
brought an action claiming the price of the body of the car. It
was held that the initial stipulation making time of the essence
of the contract was waived by Oppenheim’s requests for delivery
after the original agreed dates, but there was an obligation on
Rickards to complete within a reasonable time.
Reasonable Time
Many contractors erroneously think the principle of “time at large”
Downloaded from ascelibrary.org by New York University on 06/28/16. Copyright ASCE. For personal use only; all rights reserved.
is a suggestion that the contractor has as much time as he wants
to complete the works (Eggleston 2009). This view is not correct.
If time becomes ‘at large’, the contractor is under an implied ob-
ligation to complete the works within a ‘reasonable time’ (Fawzy
and El-adaway 2013) “see Trollope & Colls Ltd v. North West
Metropolitan Regional Hospital Board [1973] 2 All ER 260.” A
contractor under the obligation to complete within reasonable time
“fulfils his obligation, notwithstanding protracted delay, so long as
such delay is attributable to causes beyond his control, and he has
acted neither negligently nor unreasonably” “see Hick v. Raymond
& Reid [1893] A.C. 22 at 32, HL.” What is deemed a reasonable
time will be determined in the light of all the circumstances that
existed at the time of the performance of the contract and is con-
sidered a question of fact, but excluding circumstances which were
under the control of the contractor “see Fisher v. Ford (1840) 12 Ad
2 El 654; Hick v. Raymond & Reid [1893] AC 22; Charnock v.
Liverpool Corp [1968] 1 WLR 1498, CA; British Steel Corp v.
Cleveland Bridge and Engineering Co Ltd (1984) 24 BLR 94;
Shawton Engineering Ltd v. DGP Group International Ltd [2005]
EWCA Civ 1359.” It is noted though that the burden of proof rests
with the party which seeks to rely on reasonable time or with the
party which asserts that the obligation to complete within a reason-
able time has been breached (Eggleston 2009).
Time at Large under the Civil Law Legal System
The primary principles in the civil law legal systems are codified in
legal codes which serve as the primary source of law, whereas case
law is held to be secondary and subordinate to statutory law. This
paper focuses on the French and Egyptian civil Law. On one hand,
the main provisions concerning the French law of contract are con-
tained in the French Civil Code (FCC). The FCC has been adopted
by many countries in Europe, Latin America, and Africa including
for example, Belgium, Luxembourg, Malta, Romania, Algeria,
Morocco, and Tunisia. The main provisions concerning the Egyp-
tian law of contract are contained in the Egyptian Civil Code
(ECC). The ECC has been the source of law for many countries
in the Middle Eastern including for example, Libya, Syria, Jordan,
Bahrain, Qatar, Kuwait and Iraq. Most of the aforementioned
countries are witnessing lots of the World Bank infrastructure de-
velopments projects and many international contractors are associ-
ated with such processes. Thus, this paper is timely to make these
contractors more enabled to understand how the “time at large”
principle can be applied under the civil law legal system governing
operations in these countries.
Definition and Effects of Contract
According to Article 1101 of the FCC, a contract is an agreement
by which one or several persons bind themselves, towards one or
© ASCE 04515001-5
J. Leg. Aff. Dispute Resolut. Eng. Constr., 2015, 7(3): 04515001
several others, to transfer, to do or not to do something. Thus con-
tractual liability is in principle absolute (Axel and Sebastian 2010).
Under the Egyptian law, a contract is an agreement between two
parties to create a legal effect; whether that effect is to create
an obligation, transfer it, amend it or end it (El-Sanhoury 1989).
Furthermore, agreements lawfully entered into take the place of
the law for those who have made them (FCC Article 1134 and
ECC Article 147), as long as they do not contradict mandatory pro-
visions of the proper law (ordre public). In addition, the obligations
resulting from contracts must be performed in good faith [FCC
Article 1134(3) and ECC Article 148(1)].
Non-performance and Associated Remedies
The non-performance may occur in different ways: it may be total
(e.g. the contractor who did not build anything), partial (e.g. the
contractor who executed only the masonry works); moreover, a de-
fective performance (e.g. delayed or malfunctioning works) is con-
sidered a non-performance (El-Sanhoury 1989). Under the French
law, a creditor who has not received the contractual performance to
which he is entitled may suspend performance of his obligations
“see French Commercial Court, 1er décembre 1992 (Exception
d’inexécution).” However, it has to be proportionate to the non-
performance occurred. A similar result could be reached under
the Egyptian law, which provides that, in a bilateral contract where
correlative obligations are due for performance; either of the con-
tracting parties may refrain from performing his obligation if the
other party does not perform his own obligation (ECC Article
161). Other available remedies are that the creditor may compel the
debtor to perform his obligations (FCC Article 1184 and ECC
Article 203). Furthermore, under the FCC, the creditor may apply
to court that the debtor is not meeting a fundamental obligation
under the contract and the judge may compel the debtor to termi-
nate the contract with damages (FCC Article 1184). Under the
ECC, if it is impossible for the debtor to perform his obligation,
he will be ordered by a court ruling to pay damages for failure
to fulfill his commitments, unless he proves that the impossibility
to perform the obligation comes from an external cause which is not
attributable to him. The same ruling shall be passed if the debtor
delays the performance of his obligation (ECC Article 215). Fur-
thermore, under the ECC, in contracts binding two parties, if a party
refrains from performing his obligation, the other party may, after
warning the debtor, demand the implementation of the contract or
termination of the contract and it may also claim damages in both
cases, if applicable (ECC Article 157).
Thus, the judge has a large discrepancy as to the remedies
he grants; he may grant the debtor an extension of time, or refuse
to terminate the contract but to award damages to the creditor,
or terminate the contract totally or partially while awarding
or not awarding damages to the creditor (FCC Article 1184 and
ECC Article 157) (El-Sanhoury 1989; Axel and Sebastian
2010).
Damages and Exemption of Damages
Damages due to a creditor are, as a rule, for the loss which he has
suffered and the profit which he has been deprived of, subject to the
exceptions provided at law [FCC Article 1149 and ECC Article 221
(1)]. Damages may include only what is an immediate and direct
consequence of the non-performance of the agreement [FCC
Article 1151 and ECC Article 221(1)]. The contracting parties
may agree on the damages in case of non-performance (FCC
Article 1152 and ECC Article 223). Under the FCC, the creditor
may not be awarded a greater or lesser sum; nevertheless, the judge
J. Leg. Aff. Dispute Resolut. Eng. Constr.
 may even of his own motion moderate or increase the agreed
damages, where it is obviously excessive or ridiculously low
(FCC Article 1152). Under the ECC, the judge may reduce the
damages if the debtor proves that the estimation was exaggerated
to a big extent or that the obligation was executed in part (ECC
Article 224). Furthermore, under the ECC, if the actual losses
exceed the amount of the damages agreed upon in a contract,
the creditor may not claim more than the agreed upon damages,
unless he proves that the debtor has committed fraudulence or gross
error (ECC Article 225).
A debtor shall be ordered to pay damages by reason of non-
performance or delay in performing, if he does not prove that the
non-performance is due to an external cause, even in absence of bad
faith (FCC Article 1147 and ECC Article 215).
Downloaded from ascelibrary.org by New York University on 06/28/16. Copyright ASCE. For personal use only; all rights reserved.
It is noted that, under the FCC, the terms agreed damages and
penalty are used interchangeably. The FCC defines a penalty as a
clause by which a person, in order to ensure performance of an
agreement, binds himself to something in case of non-performance
(FCC Article 1226). A penalty or agreed damages is, therefore a
compensation for the damages which the creditor suffers from
the non-performance of the principal obligation (FCC Article
1229). Thus, in contrast to the common law, the penalty clauses
with punitive aims are acceptable, in principle, in civil law legal
systems (Axel and Sebastian 2010). It is worth noting that where
an undertaking has been performed in part, the judge may, even of
his own motion, decrease the agreed penalty in proportion to the
interest which the part performance has procured for the creditor
(FCC Article 1231). In most civil law countries penalty clauses
or agreed damages clauses are subject to judicial control by the
courts and they usually do not limit the liability for delay (Axel
and Sebastian 2010).
