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Construction Contracts

This fully revised and updated edition of Construction Contracts: Questions and
Answers includes 300 questions and incorporates 42 new judicial decisions, the
JCT 2016 updates and the RIBA Building Contracts and Professional Services
Contracts 2018 updates.
Construction professionals of all kinds frequently need legal advice that is
straightforward as well as authoritative and legally rigorous. Building on the
success of previous editions, David Chappell continues to provide answers to
real-world questions from his experience as consultant and Specialist Advisor to
the RIBA. Questions range in content from extensions of time, liquidated dam-
ages and loss and/or expense to issues of practical completion, defects, valuation,
certificates and payment, architects’ instructions, adjudication and fees.
Every question included has been asked of David Chappell during his career
and his answers are authoritative but written as briefly and simply as possible.
Legal language is avoided but legal cases are given to enable anyone interested to
read more deeply into the reasoning behind the answers. This is not only a use-
ful reference for architects, project managers, quantity surveyors and lawyers, but
also a useful student resource to stimulate interesting discussions about real-world
construction contract issues.

David Chappell is an architect and eminent author, specialising in construction

law, building contracts and architectural practice. Over a long career, he has been
a practising architect, contract administrator for a building contractor and for
the last thirty years a construction contracts consultant. He has held part-time
posts as senior research fellow, professor and visiting professor and lectured exten-
sively throughout the UK. He has been a Specialist Advisor to the Royal Institute
of British Architects since 1995 and Specialist Advisor to the Royal Society of
Ulster Architects since 1997. He is on the Adjudicator panel of the Royal Soci-
ety of Ulster Architects. Honorary Membership of the Royal Institute of Ulster
Architects was conferred in 2007. In 1999 he was awarded the CIOB Gold Award
in the First Literary Awards for the best textbook and the CIOB Commendation
2001 for law books. He has published numerous books and articles on construc-
tion contracts.
Construction Contracts
Questions and Answers

Fourth Edition

David Chappell
Fourth edition published 2021
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN
and by Routledge
52 Vanderbilt Avenue, New York, NY 10017
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2021 David Chappell
The right of David Chappell to be identified as author of this work
has been asserted by him in accordance with sections 77 and 78 of the
Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced
or utilised in any form or by any electronic, mechanical, or other means,
now known or hereafter invented, including photocopying and recording,
or in any information storage or retrieval system, without permission in
writing from the publishers.
Trademark notice: Product or corporate names may be trademarks
or registered trademarks, and are used only for identification and
explanation without intent to infringe.
First edition published by Routledge 2006
Third edition published by Routledge 2015
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging-in-Publication Data
Names: Chappell, David (David M.), author.
Title: Construction contracts: questions and answers / David Chappell.
Description: Fourth edition. | Abingdon, Oxon; New York: Routledge, 2021. |
Includes bibliographical references and index.
Identifiers: LCCN 2020026587 (print) | LCCN 2020026588 (ebook) |
ISBN 9780367532062 (hbk) | ISBN 9780367532086 (pbk) |
ISBN 9781003080930 (ebk)
Subjects: LCSH: Construction contracts—Great Britain. |
Construction contracts—Great Britain—Miscellanea.
Classification: LCC KD1641 .C479 2021 (print) |
LCC KD1641 (ebook) | DDC 343.4107/869—dc23
LC record available at https://lccn.loc.gov/2020026587
LC ebook record available at https://lccn.loc.gov/2020026588

ISBN: 978-0-367-53206-2 (hbk)

ISBN: 978-0-367-53208-6 (pbk)
ISBN: 978-1-003-08093-0 (ebk)
Typeset in Goudy
by codeMantra
Contents

Preface to the Fourth Edition xxii

Abbreviations used in the text xxiv

1 Tendering 1
1 Does the architect have a duty of care to the contractor when
issuing tendering information? 1
2 Can the lowest tenderer legally do anything if its tender is not accepted? 1
3 The contractor’s tender states that it is open for acceptance for six
weeks from the date of tender, but the contractor withdraws it after
three weeks citing a suddenly increased workload. Is the contractor
liable to the employer for the additional costs of a replacement
contractor? 3
4 Is a contractor bound by its price even if there is an error in tendering? 3
5 Does the architect have any particular duty to draw the attention
of the contractor to onerous terms or amendments in the contract
at the time of tender? 4
6 Is the architect responsible if the tender comes in over budget? 5

2 Pre-contract issues 7
7 The employer is in a hurry to start work. Is there a problem in the
issue of a letter of intent? 7
8 If a letter of intent is issued with a limit of £20,000, is the
employer obliged to pay a higher sum after allowing a contractor
to exceed the limit? 9
9 Can an architect be negligent for suggesting a letter of intent? 10
10 Can pre-contract minutes form a binding contract? 11
11 Has the contractor any remedy if the employer has said during
the tender period that the contractor can freely use certain
facilities on site but subsequently refuses to allow it? 12
12 Can there be two employers on one contract? 13
13 If the employer wishes to act as foreman, can each trade be
engaged on an MW contract? 13
vi Contents
14 The employer rejected a contractor’s tender and accepted a
different tender, but that tenderer went into liquidation before
starting on site. The employer then accepted the first tender, but
the contractor said it would have to increase the price. Is the
contractor allowed to do that? 14
15 What date should be put on a building contract? 14

16 If the employer cannot give possession on the due date, can

the matter be resolved by the architect giving an instruction to
postpone the Works? 16
17 In a refurbishment contract for 120 houses under SBC, the bills
of quantities say that the contractor can take possession of 8
houses at a time, taking possession of another house every time
a completed house is handed over. Is the contractor entitled to
possession of all 120 houses at once? 17
18 Can the project manager change the date of possession in the
contract? 18

19 What does ‘time-barred’ mean? 19

20 What is a letter of reliance? 20
21 Is the contractor bound to stick to its price if it was described as
an ‘estimate’? 20
22 If a contract is described as Guaranteed Maximum Price (GMP),
is this the most the contractor can receive no matter what changes
there are in the project? 21
23 If the employer is in a partnering arrangement with a contractor,
does that mean that the SBC does not count? 21
24 So-called partnering and many other contracts contain terms to
the effect that the parties will work together in the spirit of trust,
fairness and mutual co-operation. How far does that affect
other clauses? 23
25 What if no one notices the contractor’s serious financial error
until the contract is executed? 23
26 Can the contractor opt to ignore the architect and just deal with
the employer? 24
27 What if the parties sign one contract while thinking they are
signing another? 24
28 If a contractor does not have a proper contract but has carried out
work for the same company before on a written contract, will the
terms of that written contract apply again? 25
 Contents vii
29 The contractor has no written contract with the employer (A).
(A) instructed the contractor to do work and asked it to invoice
their ‘sister company’ (B). The contractor did so and (B) has not
paid despite reminders. 25
30 If a clause is deleted in a contract, is it just the same as if it had
never been there? 26
31 If the employer wishes to bring directly engaged contractors onto the
site to carry out special work, can the contractor refuse admittance? 27
32 If the employer has paid for materials on site which are
subsequently stolen, who is liable? 27
33 Under SBC, is there a contract if everyone acts as though there is? 28
34 What if an employer tells the architect he or she does not want a
building contract? 28
35 Can a contractor avoid a contract entered into under economic duress? 29
36 Under DB, if the employer provides a site investigation report and
the ground conditions are found to be different, who pays any extra cost? 30
37 The contractor failed to take out insurance against its liabilities
in regard to injury or damage to persons or other property. Does
that mean that the employer cannot claim against the contractor if
injury or damage occurs? 31
38 What are the dangers for employer and contractor in entering into
a supplementary agreement? 32
39 If a contractor must do something ‘forthwith’, how quickly is that? 33
40 What is a reasonable time? 33

5 Warranties, bonds and novation 35

41 What are ‘step-in rights’? 35
42 Can a warranty be effective before it is signed? 35
43 Have architects any choice whether they provide collateral warranties? 36
44 JCT contracts do not seem to mention performance bonds. What
are they? 37
45 Is an architect who fails to secure a performance bond negligent? 38
46 If the architect is novated to a contractor who subsequently goes
into liquidation, can the architect be re-novated to the client? 39
47 In the case of design and build, can the contractor claim from the
architect for design errors in work done before novation? 40

