Civil Engineering Reference
In-Depth Information
Thirdly, if the work is interrupted or delayed by unforeseen complica-
tions, the contractor is unlikely to be able to complete his contract in
time.'
216
The Court of Appeal, affirming the court's decision at first
instance,
accepted this analysis.
4.3 Variation of contract
It is important to distinguish between a variation expressly authorised
under the terms of the contract (e.g. variation of the 'Works' under JCT
contracts) and 'variation of contract'. The latter phrase is used to mean a
change in the terms of the contract itself.
It is, of course, open to the parties to a contract to agree any changes to the
terms of that contract which they please, provided that such changes are not
illegal or do not render the contract void in some way. The important point
is that the parties must both agree to the change, and the change then
becomes, in effect, another contract between them. It follows that, unless
the change is made by deed, which is always advisable in such circum-
stances, there must be consideration for the change - that is, there must be a
return to one party for any benefit conferred upon the other party by the
change.
An attempted variation of contract is illustrated in the case of
D&C
Builders Ltd
v.
Rees
217
. There the claimants had carried out work to the value
of £482, but the defendant failed to pay the account. The claimants pressed
for payment for several months. Finally, the defendant's wife, knowing that
the claimants were in financial difficulties, offered £300 in settlement, saying
that if the offer were not accepted, nothing would be paid. This was a clear
attempt to vary the terms of the contract which specified the contract sum.
The claimants accepted a cheque for £300 and gave a receipt 'in completion
of the account'. Later, they sued for the balance. The Court of Appeal held
that the claimants were not barred from recovering the balance. Quite apart
from the fact that the claimant's consent had been obtained under pressure,
there was lack of consideration, there was no accord and satisfaction
and there was no equitable ground disentitling the claimants to recover.
Unless variations are specifically authorised by the terms of the contract,
any change in the work will become a variation of contract. Also, if the
power to order variations is in any way limited, any changes beyond the
limits specified or implied will also be variations of contract. For instance,
insofar as the power of the architect to order variations under the JCT forms
is limited, and there are changes that need to be made to the works beyond
those powers, they must then become the subject of a separate agreement
between the employer and contractor. The architect will have no authority
216
(1975) 8 BLR 88 at 100 per Buckley LJ.
217
[1965] 3 All ER 837.
