Civil Engineering Reference
In-Depth Information
There is an implied term in every building contract that the employer will give possession
of the site to the contractor within a reasonable time. This means that the contractor must
have possession in sufficient time to enable the completion of the Works to be achieved by
the contract date for completion. For example, under the terms of SBC, clause 2.4 stipulates
that the contractor must be given possession on the date set out in the contract particulars.
Iftheemployerfailstogivepossessiononthedatestated,itisaseriousbreachofcontract.
If, as sometimes happens, there is no express term dealing with the topic, a term would be
implied and the failure would be a breach of such a term. Failure to give possession is a
breach of such a crucial term that if the failure is continued for a substantial period, it may
amount to repudiation on the part of the employer. If the contractor accepts such a breach,
an action for damages may be started, which would enable the contractor to recover the loss
of the profit that would otherwise have been earned. Generally, contractors are not eager to
treat the breach as repudiation, but simply as a breach of contract for which they can claim
the contractor to recover such losses through the contract mechanism (clause 4.24.5) and
hopefully avoids the difficulties resulting from accepted repudiation. However, it should be
noted that the contract provisions do not displace the contractor's right to use common law
remedies if so inclined.
The position envisaged in the question is still quite common, particularly in local author-
ity housing contracts, and it was well stated as follows:
Taken literally the provisions as to the giving of possession must I think mean that un-
lessitisqualifiedbysomeotherwordstheobligationoftheemployeristogiveposses-
sion of all the houses on [the date for possession]. Having regard to the nature of what
was to be done that would not make very good sense, but if that is the plain meaning to
be given to the words I must so construe them.
4
This was a case where the right to possession had been qualified in the appendix to the JCT
63 form of contract. In order to achieve possession in parts under SBC, it is necessary to
complete the contract particulars accordingly. Possession as described cannot be achieved
by anything in the bills of quantities; clause 1.3 makes clear that nothing in the bills can