6 Contractor’s programme 42
48 When a contractor says that it owns the float, what does that mean? 42
49 If an architect approves a contractor’s programme, can the
contractor subsequently change the programme without the
architect’s knowledge, and, if so, can the architect demand an update? 44
viii Contents
50 Under SBC, the architect has approved the contractor’s programme,
which shows completion two months before the contract completion
date. Must the architect work towards this new date? 45
51 Can the architect insist that the contractor submit the programme
in electronic format? 46

7 Contract administration 48
52 Is the architect obliged to check the contractor’s setting out if
requested? 48
53 Does the contractor have a duty to draw attention to an error on
the architect’s drawing? 48
54 Under DB, must the employer’s agent approve the contractor’s drawings? 50
55 Is the architect obliged to provide as-built drawings? 50
56 What happens if the contractor cannot obtain materials? 51
57 What if the contractor argues that the standard of work should
take into account the tender price and a lower standard should be
expected if the price is low? 51
58 What powers does a project manager have in relation to a project? 52
59 Can certificates and formal AIs be issued if the contract is not signed? 53
60 If the architect finds that there is no person-in-charge on site, can
the project be halted until the person-in-charge is on site? 54
61 If the employer sacks the architect and appoints an unqualified
surveyor as contract administrator, is the contract still valid? 55
62 Under SBC, there is a clause in the bills of quantities
preliminaries which states that no certificates will be issued until
the contractor has supplied a performance bond. Work has been
going on site for six weeks and there is no performance bond, but
the contractor says that the architect must certify. Is that correct? 56
63 If there is a clause stating that the parties will work together in
a spirit of trust, can the employer demand to see all the relevant
books of the contractor? 57
64 Funding has been stopped and 3 certificates are unpaid. The
contractor has suspended obligations. Subsequently, vandalism
occurred on site – whose problem is that? 58
65 Is it impossible to say that a contractor is failing to proceed
regularly and diligently? 59

8 Architects 60
66 An architect’s terms of appointment often require ‘co-ordinating’, ‘liaising’
and ‘monitoring’. These seem like woolly terms; what do they imply? 60
67 Planning permission was obtained for a small building. The
building owner wants to press ahead with a larger building
without further reference to Planning. The architect knows that
 Contents ix
the Planning Department would refuse the large building. Should
the architect continue to do the drawings and administer the
contract on site? 61
68 If an architect is engaged to apply for planning permission by a
certain date, is the architect liable if that date is missed? 61
69 Are there any circumstances in which a contractor can
successfully claim against the architect? 62
70 If the contract requires an architect to ‘have due regard’ to a code
of practice, does that mean the architect must comply with it? 64
71 Can an architect be liable for advising the use of the wrong form
of contract? 65
72 Is an architect liable for failure to advise a client to use a better
material? 66
73 The job went over time. The employer and the contractor did
some kind of deal. Where does that leave the architect? 66
74 What is the purpose of a net contribution clause? 67
75 Is the client entitled to the architect’s drawings in electronic format? 68
76 Is an architect liable for the specification of a product which is defective? 69
77 An architect has been appointed for work on which another
architect has been engaged; is there a problem? 70
78 Can an architect use RIBA terms of engagement outside the UK? 71
79 Being asked to use reasonable endeavours sounds less onerous
than best endeavours; is that correct? 71
80 Architects are often called upon to specify the key staff who will
deal with a particular project. To what extent may the architect
change such staff? 72
81 What are the implications of an architect being asked to provide a
certificate of readiness for the preparation of bills of quantities? 73
82 Are there any dangers for the architect if the client wants full
drawings but intends to deal directly with a contractor to get the
project built? 73
83 If, at the end of a project, the client engages another architect
to investigate how the project has been run, must the original
architect and contractor co-operate? 74
84 Is the client entitled to all the files belonging to construction
professionals on completion of the project? 75
85 When can job files be destroyed? 75
86 What are the dangers of a construction professional giving a
certificate of satisfaction to the building society? 77

9 Fees 79
87 If the tender price has been reduced and the architect has been
paid for the reduction work, is the architect entitled to be paid for
doing the extra design in the first place? 79
x Contents
 Contents xi
106 Is the contractor liable for design produced by a nominated
sub-contractor? 95
107 If the architect’s design is faulty, but the contractor builds it
badly, who is liable? 96
108 Under IC does the contractor have any design responsibility for
trussed rafters if they are in the specification? 97
109 Does the architect have a duty to continue checking the design
after the building is complete? 97
110 Who owns copyright – client or architect? 98
111 If a designer has been paid for producing full drawings for a
development and the client sells the site, can the new owner use
the drawings to build on the site? 99
112 What does it mean to take ‘reasonable skill and care’, and how is
that different from an obligation to provide something that is ‘fit
for purpose’? 101
113 Why does a design and build contractor usually have a fitness for
purpose obligation, but not under DB? 102

11 Architect’s instructions 103

114 What counts as an instruction? 103
115 What can be done if a contractor refuses to carry out an
instruction and refuses to allow the employer to send another
contractor onto the site? 104
116 Can a contractor refuse to comply with an architect’s instruction
which requires the acceptance of the quotation of a sub-
contractor chosen by the architect? 105
117 Should AIs be signed by an individual or the firm? 106
118 If the employer gives instructions on site directly to the contractor,
must the architect then confirm those instructions in writing? 106
119 Can the employer tell the architect to instruct the contractor to
omit half the Works? 107
120 Does the architect have power to give instructions after practical
completion? 107
121 What is the position under a traditional contract if the contractor
acts on instructions given directly by the mechanical services
consultant? 108
122 Under SBC, roof tiles were varied at site meeting and by letter,
but the contractor ordered the original ones. Should the architect
have changed the drawings as well? 109
123 Can the architect issue an AI if the client says NO? 109
124 Does the wording of MW give the architect power to issue an
instruction to postpone the Works? 110
xii Contents
12 Inspection 111
125 What is the architect’s site inspection duty? 111
126 What is the position if the contractor has covered up work? 113
127 If the architect’s contract stipulates inspections every two
weeks, is the architect liable if defective work is done between
inspections and is not visible subsequently? 114
128 Is there a difference between inspecting and supervising? 114
129 Can the contractor argue that the architect saw what was being
done on site and must have agreed with it? 115
130 Is the architect liable for the clerk of works’ mistakes? 116
131 What is the position if the clerk of works approves defective work? 117
132 Can the clerk of works stop the Works? 117

13 Defects during progress 118

133 Under SBC, can the architect stipulate when the contractor
must rectify defective work or can the contractor simply leave it
all until just before practical completion? 118
134 The contractor incorrectly set out a school building, but it was
not discovered until the end of the project when floor tiles in the
corridor were being laid. What should be done? 119
135 Is the contractor responsible for rectifying defects which the
architect has noticed, but failed to report? 120
136 If a supplier persuades the employer to use a particular product in
the Works and it subsequently fails, has the employer any redress? 120
137 What can be done under SBC if a serious defect arises when the
Works are nearly finished if the contractor denies liability and
the employer is desperate to move in? 121
138 If the contractor is liable for a very serious defect, must it do
whatever the employer requires to correct it? 122
139 Contractor will not rectify defects until the final account is agreed 123

14 Defects after practical completion 124

140 The contractor says that it has no liability for defects appearing
after the end of the rectification period. Is that correct? 124
141 IC: In this project there are two rectification periods: 6 months
for building, 12 months for heating and electrical. Should there
be two final certificates? 125
142 Are latent defects all the defects discovered during the
rectification period? 125
143 The contractor denies liability for a serious defect notified during
the rectification period and submits an unsolicited report from
an expert which supports its position. Has the report any status
under the contract? 126
 Contents xiii
144 If there is a DB contract and the architect has been novated from
the employer to the contractor at tender stage, can the employer
ask the same architect to prepare a list of defects after practical
completion? 127
145 What if the employer refuses to allow the architect to carry out
the inspection at the end of the rectification period? 127
146 What is the position if the employer has taken possession of a
block of flats, some have been let and the tenants will not allow
defects inspection? 128
147 What if an architect forgets to issue a list of defects at the end of
the rectification period? 128
148 Is there a time limit within which a contractor must remedy all
defects notified at the end of the rectification period? 129
149 Must the contractor deal with defects at the convenience of the
employer? 130
150 Must the architect take notice of defects reported by the client’s
tenants if there are no warranties between architect and tenant? 130
151 Due to a construction defect in a swimming pool, hundreds of
gallons of water have been lost. Can the employer recover the
cost from the builder? 130
152 The contractor has re-laid a defective floor at the end of the
rectification period. Can the cost of re-laying the carpet be
deducted from the final account? 131
153 Can the rectification period be extended to deal with defects
discovered and rectified at the end of the period? 132
154 Is the employer entitled to hold retention against future defects
after the end of the rectification period? 132

15 Valuation and payment 134

155 Under MW, can the contractor insist on agreement on price
before carrying out variations? 134
156 Is the contractor obliged to stick to a mistaken low rate in the
bills of quantities if the amount of work is substantially increased? 134
157 Under SBC With Quantities, the contractor put in a very high
rate for an item of which there were only 3 no. in the bills of
quantities. It was subsequently found necessary to instruct over
200 of these items. Is the quantity surveyor entitled to reduce the
unit rate? 135
158 Tenders were invited on the basis of a bills of quantities. After
tendering, the three lowest tenderers were asked to price a bill of
reductions. The overall lowest tenderer was appointed. During
the progress of the Works, the quantity surveyor wants to value
xiv Contents
using prices from either the bill of reductions or from the original
bills of quantities, whichever is lowest 135
159 Under MW, can an architect who discovers that the contractor
is making 300 per cent profit on some goods it is contracted to
supply do anything about it? 136
160 What is the significance of retention being in trust? 136
161 Is there a problem for the employer who assists the contractor by
making an advance payment? 137
162 If work is being done on a daywork basis, can the time claimed
be reduced if the quantity surveyor thinks that the contractor has
taken too long? 138
163 The architect and the quantity surveyor cannot keep up with the
volume of daywork sheets. Is it OK to sign without checking? 138
164 Is the contractor entitled to loss of profit if work is omitted? 139
165 Is the employer entitled to delay payment if bank funding is delayed? 140
166 Is it true that a change in the scope of work can result in a
re-rating of the entire bills of quantities? 140
167 Can the quantity surveyor be liable for measuring work which is
defective? 141
168 German light fittings were specified. Can the contractor claim
extra money because the exchange rate has altered to its detriment? 142
169 Under what circumstances is the contractor entitled to the costs
of acceleration? 143
170 What is the effect of agreeing payment ‘in full and final
settlement’? 145
171 If the employer and the contractor agree a financial settlement,
can the employer set-off money because of a subsequent defect? 146
172 Under DB, the Employer’s Requirements asked for special
acoustic windows which the Contractor’s Proposals did not
include. The contract is signed. Can the employer insist on the
special windows at no extra cost? 147

16 Certificates 149
173 What does it mean to ‘issue’ a certificate? 149
174 Under SBC, is the contractor entitled to suspend work under the
Construction Act if the architect has under-certified? 149
175 Can an architect issue a negative certificate? 151
176 Can an architect who has under-certified withdraw the certificate
and issue a revised certificate or simply issue another certificate
for the additional money? 152
177 What should the architect do if the employer says that certain
work is not to his or her satisfaction? 152
 Contents xv
178 What is the payment position if the architect refuses or fails to
check and sign daywork sheets? 153
179 Is it true that architects may lose their right to certify under JCT
2016 contracts? 153
180 If the contractor is falling behind programme, is the architect
justified in reducing the amount of preliminaries costs in interim
certificates? 155
181 Must the architect certify the amount in the quantity surveyor’s
valuation? 156
182 If the architect has made some factual errors on an interim
certificate, is the employer entitled to refuse payment? 157
183 At the contractor’s request, the architect has started issuing
certificates every two weeks. Is there anything wrong with that? 157
184 What is the status of a certificate issued by the quantity surveyor
or project manager? 158
185 Under IC, if the time for issuing a Pay Less Notice has expired
but some serious defects come to light, can the employer set-off
the value against the amount certified? 158
186 Under SBC, when is a certificate issued? 159
187 Under DB, should an architect working for a contractor issue
certificates? 160
188 Under SBC, if the project has taken a long time and has not yet
reached practical completion, is the architect allowed to release
25 per cent of the retention? 160
189 If the employer and the contractor agree the final account,
should the architect issue a final certificate in that amount? 161
190 What can a contractor do if the architect fails to certify? 161
191 Must the final account be agreed with the contractor before the
final certificate is issued? 162
192 If the contractor fails to provide the final account documents
within the period specified in the contract after practical
completion, what should the architect do? 163
193 If the contractor has signed the final account as agreed, is the
architect entitled to reduce it thereafter? 164
194 Is the final certificate ever conclusive about workmanship and
materials? 164
195 Under SBC and IC is there a problem if the architect delays
issuing the final certificate? 166
196 Is it permissible to issue a final certificate on an interim
certificate form? 167
197 Under SBC, should the architect issue a final certificate if
further defects have appeared in the Works? 167
xvi Contents
198 Is it possible to challenge a final certificate a year after it has
been issued? 168

17 Sub-contractors and suppliers 170

199 Must the architect approve the sub-contractor’s ‘shop drawings’? 170
200 Under MW, if the contractor is in financial trouble, can the
employer pay the sub-contractors directly? 171
201 If the architect instructs the contractor to accept a specific
sub-contractor’s quotation, is the employer liable if the
contractor fails to pay? 172
202 If the specified supplier cannot deliver on time, must the employer
choose another supplier and stand any difference in cost? 172
203 If the contractor engages a sub-contractor without the architect’s
consent, can the contractor avoid having to pay the sub-
contractor for work done? 173
204 The contractor has gone into liquidation, and the heating
sub-contractor says it is going to remove all the loose piping
stored on site and take away the radiators fixed in the building.
Can it do that? 174
205 Can there be liquidated damages in a sub-contract? 175
206 Is the sub-contractor obliged to work in accordance with the
actual progress of the main contractor’s Works? 176

18 Extensions of time/adjustment of the completion date 178

207 Can the architect ignore delays if the contractor has failed to give
proper notice? 178
208 What is the position if the contractor is delayed by delays in
obtaining specified goods from overseas suppliers? 179
209 Is a note in the minutes of a site meeting sufficient notice of
delay from the contractor? 180
210 Is time of the essence in building contracts? 180
211 What, in practice, are ‘concurrent delays’? 181
212 How does time become ‘at large’? 183
213 Under SBC, if the architect gives an instruction after the date
the contractor should have finished, is the contractor entitled to
an extension of time, and, if so, how long? 183
214 Is the contractor’s Christmas holiday period included in
extensions of time? 184
215 Under SBC, if the architect does not receive all the delay
information required until a week before the date for
completion, must the extension of time still be given before the
completion date? 184
216 Is there an easy way to decide an extension of time? 185
 Contents xvii
217 The contractor has a four weeks’ extension of time. Can the
employer charge for supplying electricity during this period? 187
218 Can the architect issue an extension of time even if the
contractor has not given any delay notices? 187
219 Under SBC: the project manager agreed the length of an
extension of time with the contractor. Should the architect now
certify it? 187
220 If there is a clause in the contract which says that the employer
will remain in residence during alterations to a house, but
the employer in fact moves out, should the improved working
conditions count as a ‘discount’ against any extension of time
which might be due? 188
221 Can the employer legally prevent the architect from giving an
extension of time? 188
222 Must the architect give the contractor detailed reasons to explain
the extension of time? 189
223 Under SBC, is it permissible for the architect to give a further
extension of time if documents from the contractor
have not been received until after the end of the 12-week
review period? 190
224 Is it permissible for the architect to substantially backdate the
certificate of practical completion instead of giving an extension
of time? 191
225 The employer terminated the contractor’s employment in the
ninth month of a ten-month SBC contract. The contractor is
now claiming 16 weeks’ extension of time 192
226 Can the contractor be entitled to an extension of time if it
finishes before the date for completion? 192
227 Must everyone follow the Society of Construction Law Delay
and Disruption Protocol? 193

19 Liquidated damages 195

228 Under SBC and IC, is there a time limit for the issue of the
certificate of non-completion? 195
229 The employer terminated in the 11th month of a 12-month
contract. Can the employer deduct liquidated damages from the
original contractor until practical completion is achieved by others? 195
230 Can an employer suffering no actual loss still deduct liquidated
damages? 196
231 If an employer has entered into two separate contracts with the
same contractor, is it entitled to set off liquidated damages due
on one contract against payment due to the contractor on the
other contract? 197
xviii Contents
232 Why do contractors sometimes say that the employer cannot
deduct penalties? 197
233 Is it true that where there is a liquidated damages clause, by
implication there must be a bonus clause in the same amount for
early completion? 198
234 Under SBC, if an employer wants to be able to recover actual
damages for late completion, is it sufficient that the liquidated
damages entry in the contract particulars has been filled in as
NA (not applicable)? 199
235 Does it make sense to include in the contract the way in which
liquidated damages have been calculated? 199
236 Can the employer still claim liquidated damages if occupation of
the Works has been taken? 199
237 Can actual damages be claimed instead of liquidated damages if
the overrun is very long? 200
238 What does a contractor mean who says that ‘damages are at large’? 201
239 If the employer has to cancel a £13,000 holiday because a new
house is not completed in week 17 of a 14-week contract, can the
employer claim the holiday cost? Liquidated damages are £250/week 201
240 The contract shows the completion date of a school, but
the contractor has submitted a programme showing a later
completion date. From which date do liquidated damages run? 202
241 Under SBC, if practical completion is certified with a list of defects
attached, can the employer deduct liquidated damages until
termination (which occurred later due to the contractor’s insolvency)? 203
242 If the employer tells the contractor that liquidated damages will
not be deducted, can that decision be reversed? 204

20 Loss and/or expense 206

243 It is three months after practical completion and the contractor
has just produced a claim in four lever arch files. What should be
done about it? 206
244 Must the architect or quantity surveyor consider further loss
and/or expense information provided by the contractor after the
quantity surveyor has prepared the final account? 207
245 What exactly is a global claim? 208
246 How can a contractor claim for disruption? 210
247 Why are overheads and profit difficult to claim? 210
248 Can a contractor claim for loss of opportunity? 212
249 Why do contractors use formulae for calculating claims? 213
250 What are ‘interest and finance charges’ which the contractor is
trying to claim? 214
 Contents xix
251 Can a contractor recover the professional fees of a consultant
engaged to prepare a claim? 215
252 Does the contractor have a duty to mitigate its loss? 215
253 Is it permissible to claim increased costs by reference to national
indices? 216
254 The contractor is demanding to be paid ‘prelims’ on the
extension of time. How is that calculated? 217
255 Under MW, is it true that a contractor cannot make a loss and/
or expense claim? 218
256 To what extent is a contractor obliged to provide information
requested by the architect or quantity surveyor in connection
with loss and/or expense? 218

21 Sectional completion 220

257 The contract is SBC, which includes provision for sections. The
employer wants to rearrange the sections. Can that be done with
an architect’s instruction? 220
258 Can sectional completion be achieved by inserting the phasing
dates in the bills of quantities Preliminaries section? 220
259 Under SBC in sections, the dates for possession and completion
have been inserted for each section. Section 2 cannot start until
section 1 is finished. Is it true that possession of section 2 must
be given on the due date even if it is the contractor’s own fault
that section 1 is not finished? 221
260 If the architect gives an extension of time for section 1 and
all the sections have dates for possession which depend upon
practical completion of the earlier section, is the architect obliged
to give a similar extension of time for each section? 223

22 Practical completion and partial possession 225

261 If the architect has issued a certificate of practical completion
with 150 defective items listed and the contractor is not
remedying them within a reasonable time, what can be
done about it? 225
262 Is the contractor entitled to a certificate of practical completion
after termination? 226
263 Is there such a thing as ‘beneficial occupation’, and is the
architect obliged to certify practical completion if the employer
takes possession of the Works? 226
264 Can the employer take partial possession of the whole
building so that the architect need not certify practical
completion? 227
xx Contents
265 Is the architect entitled to issue the practical completion
certificate and an extension of time on the instruction of the
client’s solicitor? 227
266 If the employer has agreed that the contractor can have another
four weeks’ extension of time, should the architect backdate the
certificate of practical completion? 228
267 Can partial possession be used for the whole of the interior if the
employer is anxious to move in? 228

23 Termination 230
268 The contractor is running over time. The architect has over-certified.
Are there any problems if the employer wishes to terminate? 230
269 Under SBC, termination took place due to the contractor’s
insolvency. Can the liquidator insist that full payment of any
balance plus retention is immediately payable? 231
270 The contractor has gone into liquidation and another contractor
is needed to finish the project. The MD of the original firm has
now formed a new company and is asking to be considered for
the completion work. Is that a problem? 232
271 After termination must the employer invite three tenders to
complete the Works? 233
272 If the contractor discovers that it has under-priced a project and
cannot afford to carry on, must the architect try to negotiate an
amicable termination and settlement? 233
273 How can an employer get rid of a contractor who seems
incapable of producing good-quality work? 234
274 In what circumstances can an employer terminate on the
grounds of failure to proceed regularly and diligently even if the
contract does not require the contractor to do so? 235
275 Under SBC, is it true that if the employer fails to pay, the
contractor can simply walk off site? 236
276 Is there any time limit for the employer to terminate after the
architect has issued a default notice? 237
277 The employer has terminated, but the contractor refuses to leave
site, saying that it is entitled to stay until paid in full 238
278 What does ‘repudiation’ of a contract mean? 239
279 Can notice of termination be sent by fax or e-mail? 240
280 Is a contractor’s termination under a JCT contract valid if
addressed to the architect but copied to the employer? 241

24 Disputes 242
281 What is a dispute or difference under the contract? 242
282 Is it acceptable to suggest to the nominating body whom to
nominate as adjudicator? 243
 Contents xxi
283 If the contractor does not like the adjudicator who has been
nominated, can it abort the process and seek the nomination of a
different adjudicator? 244
284 An adjudicator has been appointed whom the employer has not
agreed. What can the employer do about it? 244
285 Is it permissible to refer several disputes to adjudication at the
same time? 245
286 How important are the various time periods in adjudication? 246
287 What exactly is a failure to observe the rules of natural justice? 247
288 Is the architect obliged to respond to the adjudication referral on
behalf of the employer if so requested? 248
289 Is a person acting as an expert witness immune from actions for
negligence? 249
290 Can a mediator be called as a witness about the subject of the
mediation? 250
291 Can an adjudicator use his or her own experience to decide the
dispute? 251
292 Can an adjudicator make a decision about an interim payment
if it is the final account value which is being referred? 252
293 Is the adjudicator entitled to award interest? 252
294 Other than going to arbitration or litigation, are the parties stuck
with an adjudication decision which contains obvious errors in
calculations? 252
295 Can the losing party set-off monies owing against the
adjudicator’s order requiring payment? 253
296 If in valuing the Works, it is decided that there has been an
overpayment, can the adjudicator order repayment? 253
297 If the adjudicator is late with the decision, is it still valid? 255
298 An adjudicator’s decision has just been received, and it is
clear that the points made have been misunderstood and the
adjudicator has got the facts wrong. Can enforcement be resisted? 255
299 The court has just ruled that the adjudicator’s decision is a
nullity. Can the losing party refuse to pay the adjudicator’s fees? 256
300 If the contractor wants to take matters beyond adjudication,
what are the pros and cons of arbitration and litigation? 257

Table of cases 261

Index 273
Preface to the Fourth Edition

The Royal Institute of British Architects’ Information Line was set up on 1 May
1995 so that members could ring in with a problem and be directed to a specialist
adviser who would give 10 or 15 minutes of complimentary, liability-free com-
ments to point the architect in the right direction. I have been a specialist adviser
to the RIBA since the inception of the service and subsequently to the Royal So-
ciety of Ulster Architects, answering thousands of questions posed by architects.
In my (now long) career as an architect and a consultant, I have also dealt with
a multitude of problems from contractors, sub-contractors and building owners.
People continue to tell me that this book is helpful. Obviously, I am pleased
about that. In this edition there are 300 questions and answers. They are com-
posed of all the questions in the previous three editions together with some of
the many additional questions received since the last edition. All the questions
have been updated so that they and the answers relate to the contract situation at
the time of writing this edition. Many of the answers have been edited to remove
material not relevant to the question, and all the text has been reviewed and ad-
justed where necessary. Significant new cases have been added and some old cases
removed. Some of the questions were concerned with earlier forms of contract,
but they have all been updated as necessary to refer to the latest 2016 series of JCT
contracts, i.e., SBC (the ‘with quantities version’ is assumed), IC, MW and DB.
The ‘with contractor’s design’ (ICD and MWD) variants are not expressly men-
tioned unless referring to some differences from the IC and MW contracts. Some
reference has been made to the 2018 RIBA Building and Professional Services
Contracts. Questions have also been included on related topics such as architects’
fees, design and disputes.
This book includes some of the more common questions, together with a few
unusual ones and several that address misconceptions. I must emphasise that
these are real questions. They are not questions that I have invented by looking
at what the courts have decided and then matching a question to the decision.
In each case, I have had to see whether there is anything in the decisions of the
courts, in legislation or in the contracts themselves which provides an answer.
Where there is no ready answer, I have offered a view. I have tried to keep each
answer reasonably short while endeavouring to make the answer to each question
self-contained. This has resulted in occasional instances where answers overlap
 Preface to the Fourth Edition xxiii
slightly when dealing with similar subject matter. For the sake of simplicity, it has
been assumed that the contract administrator is an architect. However, very often
the role of contract administrator is taken by members of other disciplines, and in
such instances the reference to an architect should be taken to be a reference to a
member of the particular discipline.
In writing this book, legal language has been avoided so far as possible, but
reference has been made to legal cases, and the relevant citations are given so that
anyone interested may do some further reading. All these references have been
updated. A full table of cases is included at the end of the book. The contractor
and sub-contractors are assumed to be corporate bodies and have therefore been
referred to as ‘it’ throughout.
This book should be useful to architects, project managers, quantity surveyors,
contractors, students and those building owners who would like to understand
more about the workings of building contracts.
Finally, I wish to thank my friend Michael Cowlin LLB DIPArb DipOSH
FCIArb Barrister (non-practising) for providing some helpful insights.

David Chappell
Wakefield
June 2020
Abbreviations used in the text

AI Architect’s Instruction
CBC RIBA Concise Building Contract 2018
CIArb Chartered Institute of Arbitrators
DB JCT Design and Build Contract 2016
FIDIC Federation Internationale des Ingenieurs-Conseils
GC/Work/1The General Conditions of Government Contracts for Building
and Civil Engineering Works
GMP Guaranteed Maximum Price
IC JCT Intermediate Building Contract 2016
ICD JCT Intermediate Building Contract with Contractor’s Design
2016
ICE Institution of Civil Engineers
IFC 84 JCT Intermediate Form of Contract 1984
JCT Joint Contracts Tribunal
JCT 63 JCT Standard Form of Building Contract 1963 Edition
JCT 80 JCT Standard Form of Building Contract 1980 Edition
JCT 98 JCT Standard Form of Building Contract 1998 Edition
MF/1 Standard Model Form of General Conditions of Contract for
the Design, Supply and Installation of Electric, Electronic or
Mechanical Plant
MW JCT Minor Works Building Contract 2016
MWD JCT Minor Works Building Contract with Contractor’s Design
2016
QS Quantity Surveyor
RIBA Royal Institute of British Architects
RIBACPSC RIBA Concise Professional Services Contract 2018
RIBADBC RIBA Domestic Building Contact 2018
RIBADPSC RIBA Domestic Professional Services Contract 2018
RIBAPSCs RIBA Professional Services Contracts 2018 (Architectural
Services)
RIBASPSC RIBA Standard Professional Services Contract 2018
RICS Royal Institution of Chartered Surveyors
SBC JCT Standard Building Contract 2016
1 Tendering

1 Does the architect have a duty of care to the contractor

when issuing tendering information?
The architect should be responsible for all of the information which goes out
to contractors at tender stage. Contractors proceed on the basis that the infor-
mation supplied is correct. A contractor will sometimes query items and the
architect will issue clarifications. If the clarification is seriously wrong and it
leads the contractor to believe that the work required is substantially less than
turns out to be the case, will the contractor be able to claim from the architect
its additional costs?
Usually an architect owes no duty of care to avoid causing economic loss to a
tendering contractor when supplying information for tendering purposes. In order
for there to be such a duty of care, it would have to be shown that there was a
giving of advice in the form of a negligent misstatement or misrepresentation that
the architect knew would be relied upon by the contractor. Such reliance would
have to be a direct cause of the loss, and the loss must have been foreseeable as
a consequence of the statement. Even then, if the architect includes a disclaimer
to the effect that he or she accepts no liability for any document except for the
purpose for which it was commissioned and that no liability is accepted to any
person except the person who commissioned the document, it will be a pointer to
there being no duty of care.1

2 Can the lowest tenderer legally do anything if its tender is

not accepted?
Most invitations to tender contain a proviso that the employer does not guar-
antee to accept the lowest or any tender. To some extent this allows the em-
ployer considerable freedom to award the contract as desired, but employers
should take care that they do not leave themselves open to actions for breach
of contract.

1 Galliford Try Ltd v Mott MacDonald Ltd and Rowen Structures Ltd (2008) 120 Con LR 1.
2 Tendering
In Blackpool & Fylde Aero Club v Blackpool Borough Council,2 the Court of
Appeal set out the position when tenders are invited: the contractor, by submit-
ting a tender, enters into an agreement with the employer on the basis that the
employer, in return for the submission, will deal with the tender in accordance
with the procedure set out in the invitation. The contractor is entitled to expect
that each properly submitted tender will receive proper consideration. An em-
ployer who does not properly consider each tender will be in breach of contract.
It is usual that an employer wishes to see all submitted tenders. Whatever the
architect or quantity surveyor might say, the employer may insist on seeing even
a tender that has been submitted after the closing date and time specified in the
invitation. On discovering, perhaps, that the late tender is lower than the others,
the employer may wish to accept it.
If this tender is accepted, the employer will be in breach of the tendering agree-
ment which stated that only tenders submitted before the closing date would be
considered. A tendering contractor who learned that the employer acted in breach
of contract would be entitled to claim damages which would certainly embrace all
the contractor’s costs in preparing the tender. If all the tenderers discovered the
breach, the total damages could be considerable.
There may be other stipulations in the invitation, for example, about the
course of action to be taken if an error is found in the pricing document. Failure
to observe these stipulations will also make the employer liable to any tenderers
disadvantaged as a result. Quite apart from legal liability, an employer who in-
dulges in dodgy practices will find that no contractor is willing to submit a tender
on future projects. In one case,3 an employer received tenders which were invited
on the basis that the procedure would be in accordance with the principles of
the Code of Procedure for Single Stage Selective Tendering 1996. In an effort to
reduce the price, the employer asked the lowest tenderers to reduce their tenders;
as a result, a tenderer other than the original lowest tenderer became the lowest
and that tender was accepted. The original lowest tenderer took legal action and
it was held that the original lowest tenderer was entitled to recover not only its
costs of tendering but also the loss of the profit it could have expected if it had
carried out the project.
If the employer strictly observes the rules set out in the invitation, neither the
lowest nor any other tenderer has grounds for legal action if a tender other than
the lowest, or even if no tender at all, is accepted.
Architects and quantity surveyors who find themselves having to deal with
clients who show complete disregard for the tender process must seriously con-
sider whether they can continue to act for them. Construction professionals who
become associated with doubtful tendering practices will find it difficult to get
contractors to tender in the future.

2 [1990] 3 All ER 25.

3 J & A Developments Ltd v Edina Manufacturing Ltd, Armoura Ltd & Others [2006] NIQB 85.
 Tendering 3
3 The contractor’s tender states that it is open for acceptance
for six weeks from the date of tender, but the contractor
withdraws it after three weeks citing a suddenly increased
workload. Is the contractor liable to the employer for the
additional costs of a replacement contractor?
When a contractor submits a tender, it is an offer to carry out the required work
for a certain sum. The employer is free to accept the offer, reject it or attempt to
negotiate. Until the offer is accepted, there is no contract. The law is that an of-
fer can be withdrawn at any time before it is accepted, and there are some rather
awkward rules regarding acceptance by post. Therefore, in normal circumstances
the contractor can withdraw the tender before it is accepted. The contractor has
no liability for any costs suffered by the employer.
Tenders often state that ‘in consideration of a payment of £1 (receipt of which
is hereby acknowledged) the contractor agrees to keep the tender open for ac-
ceptance for a period of x weeks from the date hereof’. This effectively creates
a little contract between employer and contractor whereby the agreement is the
employer’s payment of £1 and the contractor keeping the tender open. A sum
of £1 may not seem much, but all that is necessary is that something of value
is given. In this case, a contractor who withdraws the tender after three weeks
would be in breach of the little contract, and the employer would be able to bring
an action for damages which would likely be the additional costs incurred by the
employer in engaging another contractor.
Many employers are not aware that the contractor’s offer is also ended if the
employer rejects it. An employer cannot reject the offer and then, after undergo-
ing a change of mind, decide to accept it. That ‘acceptance’ is actually a new offer
by the employer to form a contract on the basis of the contractor’s original offer.
No contract is formed until the employer’s new offer is unequivocally accepted by
the contractor.

4 Is a contractor bound by its price even if there

is an error in tendering?
The extent to which a contractor may be bound by its error will depend on what
the tenderer and employer knew. Quantity surveyors checking tenders and priced
bills look out for under-pricing, and draw any serious examples to the attention
of the tenderer. The basic principle is that once a tender has been accepted the
tenderer is bound by its price. However, that principle can be upset.
A good example is demonstrated in the case of Traditional Structures Ltd v H W
Construction Ltd.4 Traditional Structures (TS) was a sub-contractor requested to
submit a price to the contractor, H W Construction (HWC), for the supply and
installation of structural steel and roof cladding. Unfortunately, the last line of

4 [2010] EWHC 1530 (TCC).

4 Tendering
TS’s tender was missing. Instead of quoting prices of £37,573.43 and £32,365.83,
the second figure was missing. The office copy TS had on file contained the last
line. Therefore, TS was unaware of the omission. HWC asked TS how long the
quotation of £37,573.43 for steelwork was to remain open.
In due course, HWC’s tender was accepted, and it notified TS by accepting
its tender for steelwork and roof cladding but did not state any price. During the
course of the work, it emerged that HWC was looking at £37,573.43 as the price
for steelwork and roof cladding, while TS maintained that it was entitled to the
full £69,939.26 plus the cost of the variations. HWC’s position was that TS was
bound by its original tender price.
Generally, when the parties have made their contract, they must live with it.
The court will only rectify a contract in certain instances. In this case, it was
for TS to prove that it believed the contract included the missing price and that
HWC concluded the contract with the missing price, knowing that TS believed it
to be included. The court ruled that there was a unilateral mistake in the contract
which allowed the court to rectify it. The judge said that HWC wilfully and reck-
lessly failed to enquire of TS whether the price of £37,573.43 plus VAT related to
both the structural steelwork and the cladding elements of the work for which TS
was tendering, which enquiry an honest and reasonable man would have made
in the circumstances of this case. He went on to say that HWC’s behaviour was
‘unconscionable’ in that it went beyond the boundaries of fair dealing.
The same principles apply when an employer invites tenders from contractors.
An employer who tries to gain an advantage by accepting a tender which he or
she knows is defective is acting unlawfully, and the courts will act to rectify such
contracts to reflect the true situation.

5 Does the architect have any particular duty to draw the

attention of the contractor to onerous terms or amendments in
the contract at the time of tender?
If there are onerous or unusual terms or amendments in the contract, the time to
bring them to the attention of the contractor is at tender stage so that the terms
or amendments in question can be considered in the contractor’s tender. If the
architect waits until after the contract is executed, it will be too late.
In general, the contractor will be bound by all the terms of the contract that
were notified by the employer before the contract was executed and it is usually
sufficient if the contractor is notified in the bills of quantities or specification. It is
immaterial whether or not the contractor actually reads the terms, so long as the
existence of the terms is known.
The point about using standard forms of contract or setting out bills of quanti-
ties in accordance with the New Rules of Measurement is that contractors know
what to expect. If the National Building Specification is used, even the wording
of the various paragraphs can be reasonably anticipated.
If it is thought desirable to introduce changes to the standard contracts by
amending clauses or even introducing new clauses, it will usually be good notice
Another random document with
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The Project Gutenberg eBook of Hand-book of
punctuation
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Title: Hand-book of punctuation

with instructions for capitalization, letter-writing, and
proof-reading

Author: William Johnson Cocker

Release date: December 22, 2023 [eBook #72479]

Language: English

Original publication: New York: A. S. Barnes & Co, 1878

Credits: Charlene Taylor and the Online Distributed

Proofreading Team at https://www.pgdp.net (This file
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*** START OF THE PROJECT GUTENBERG EBOOK HAND-BOOK

OF PUNCTUATION ***
 HAND-BOOK
OF
PUNCTUATION,
WITH INSTRUCTIONS FOR

CAPITALIZATION, LETTER-WRITING,
AND
PROOF-READING,

BY
W. J. COCKER, A. M.

A. S. Barnes & Co.,

New York, Chicago, and New Orleans.
1878.

Copyright, 1878, by W. J. Cocker.

 PREFACE.
As the pronunciation of words is determined by the usage of the
best speakers, so, in a great measure, the punctuation of sentences
is based on the usage of the best writers. Recognizing this fact, the
author has aimed,—
1. To state such general rules as are recognized by most writers of
good English.
2. To illustrate these rules by examples taken from many of our
best English classics.
3. To give some of the differences in usage that exist even among
the best of writers.
It is frequently asserted that even good writers differ so much in
their use of punctuation marks that it is impossible to lay down any
general rules, and that it is better for each one to consult his own
taste and judgment. With equal reason it might be said that
inasmuch as good speakers, and even lexicographers, differ in the
pronunciation of words, therefore each speaker should make his own
taste and judgment the standard for correct pronunciation. A writer’s
mode of expressing his thoughts will determine the character and
number of the punctuation marks that he uses, and it is chiefly owing
to this that even good writers differ somewhat in punctuating what
they have written. There are some rules that are invariable under all
circumstances; the use of others depends on the mental
characteristics of the writer; and there are still other rules, the
application of which is determined by the writer’s taste alone.
By gestures, tones of voice, oratorical pauses, emphasis, and in
various ways, a speaker can make his meaning clear to his listeners;
and so a writer should certainly use all the aids which punctuation,
capitals, and italics afford, in presenting clearly what he has written
for the perusal of others. Business men, however, seem to think that
they are not amenable to the rules that govern good writers. They
affirm that they have no time to punctuate their letters, and yet they
subject others to the necessity of expending time and patience in
trying to make out their meaning. Serious misunderstandings have
arisen between business men, in consequence of the omission or
incorrect use of punctuation marks, and expensive lawsuits have
originated in the careless punctuation of legal instruments.
Very little attention is paid in our public schools to punctuation, and
the rules usually given in English Composition are either disregarded
or not properly understood. This may, perhaps, be accounted for by
the fact that the rules are wanting in clearness, and are not
sufficiently illustrated by examples. The aim of this volume is to
remedy, in some measure, these evils, and to secure more attention
to what ought to be a prominent part of school instruction. The evils
of bad punctuation are really more serious than the evils of bad
spelling, and no student can be said to have learned to read well,
much less to write well, who has not studied punctuation intelligently.
We would suggest that this hand-book be used at Rhetorical
Exercises, and that when essays, orations, criticisms, &c., are
handed to the teacher for correction, he should use a red or a blue
pencil, so that corrections may be the more readily recognized.
Besides the corrections in grammar, spelling, &c., he should be
careful to supply punctuation marks when needed, cross out
needless ones, and, of course, make such other corrections as may
be necessary. When the productions are returned to the pupils, the
teacher should first point out the necessity of using certain marks, in
order to define and bring out the meaning, and to show the relation
between the different members of a sentence. Having thus shown
the need of punctuation marks, then reference should be made to
some of the simpler rules, to impress this need on the mind. Great
care should be taken not to perplex the mind with too many rules
before the necessity is created for their use. The great difficulty in
the study of punctuation has been that many rules are committed to
memory before the need of their use has arisen, so that the mind is
perplexed and bewildered instead of enlightened. The rule, it must
be remembered, does not create the necessity; the necessity
creates the rule. Then, again, we think a great mistake is made by
having the beginner punctuate what some one else has written. The
better plan is for the pupil, at the very outset, to punctuate what he
himself has composed, and in his effort to bring out his own meaning
clearly, he will, with the aid of a few rules, almost intuitively fall into
the habit of punctuating correctly.
The following suggestions may be of service:—
1. Do not give a pupil a rule to learn, unless it is clearly founded
upon examples taken from what he himself has written.
2. Take, at first, the simplest, most frequently used, and most
readily understood rules.
3. Advance slowly, remembering that a few simple principles
clearly understood, are of much more practical benefit than a
number of misty rules hastily committed to memory.
In the preparation of this hand-book, the author is under
obligations to various authorities, but he is more especially indebted
to Wilson’s “Treatise on Punctuation.”
W. J. COCKER.
Adrian, Mich., Dec. 26, 1877.
 Table of Contents.
I. Punctuation pp. 1-53
II. Capitals ” 54-70
III. Letter-Forms ” 71-100
IV. Proof-Reading ” 101-114
 Punctuation.
Introduction.
The principal punctuation marks are,—

1. The Comma ,
2. The Semicolon ;
3. The Colon :
4. The Period .

The comma indicates a somewhat close relationship between the

parts of a sentence; the semicolon, a more distant relationship; the
colon indicates that the parts are almost independent of each other;
the period marks the close of a sentence, and indicates that a
thought is complete.
 In simple sentences, when the words are closely united together,
and the relationship of the words to each other is readily perceived,
there is usually no need of any punctuation marks, except a period at
the close. It should always be borne in mind that punctuation marks
are used primarily to assist in bringing out the meaning of the writer,
and not to embellish a written or a printed page. In sentences made
up of parts that are closely related to each other, but, at the same
time, distinct in character, commas should be used. They are way-
marks for the accommodation of the reader. A production
unpunctuated presents as dreary a prospect to the reader, as the
level plain of Chaldæa presents to the perplexed traveler who has
lost himself among the sandy mounds on the banks of the
Euphrates, and has nothing by which to direct his course.
When the different parts of a sentence are somewhat
disconnected, and not closely related to each other, a semicolon or
colon should be used. Sentences are sometimes very long and
complicated. It is then necessary to separate the main divisions by
semicolons, and the smaller by commas. Sometimes the smaller
parts of a sentence are separated by commas and semicolons, and
the main divisions by colons.
The other marks in use are,—

1. The Interrogation Point ?

2. The Exclamation Point !
3. The Dash —
4. Marks of Parenthesis ()
5. Brackets []
6. Quotation Marks “‘’”
7. The Apostrophe ’
8. The Hyphen -
9. Miscellaneous marks.

THE COMMA.
INTRODUCTORY REMARKS.
 In order to properly understand some of the rules that are given in
the following pages, it is absolutely necessary to have a clear
understanding of the difference between a sentence and a clause. A
sentence is a combination of words expressing a complete thought,
and usually followed by a period; a clause is a distinct part of a
sentence. Some sentences are simple in form, and have but one
subject and one finite verb; as, “Language is part of a man’s
character.”—Coleridge. Other sentences are made up of clauses,
each clause having a subject and a verb; in other words, several
clauses are sometimes joined together to form one sentence; as,
“New forms of beauty start at once into existence, and all the burial
places of the memory give up their dead.”—Macaulay. It will be
easily seen that clauses will be more readily recognized with the eye,
and more easily comprehended, if they are separated from each
other by punctuation marks. This will be especially so, if the clauses
are long.
In preparing this hand-book, the aim has been to avoid, as much
as possible, the use of technical terms. Whenever such terms are
used, explanations will usually be found under the head of Remarks.

Rule I. Independent Clauses.—Independent clauses should be

separated from each other by commas.

examples.
“Savage was discomposed by the intrusion or omission of a
comma, and he would lament an error of a single letter as a great
calamity.”—Dr. Johnson.

“Man wants but little here below,

Nor wants that little long.”—Goldsmith.

“Take short views, hope for the best, and trust in God.”—Sydney
Smith.

remarks.
 1. An independent clause is one that is not dependent on any other clause for
the completion of its meaning; as, Take short views | hope for the best | and trust in
God. Independent clauses are frequently connected by and, or, nor, but.
2. When the clauses are short and closely united, the comma may be omitted;
as, “Death had lost its terrors and pleasure its charms.”
3. When the clauses are long and divided into smaller portions by commas, they
should be separated from each other by semicolons. See Rule I. p. 23.

Rule II. Dependent Clauses.—Dependent clauses should be

separated from each other by commas.

examples.
“If a man does not make new acquaintances as he advances
through life, he will soon find himself left alone. A man, Sir, should
keep his friendship in constant repair.”—Dr. Johnson.
“When Dr. Franklin wished to gain his enemy, he asked him to do
him a favor.”
“Clap an extinguisher upon your irony, if you are unhappily blest
with a vein of it.”—Lamb.
“Although we seldom followed advice, we were all ready enough to
ask it.”—Goldsmith.

remarks.
1. A clause is said to be dependent, when it depends on some other clause to
complete its meaning; as, When Dr. Johnson wished to gain his enemy | he asked
him to do him a favor. The first clause of this sentence would not be complete in
meaning without the second. Dependent clauses usually commence with if, when,
since, because, until, &c.
2. When clauses are closely connected, the comma may be omitted; as, Mozart
published some music when seven years of age.

Rule III. Relative Clauses.—1. A relative clause should be

separated from the rest of the sentence by a comma.
 2. But the comma should be omitted, when the relative clause is
so closely connected with what precedes that it cannot be dropped
without destroying the sense.

examples.
1. “Men in a corner, who have the unhappiness of conversing too
little with present things.”—Swift.
“The waters are nature’s storehouse, in which she locks up her
wonders.”—Izaak Walton.
“He had on a coat made of that cloth called thunder-and-lightning,
which, though grown too short, was much too good to be thrown
away.”—Goldsmith.
2. “Althworthy here betook himself to those pleasing slumbers
which a heart that hungers after goodness is apt to enjoy when
thoroughly satisfied.”—Fielding.
“A man who is good for making excuses is good for nothing
else.”—Dr. Franklin.
“Like Cæsar, Cortes wrote his own commentaries in the heart of
the stirring scenes which form the subject of them.”—Prescott.

remarks.
1. Relative clauses are generally introduced by the relative pronouns who,
which, that, or what.
2. A comma should be placed before the relative clause, even when it is
necessary to complete the meaning of the antecedent,—
a. When the relative is immediately followed by a word or an expression
inclosed in commas; as, “As a man, he may not have deserved the
admiration which he received from those, who, bewitched by his
fascinating society, worshiped him nightly in his favorite temple at
Button’s.”—Macaulay.
b. When the relative has several antecedents that are separated from
each other by commas; as, “All those arts, rarities, and inventions,
which vulgar minds gaze at, the ingenious pursue, and all admire, are
but the relics of an intellect defaced with sin and time.”—South.
 3. The words of which are sometimes preceded by a comma, even when they
are necessary to complete the meaning of the antecedent: as, “His mind was
formed of those firm materials, of which nature formerly hammered out the Stoic,
and upon which the sorrows of no man living could make an impression.”—
Fielding.

