Introduction - Building Contract Claims - page 2

1.2.1 Contractual claims
These are claims that arise out of the express provisions of the particular
contract, e.g. for 'direct loss and/or expense' under certain clauses of the
Joint Contracts Tribunal Limited ( JCT) Standard Forms. They make use
of the machinery in the contract to process the claim and produce a result.
The principal reason for having such provisions in the contract is to avoid
the necessity for the contractor to have to seek redress at common law and the
inevitable expense involved for both parties in doing so. Most standard form
contracts in any event preserve the contractor's right to seek damages at
common law if he is not satisfied with his reimbursement under the contract.
1.2.2 Common law claims
Common law claims are sometimes and misleadingly called 'ex-contractual'
or 'extra-contractual' claims. These terms should not be confused with the
Latin term ex contractu , which is sometimes found in legal textbooks to refer
to claims 'arising from the contract'.
Common law claims are claims for damages for breach of contract under
common law and/or legally enforceable claims for breach of some other
aspect of the law, e.g. in tort or for breach of copyright or under statute.
Entitlement to such claims is expressly preserved to the contractor by the
JCT Forms: see JCT 98, clause 26. It is also so preserved by most other
standard forms, and a common law claim for breach may avoid some of
the restrictions under the contract, regarding the giving of notices and so on,
but it may be more restricted in scope than the matters for which a contract-
ual claim can be made, some of which (for example, architect's instructions)
are not breaches of contract.
1.2.3 Quantum meruit claims
A quantum meruit claim ('as much as he has earned') provides a remedy
where no price has been agreed. There are four situations:
(1) Where work has been carried out under a contract, but no price has been
agreed
(2) Where work has been carried out under a contract believed to be valid,
but actually void
(3) Where there is an agreement to pay a reasonable sum
(4) Where work is carried out in response to a request by a party, but
without a contract. This is usually termed a claim in quasi-contract or
restitution. Work done following a letter of intent is a good example.
The type of claim and the method of valuation are two different things. It is
useful to consider the method of valuation under two heads: