Contract administration - Construction Contracts - page 90

52 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
topics of the contractor?
It is common for contracts to include so-called 'partnering' terms in contracts. These terms
tend to be of the 'parties will act in a sprit of mutual trust and respect and in a collaborative
manner' type. Partnering is of course quite different from partnership. Partnership is a legal
concept describing the situation where two or more people enter into business together with
a view to profit. A significant point is that partners in a partnership share both profits and
losses. Partnering does not attempt to create that kind of relationship between employer and
contractor.Itwouldbeexceedingly strange ifitdid.Partnering hasbeenneatly definedas'a
structured approach to facilitate team working'. 13 The idea appears to be to try to get back
to the way contracts were carried out in the 1950s and earlier, before the blame culture took
hold and finance ruled.
The problem is that the inclusion of partnering terms in contracts has led parties to such
contracts to believe that partnering terms somehow take precedence over other terms. In
practice, the courts treat partnering terms like any other terms. They try to decide what they
mean and what the parties intended when they agreed them. The courts do not make blanket
assumptions about such terms. Therefore, the answer to the question lies in an examination
of what the contract says. Does the contract expressly state that the employer can see the
contractor's topics? If the answer to that question is 'No', the employer has no power to
demand the topics. In theory, if the parties have agreed to work in a spirit of mutual trust,
there ought to be a remedy if that does not happen. However, that would require the injured
party to prove that the other did not work in a spirit of mutual trust. In turn, that would re-
quireacourttodecidewhatworkinginaspiritofmutualtrustactuallymeantinpracticeand
whether particular instances demonstrated a failure on the part of one of the parties. So far,
the courts have indicated that they are not eager to grapple with this problem nor prepared
to imply any terms of good faith into construction contracts as a matter of law. 14 Moreover,
the injured party would then have to prove what loss it had suffered as a direct result of the
other party's failure.