Application of Time at large
As previously discussed, “time at large” is a common law concept.
In most civil law countries, this concept remains unknown as
distinctive. In order to determine whether time at large could be
applied in civil law jurisdictions, it is necessary to determine
whether there are any relevant legal principles on which the argu-
ment of time at large can be based (Bellhouse and Cowan 2008).
These will clearly vary between the different civil codes throughout
the world; however, general legal principles in civil law jurisdic-
tions sometimes permit the court or tribunal a broad discretion
to adjust the recoverability of damages or to vary the standards
of performance under the contract, where it is generally equitable
to do so (Bellhouse and Cowan 2008). According to the French law,
the contractor is under the obligation to complete the works in a
specific duration; if there is no agreement on the duration of com-
pletion, the contractor will be under the obligation to complete
within a reasonable period, taking into consideration the nature
of the works, the trade custom and the contractor’s capabilities
and methods (El-Sanhoury 1989). The same obligations exist in
the Egyptian law (El-Sanhoury 1989; Shanab 1963). This is similar
to the case in common law, where there is no agreement on the
period for completion, either because there was no such agreement
within the contract itself or because, although there is an agreement
of the period of completion within the contract, no extended com-
pletion date or period for completion could be fixed by the terms of
the contract whenever the original completion date becomes
invalid.
Furthermore, according to Article 1147 of FCC:
A debtor shall be ordered to pay damages, if there is occasion,
either by reason of the non-performance of the obligation, or by
reason of delay in performing, whenever he does not prove that
© ASCE 04515001-6
J. Leg. Aff. Dispute Resolut. Eng. Constr., 2015, 7(3): 04515001
the non-performance comes from an external cause which may
not be ascribed to him, although there is no bad faith on his part.
Article 215 of the ECC is similar to Article 1147 of FCC. The
former states that:
If it is impossible for the debtor to perform his obligation, he
will be ordered by a court ruling to pay damages for failure to fulfill
his commitments, unless he proves that the impossibility to perform
the obligation comes from an external cause which is not attribut-
able to him. The same ruling shall be passed if the debtor delays
the performance of his obligation.
The ‘external cause’ which exempts the debtor from his liability
to pay damages as a result of his delay in performing can be ap-
plied, inter alia, to provide relief from damages to a contractor who
has been delayed by an act of the employer, such as breach of
contract or the instruction of additional works (Bellhouse and
Cowan 2008). Thus, if the employer is delayed in the delivery
of material that it was under the obligation to provide and such
delay resulted in the delay to the construction works, the contractor
shall not be held responsible for the delay. In addition, if the em-
ployer delayed the payment of amounts due to the contractor, and
this resulted in the contractor’s delay in completion, the contractor
shall not be held responsible for such delay. Such act by the
employer which results in delay to the works does not need to
be a breach of contract, thus, if the employer issues instructions
for variations which result in the contractor’s delay in completion,
the contractor shall not be held responsible for such delay, if
he executes the variations within a reasonable period (Planiol
and Ripert 1954).
Thus, under the French law and the Egyptian law, the employer
will not be entitled to the agreed damages if, by his act or omission,
he prevented the contractor from completing the contract by the
agreed date (Axel and Sebastian 2010). This is analogous with
the concept of an ‘act of prevention’ by the employer under the
English law and the case of the common law where there is a com-
pletion date, but there is a delay by the employer and the contract
does not provide for an extension of time as a result of the employer
delaying event.
In addition, according to Article 1152 of FCC:
Where an agreement provides that he who fails to perform will
pay a certain sum as damages, the other party may not be awarded
a greater or lesser sum. Nevertheless, the judge may ‘even of his
own motion’ moderate or increase the agreed damages, where it
is obviously excessive or ridiculously low. Any stipulation to
the contrary shall be deemed unwritten.
Thus, it is possible for a contractor to seek a reduction in the
agreed damages that are recoverable by the employer where it
can show that the agreed damages exceed the actual loss that
the employer has suffered as a result of the delay to completion
(Bellhouse and Cowan 2008). In other words, if the contractor
can show that a specific part of the actual loss that the employer
has suffered is attributable to the employers own acts or failures,
then the agreed damages can be accordingly reduced. This could
be contended to be similar in a way to the consequence of time
becoming at large under the common law. However, under the
common law there is an advantage to the contractor that as a con-
sequence of time becoming at large, the employer loses his entitle-
ment to deduct agreed damages for delay and he can only sue for
the damages he can actually prove have resulted from the delay.
