Contractors’ Obligations - Scottish Construction Contracts - page 131

Secondary Option X17 provides that if a Defect included in the Defects Certificate
shows low performance with respect to a performance level stated in the Contract
Data, the Contractor pays the amount of low performance damages stated in the
Contract Data.
5.5 Progress of the works
5.5.1 Common law
Unless it is specified in the contract that the contractor must complete by a specified
date or within a specified time, the contractor is obliged to complete the works within
a reasonable time. The reasonableness of the time taken is considered in the light of
the circumstances at the time of performance of the contract, see H&ETaylor v. P&
WMaclellan (1891).
The obligation to complete in a reasonable time may also come into play where
there are contractual time limits set down but there has been an act or omission of the
employer putting the employer in breach of the contract. For example, if the employer
failed to give the contractor access to the site timeously, the contractor would not be
bound by the contractual time limit.
In these circumstances, the contractor's obligation is to complete within a reason-
able time, see T&RDuncanson v. he Scottish County Investment Co. Ltd (1915).
Further, if the employer is responsible in any way for the failure to achieve the com-
pletion date they are not able to recover any contractual liquidated damages from the
contractor for the period of delay for which they were responsible, see Peak Construc-
tion (Liverpool) Ltd v. McKinney Foundations Ltd (1970)and Percy Bilton Ltd v. Greater
London Council (1982).
These rules apply even if the failure by the employer is not due to fault on their part.
Inacasewherethereweresquattersonasiteresultingintheemployerbeingunable
to give the contractor possession of the site, the court still held that the employer was
in breach which meant the contractor's obligation to complete by the completion date
changed to an obligation to complete in a reasonable time, see Rapid Building Group
Ltd v. Ealing Family Housing Association Ltd (1984).
Similarly, if the employer orders extra work beyond that specified in the original
contract which, as a consequence, increases the time required to complete the work,
in the absence of any provisions in the contract that allow an extension of time, the
employer is no longer able to claim any penalties as a result of the late completion, see
Dodd v. Churton (1897). See also Section 6.5 in this regard.
Where the contractor's obligation is to complete within a reasonable time, it is still
possible for an employer to claim unliquidated damages (i.e. their actual losses which
theywouldberequiredtocalculateandprove)ifthecontractortakeslongerthanthe
time which would be considered reasonable in the circumstances.
It should be noted that in each of the cases referred to, there was no mechanism
in the contract to extend the completion date as a result of the matters causing
delay. Where there is such a mechanism, this would operate, thereby extending the