Rule IV. Parenthetical Words and Phrases. When single words

and phrases break the connection between closely related parts of a
sentence, they should usually be separated by commas from the rest
of the sentence.
1. Words used parenthetically,—

therefore,
indeed,
perhaps,
namely,
finally,
consequently,
however,
moreover,
nevertheless, &c.

2. Phrases used parenthetically,—

in short,
in truth,
of course,
in fact,
in a word,
you know,
in reality,
no doubt,
as it were, &c.

examples.
1. “As an orator, indeed, he was not magnetic or inspiring.”—G. W.
Curtis.
 “There is, perhaps, no surer mark of folly, than to attempt to
correct the natural infirmities of those we love.”—Fielding.
“There is, however, a limit at which forbearance ceases to be a
virtue.”—Burke.
2. “I had grown to my desk, as it were, and the wood had entered
my soul.”—Lamb.
“In short, he is a memorable instance of what has been often
observed, that the boy is the man in miniature.”—Boswell.

remarks.
1. Words and phrases are said to be used parenthetically, when they obstruct,
as it were, the flow of the sentence, and might be dropped without destroying the
sense.
2. Whenever parenthetical words and phrases readily coalesce with the rest of
the sentence, it is better to omit punctuation marks; as, “I am therefore exceedingly
unwilling that anything, however slight, which my illustrious friend thought it worth
while to express, with any degree of point, should perish.”—Boswell.
3. A distinction should be made between words used parenthetically, and
adverbs qualifying particular words; as, “And with learning was united a mild and
liberal spirit, too often wanting in the princely colleges of Oxford.”—Macaulay.
“That, too, has its eminent service.”—Burke.

Rule V. Parenthetical Expressions.—Expressions of a

parenthetical character should be separated from the rest of the
sentence by commas.

examples.
“She was tumbled early, by accident or design, into a spacious
closet of good old English reading, without much selection or
prohibition, and browsed at will upon that fair and wholesome
pasturage.”—Lamb.
“He [Sheridan] who, in less than thirty years afterward, held
senates enchained by his eloquence and audiences fascinated by
his wit, was, by common consent both of parent and preceptor,
pronounced a most impenetrable dunce.”—Moore.
“It is clear that Addison’s serious attention, during his residence at
the university, was almost entirely concentrated on Latin poetry.”—
Macaulay.

remarks.
1. A distinction should be made between parenthetical words and parenthetical
expressions.
a. Parenthetical words can be omitted without destroying the sense. See
examples under Rule IV.
b. Parenthetical expressions obstruct the flow of the sentence, but can not
be omitted without either destroying the sense, or changing the
meaning intended to be conveyed. See examples given above.
2. When parenthetical expressions are short, or closely connected with the rest
of the sentence, it is better to omit punctuation marks.
3. Writers differ very much in omitting or using commas in parenthetical
expressions. It is sometimes immaterial whether punctuation marks are used or
not, but, in many cases, there are few rules so well adapted to bring out the
meaning of the writer.

Rule VI. Inverted Expressions.—Expressions which are not in

their natural order, are frequently separated from the rest of the
sentence by a comma.

examples.
“In everything that relates to science, I am a whole Encyclopædia
behind the rest of the world.”—Lamb.
“In all unhappy marriages I have seen, the great cause of evil has
proceeded from slight occasions.”—Steele.

remarks.
1. The natural order of the first sentence is, I am a whole Encyclopædia behind
the rest of the world in everything that relates to science.
 2. When the inverted expression is closely connected with what follows, the
commas should be omitted; as,—
“Of Addison’s childhood we know little.”—Macaulay.
“That inward man I love that’s lined with virtue.”—Beaumont and Fletcher.

Rule VII. Short Quotations.—Short quotations should be

separated from what precedes by a comma.

examples.
The Italians say, “Good company in a journey makes the way to
seem shorter.”
A writer in Lippincott’s Magazine says, “It is the little courtesies
that make up the sum of a happy home.”
Schiller has said, “Men’s words are ever bolder than their deeds.”

remarks.
1. An expression resembling a quotation should be preceded by a comma; as,
“Therefore the question still returns, What is the First Principle of all things?”
2. Quotations and general statements introduced by that are frequently
preceded by a comma; as, “Tacitus says of Agricola, that he governed his family,
which many find to be a harder task than to govern a province.”—Arthur Helps.
3. When single words or a part of a sentence are quoted, a comma should not
be used; as, “His wife was a domesticated, kind-hearted old soul, who had come
with him ‘from the queen city of the world,’ which, it seemed, was Philadelphia.”—
Dickens.
4. Quotation divided. “A man could not set his foot down,” says Cortes, “unless
on the corpse of an Indian.”—Prescott.
5. When the quotation is a long one, it should be preceded by a colon.

Rule VIII. Person or Thing Addressed.—The name of the person

or thing addressed, together with its modifying words, should be
separated from the rest of the sentence by commas.

examples.
 “Now, Macaulay, when I am gone, you’ll be sorry that you never
heard me speak.”—Sydney Smith.

“Why, Romeo, art thou mad?”—Shakespeare.

“My lords, we are called upon, as members of this house, as men,

as Christians, to protest against such horrible barbarity!”—Pitt.

remark.
When strong emotion is expressed, an exclamation point should be used; as, “O
Hamlet! thou hast cleft my heart in twain.”—Shakespeare.

Rule IX. Participial Clauses.—Participial clauses, having no

grammatical connection with the rest of the sentence, should be
separated from what follows, and, if they do not commence a
sentence, from what precedes, by commas.

examples.
“Success being now hopeless, preparations were made for a
retreat.”—Alison.
“Such being their general idea of the gods, we can now easily
understand the habitual tone of their feelings towards what was
beautiful in nature.”—Ruskin.

remark.
Being or having been is usually the sign of a participial clause.

Rule X. Verb Omitted.—When a verb, previously used, is omitted,

a comma usually takes its place.

examples.
“Histories make men wise; poets, witty; the mathematics, subtle;
natural philosophy, deep; moral, grave; logic and rhetoric, able to
contend.”—Bacon.
 “Chaucer painted persons; Spenser, qualities.”

remarks.
1. When the comma takes the place of an omitted verb, the main clauses or
numbers should be separated by semicolons.
2. Sometimes a comma does not take the place of an omitted verb; as, “Some
books are to be tasted, others to be swallowed, and some few to be chewed and
digested.”—Bacon.
“Reading maketh a full man, conference a ready man, and writing an exact
man.”—Bacon.

Rule XI. Appositives.—A noun in apposition and its modifiers

should be separated by commas from the rest of the sentence.

examples.
“When death, the great Reconciler, has come, it is never our
tenderness we repent of but our severity.”—George Eliot.
“The exploits of Mercury himself, the god of cunning, may be
easily imagined to surpass everything achieved by profaner
hands.”—Leigh Hunt.

remarks.
1. An appositive is a word, placed by the side of some other word to explain or
characterize it.
2. The comma should be omitted,—
a. When two nouns without modifiers are in apposition; as, Cicero the
orator was born near Arpinum. If the sentence was, Cicero, the
greatest of Roman orators, was born near Arpinum, commas would
be necessary.
b. When a noun and a pronoun are in apposition; as, Mercury himself
surpassed everything achieved by profaner hands.
c. When two pronouns are in apposition; as, He himself did this.
d. Between the parts of a person’s name; as, George William Curtis.
3. In annexing titles to a person’s name, whether the titles are abbreviated or
written in full, commas must be used; as, Richard Whately, D. D., Archbishop of