Thus, under the common law, the burden of proof of the actual
losses is shifted to the employer. It is noted, however, that there
is an advantage under the French Civil Law that, according to
Article 1152, there is no need for an act of prevention by the em-
ployer, in order for the damages to be reduced.
J. Leg. Aff. Dispute Resolut. Eng. Constr.
 Articles 223 and 224 of the ECC provide provisions that are
similar in a way to the provisions in Article 1152 of FCC. Article
223 states that:
The contracting parties may agree in advance on the amount
of damages, by specifying them in the contract or in a later
agreement : : :
Article 224 of the ECC states that:
1. The damages agreed upon shall not fall due if the debtor
proves that the creditor did not incur any losses.
2. The judge may reduce the damages if the debtor proves that
the estimation was exaggerated to a big extent, or that the
original obligation was executed in part.
3. All agreements in contradiction with the provisions of the two
previous paragraphs shall be null.
Downloaded from ascelibrary.org by New York University on 06/28/16. Copyright ASCE. For personal use only; all rights reserved.
The associated articles in the ECC lead to the same results re-
garding the contractor’s entitlement to a reduction to the agreed
damages that are recoverable by the employer, where it can show
that the agreed damages exceed the actual loss that the employer
has suffered, as a result of the delay. It is worth noting that Article
225 of the ECC states that:
If the actual losses exceed the amount of the damages agreed
upon in a contract, the creditor may not claim more than the agreed
upon damages, unless he proves that the debtor has committed
fraudulence or gross error.
The provision in Article 225 of the ECC contradicts with Article
1152 of FCC in that the former limits the judge’s authority to in-
crease the agreed upon damages to the cases of fraudulence or gross
error of the debtor. On the other hand, the latter allows the judge to
increase the agreed penalty, where it is obviously ridiculously low.
In an arbitration in Miami, where the substantive law was a civil
law and the contract was based on a modified version of the FIDIC
1987 Red Book, it was possible to argue that time had become
at large based on multiple arguments. These arguments included;
the inoperability of the extension of time procedures and failure
to follow the contractual programming obligations (Bellhouse
and Cowan 2008). This is analogous with the case of the common
law where the contract provides for extension of time in case
of delaying events, but there was a failure of the contractual
machinery.
Conclusion
The circumstances where time would become at large under the
common law legal system include: (1) where there is no contract;
(2) where there is a contract, but no completion date or period for
completion has been fixed by the terms of the contract; (3) where
there is a completion date, but there is a delay by the employer and
the contract does not provide for an extension of time as a result of
the employer delaying event; (4) where the contract provides for
extension of time in case of delaying events, but there was a failure
of the contractual machinery; and (5) where the employer has
waived the obligation to complete by the specified completion date.
To avoid the risk of time becoming at large within the common law
legal systems, the construction contract should include a well
drafted extension of time clause. In addition, it is important to in-
clude all possible causes of delay by or on behalf of the employer
in the extension of time clause. Most standard forms of contract
expressly provide for a mechanism for extension of time and a
provision for the payment of liquidated damages in case of delay
by the contractor in completion.
Although time at large is a common law concept, a similar po-
sition could be established under civil law jurisdictions. Meanwhile
the legal principles on which the argument of time at large could
© ASCE
J. Leg. Aff. Dispute Resolut. Eng. Constr., 2015, 7(3): 04515001
vary between the different civil codes throughout the world, general
legal principles in civil law jurisdictions sometimes permit the court
or tribunal a broad discretion to adjust the recoverability of dam-
ages or to vary the standards of performance under the contract
where it is generally equitable to do so. This is consistent with
the fundamental basis of the ‘time at large’ and ‘prevention prin-
ciple’ concepts: namely, to recognise that there are circumstances
where it has become unfair and unconscionable to allow the em-
ployer to enforce the contractor to comply with fixed completion
dates and to recover liquidated damages due to preventative acts by
the employer. It is noted that there is a difference in the approach to
the ‘prevention principle’ under the common law and the civil law,
which is the basis of the time at large concept under the common
law. Under the common law approach, acts of prevention by the
employer are anticipated by the parties and included in an extension
of time clause in the contract in order to prevent time becoming at
large, if the contractor is delayed by a cause for which the employer
is responsible. On the other hand, in civil law countries, no clear
system of claims for extension of time for completion exists. The
parties usually agree to a completion date. If such date is not
achieved, the parties will discuss the events which delayed the
project and a delay which is attributable to the employer will be
used as a defence against enforcing liquidated damages.
