Basis for common law claims - Building Contract Claims - page 77

It is sometimes argued that this is authority for what is sometimes referred
to as 'sufficient possession' and that, therefore, the employer need give only
that degree of possession which is necessary to enable the contractor to carry
out work. However, the statement is clearly obiter , and must be treated with
caution because Megarry J had already said at the beginning of the previous
paragraph that 'I do not think that I have to decide these or a number of
other matters relating to possession'. A phrase from Keating is also often
called in aid in this connection:

'Provided that the Contractor has sufficient possession, in all the circum-
stances, to enable him to perform, the Employer will not be in breach of
contract.' 233
Keating's only authority appears to be a Canadian case in the footnote 234 .It
does not appear to support the statement. The contract referred to did not
contain a clear possession clause:

' . . . s.52 merely stipulates that the site of the work is to be provided by the
appellant; it does not provide for the degree of possession of the site that
was to be afforded to the respondent. It is obvious that in order to be able
to perform his obligations under a construction contract, the contractor
must have access to the site of the work and must also have, at least to a
certain extent, possession of that site.' 235

Again:

' . . . the appellant failed to observe an implied term that the respondent
would have a sufficient degree of uninterrupted and exclusive possession
of the site to permit it to carry out its work unimpeded and in the manner
of its choice.' 236

In the context of a contract which does not contain a possession clause, that
may be a correct statement of the law. However, Canadian decisions are not
binding in England and they may not even be persuasive, particularly when
there is authority within the English jurisdiction.
In Freeman & Son v. Hensler it was stated:

'I think there was an implied condition on the part of the defendant
that he would hand over the land to the plaintiffs to enable them to
carry out what they had contracted to do, and that it applied to the
whole area.' 237

This concerned a contract in which nothing was said about possession. The
court considered the matter so important that they were prepared to imply a
term that possession of the whole site must be given.

233 Stephen Furst and Vivian Ramsey, Keating on Building Contracts , 7th edition, 2001, Sweet &
Maxwell at 711.
234 The Queen v. Walter Cabot Construction (1975) 21 BLR 42.
235

(1975) 21 BLR 42 at 50 per Pratte J.

236

(1975) 21 BLR 42 at 50 per Urie J.

237

(1900) 64 JP 260 at 261 per Collins LJ.