Payment - Scottish Construction Contracts - page 222

The alteration to the work may not amount to breach of contract as the employer
may, for example, have power to instruct variations in terms of the contract. Similarly,
the contractor may suggest variations which are approved by the employer, see Mercer
v. Wright (1953). It appears that if a contractor wishes to claim for payment quantum
meruit ,hemayhavetoadvisetheemployeratthetimewhenthediicultybecomes
apparent, see Mackay v. Lord Advocate (1914). It is submitted that this is correct as it
offers the employer an opportunity to choose between proceeding with the contract
works on the basis of payment quantum meruit or halting the work because of the
frustration.
If, however, the works have become more difficult or more expensive because of
matterswhichexistedatthetimeofcontracting,butwhichthecontractordidnotfore-
see,thenthecontractwillnotbefrustratedandthecontractorwillhavenoentitlement
to payment quantum meruit ,see Davis Contractors Ltd v. Fareham UDC (1956).
Where a contractor is entitled to make a claim for payment quantum meruit ,then
they are entitled to be paid at ordinary or market rates, or where no such rates are
available, they are entitled to be paid a reasonable rate, see Avintair Ltd .heparty
seeking payment quantum meruit is entitled to lead evidence to prove what would
be a reasonable rate in the circumstances, see Wilson v. Gordon (1828). It appears
that a building contractor can include in their rate elements for work carried out,
materialsupplied,overheadcostsandreasonableproit,see Monk Construction Ltd
v. Norwich Union Life Assurance Society (1992). In addition to proving that the rate
charged is reasonable, the party claiming payment will also have to prove to the court
thattheamountoftimespentcarryingouttheworkwasreasonable,see ScottishMotor
Traction Co .v. Murphy (1949).
8.5 Quantum lucratus
Disputessometimesariseinasituationwhereapersonhasingoodfaithcarriedout
works to another's land or property where there is no contract between the parties.
In such a situation the party carrying out the work cannot claim payment in terms of
the contract or payment quantum meruit .heremay,however,beanentitlementto
paymentona quantum lucratus basis,thatis,seekingtorecoverthevalueofthelandor
property owner's enrichment, see, for example, Newton v. Newton (1925). Quantum
lucratus is a branch of the law of recompense and is an equitable remedy requiring
an owner of land to pay for works carried out by another on their land as a result of
which they are enriched. Quantum lucratus does not apply to the situation where a
third party is enriched by work carried out by the owner of land or property to that
land or property, see Edinburgh and District Tramways Company Ltd v. Courtenay
(1909). It may, however, apply in the situation where work is carried out to common
property, see Stark's Trustees v. Cooper's Trustees (1900).
Where work is carried out to land or property without the owner's permission or
agreement,thentheownercaninsistthattheworksareremoved.Iftheownerdoesnot
do so, then the principle of quantum lucratus deems him to have accepted the benefit