This research would help contractors—who are conducting
projects in countries that follow the civil law legal system—better
understand how time could become at large based on the inoper-
ability of the extension of time procedures.
References
List of Cases
Adyard Abu Dhabi v. S.D. Marine Services [2011] EWHC 848
(Comm), (2011) 136 Con LR 190 at [243]
Alghussein Establishment v. Eton College [1988] 1 WLR
587 HL
Astea (UK) Ltd v. Time Group Ltd [2003] EWHC 725 (TCC)
Attwood v. Emery (1856) 26 LJ CP 73
Barque Quilpe Ltd v. Brown [1904] 2 KB 264
Bernhard’s Rugby Landscapes Ltd v. Stockley Park Consortium
Ltd [1998] All ER 249
BFI Group of Companies Ltd v. DCB Integration Systems Ltd
[1987] CILL 348
British Steel Corp v. Cleveland Bridge and Engineering Co Ltd
(1984) 24 BLR 94
Bruno Zornow (Builders) Ltd v. Beechcroft Developments Ltd
[1990] 51 BLR 16
Cantrell v. Wright & Fuller Ltd (2003) 91 Con LR 97
Cellulose Acetate Silk Co Ltd v. Widnes Foundry (1925) Ltd
[1933] AC 20
Charles Rickards Ltd v. Oppenheim [1950] 1 All ER 420
Charnock v. Liverpool Corp [1968] 1 WLR 1498, CA
Clydebank v. Castenada [1905] AC 6
Dodd v. Churton (1897) 1 QB 562
Fisher v. Ford (1840) 12 Ad 2 El 654
Henry Boot Construction Ltd v. Central Lancashire New Town
Development Ltd (1980) 15 BLR 1
Hick v. Raymond & Reid [1893] AC 22
Holme v. Guppy (1838) 3 M & W 387
Hydraulic Engineering Co Ltd v. McHaffie Goslett & Co (1878)
4 QBD 670 CA
J and J Fee Ltd v. The Express Lift Co Ltd [1993] 34 Con
LR 147
04515001-7 J. Leg. Aff. Dispute Resolut. Eng. Constr.
 London Borough of Merton v. Stanley Hugh Leach Ltd (1985)
32 BLR 51
Lyle Shipping Co v. Cardiff Corp [1900] 2 QB 638 CA
Machenair Ltd v. Gill & Wilkinson [2005] EWHC 445 (TCC)
McAlpine Humberoak v. McDermott International (1) [1992] 58
BLR 1
Multiplex Constructions (UK) Ltd v. Honeywell Control Sys-
tems Ltd (No 2) [2007] EWHC 447 (TCC)
Panamena Europea Navegacion Compania Limitada v.
Frederick Leyland & Co Ltd [1947] AC 428
Peak Construction (Liverpool) Ltd v. McKinney Foundations
Ltd (1970) 1 BLR 111
Percy Bilton Ltd v. Greater London Council (1982) 20 BLR 1
Perini Pacific v. Greater Vancouver Sewerage & Drainage
Downloaded from ascelibrary.org by New York University on 06/28/16. Copyright ASCE. For personal use only; all rights reserved.
District (1966) 57 DLR (2d) 307
Philips Hong Kong Ltd v. Attorney General of Hong Kong
(1993) 61 BLR 41
Rapid Building Group Ltd v. Ealing Family Housing Associa-
tion Ltd [1984] 29 BLR 5
Roberts v. Bury Commissioners (1870) LR 5 CP 310
Shawton Engineering Ltd v. DGP Group International Ltd
[2005] EWCA Civ 1359
T & R Duncanson v. The Scottish County Investment Co Ltd
1915 SC 1106
Temloc Ltd v. Errill Properties Ltd (1987) 39 BLR 30
Trollope & Colls Ltd v. North West Metropolitan Regional
Hospital Board [1973] 2 All ER 260
Wells v. Army & Navy Co-operative Society Ltd (1902) 86
LT 764
Westminster Corp v. J Jarvis & Sons Ltd (1970) 7 BLR 64
Hawl-Mac Construction Ltd v. Campbell River Supreme Court
of British Columbia, 60 BCLR 57, (1984-5) 1 Const LJ 370
Anderson v. Tuapeka County Council (1900) 19 NZLR 1
Works Cited
Atkinson, D. (2007). Time at large, Atkinson Law, East Sussex,
England.
© ASCE
J. Leg. Aff. Dispute Resolut. Eng. Constr., 2015, 7(3): 04515001
Axel-Volkmar, J., and Gotz-Sebastian, H. (2010). FIDIC: A guide for
practitioners, Springer, Berlin, Heidelberg.
Bellhouse, J., and Cowan, P. (2008). Common law “Time at large”
Arguments in a civil law context, White & Case LLP, London,
England.
Bunni, N. G. (2005). The FIDIC forms of contract, Wiley-Blackwell, U.K.
Chappell, D. (2007). The JCT design and build contract 2005, 3rd Ed.,
Blackwell, London.
Chappell, D., Powell-Smith, V., and Sims, J. (2005). Building contract
claims, 4th Ed., Blackwell, U.K.
Eggleston, B. (2009). Liquidated damages and extensions of time, 3rd Ed.,
Blackwell, U.K.
El-Sanhoury, A. (1989). El Waseet in the explanation of the ECC, 2nd Ed.,
Dar El Nahda El Arabiya, Cairo, Egypt.
Fawzy, S., and El-adaway, I. (2013). “Time ‘at large’ within the common
law legal system: Application to standard forms of contract.” J. Leg.
Aff. Dispute Resolut. Eng. Constr., 10.1061/(ASCE)LA.1943-4170
.0000124, 04513002.
Furst, S., Ramsey, V., Hannaford, S., Williamson, A., Keating, D., and Uff,
J. (2012). Keating on construction contracts, Sweet & Maxwell, U.K.
Knowles, R. (2005). 150 contractual problems and their solutions, 2nd Ed.,
Blackwell, U.K.
MacRoberts, S. (2008). MacRoberts on scottish building contracts,
2nd Ed., Blackwell, U.K.
Menesi, W. (2007). “Construction delay analysis under multiple baseline
updates.” M.S. thesis, Univ. of Waterloo, Waterloo, ON, Canada.
Murdoch, J., and Hughes, W. (2008). Construction contracts law and
management, 4th Ed., Taylor & Francis, London, New York.
Pickavance, K. (2006). “Calculation of a reasonable time to complete when
time is at large.” Int. Constr. Law Rev., (23), 167–186.
Pickavance, K. (2010). Delay and disruption in construction contracts,
4th Ed., Sweet & Maxwell, U.K.
Planiol, M., and Ripert, G. (1954). Traité pratique de droit civil français,
tome 7, 2e édition, Obligations (2e partie), par Paul Esmein, Jean
Radouant, Gabriel Gabolde, Paris, Librairie générale de droit et de
jurisprudence, 1111.
Shanab, M. (1963). Explanation of the provisions of the construction
contracts, Dar El Nahda El Arabiya, Cairo, Egypt.
Trauner, T., Manginelli, W., Lowe, S., Nagata, M., and Furniss, B. (2009).
Construction delays, 2nd Ed., Oxford, Burlington, MA.
Uff, J. (2009). Construction law, 10th Ed., Sweet & Maxwell, U.K.
Wallace, D. (2012). Hudson’s building and engineering contracts,
12th Ed., Sweet & Maxwell, U.K.
04515001-8 J. Leg. Aff. Dispute Resolut. Eng. Constr.