Ending a Construction Contract - Scottish Construction Contracts - page 244

representatives for work partially carried out up to the date of death. he valuation of
that work may be problematic, particularly if the contract does not have a mechanism
for valuation, and may require equitable adjustment.
Illness and incapacity need to be treated in a like manner, though the position is,
perhaps not surprisingly, not as clear-cut as in the case of death. The effect of illness
or incapacity is one of degree and will depend upon the whole circumstances, most
notably the likely duration of the illness or incapacity in relation to the length of the
contract. Even where illness is not sufficient to bring the contract to an end, it has been
enough to entitle the employer to rescind the contract, see Manson v. Downie (1885),
and to constitute a breach of contract, see McEwan v. Malcolm (1867). However, in
Atwal v. Rochester (2010), the contractor (a sole trader) became seriously ill and was
unable to work. The employer claimed that the contractor had breached his con-
tractual obligations and sought delay damages together with the additional expense
incurred as a result of engaging alternative contractors. he contractor argued that the
contract was discharged by frustration rather than a breach and counterclaimed for
payment of the value of the work done to date. The court agreed with the contractor
on the basis that the contract was a personal service contract in terms of which the
contractorhimselfundertooktocarryouttheworkandmanageanyspecialistwork
carried out by sub-contractors.
Since the vast majority of contractors are now limited companies, the problems
occasioned by death and illness are unlikely to arise on a regular basis. However, it
should be noted that delectus personae may arise in employer/contractor relationships
that do not involve individuals, as demonstrated by the case of Scottish Homes v.
Inverclyde DC (1997). The issue may also arise in the case of architects or engineers
appointed under a construction contract or in the case of an adjudicator named
in a construction contract, see Amec Capital Projects Ltd v. Whitefriars City Estates
Ltd (2004).
9.7 Illegality
While a detailed examination of the concept of illegality is beyond the scope of this
book, it does merit some consideration.
In general terms, an illegal contract is one which the law will not enforce. However,
there is a distinction between illegal contracts and those that are associated with an
unenforceable transaction. Perhaps the best example that can be given to illustrate
the latter is gambling. While gambling is not illegal, until the coming into force of
the Gambling Act 2005, the Scottish courts would not entertain actions to determine
wagers. This was for reasons of public policy, not illegality.
What precisely constitutes an illegal contract is open to question. A number of
vague and differing concepts such as 'moral turpitude' and 'subversive of the interests
of the State' have been used, see Jamieson v. Watt's Trustee (1950). The matter is far
from clear, as is demonstrated by the decision in Cuthbertson v. Lowes (1870) in which
it was held that a contract which contravened a statute was not necessarily illegal.
Whether or not either party questions the legality of the contract the court will have
regard to it, see FWTrevalion&Co .v. JJBlanche&Co . (1919). Where a contract is