Civil Engineering Reference
In-Depth Information
pointed away, rather than to, an implied term, because the parties had clearly already
consideredtheconsequencesofafailuretoproceedregularlyanddiligently.Generally,
priority was given to the principle that 'provided that the main contractual obligation
wasanobligationtocompletebyacertaindate,itwasunnecessaryandunhelpfulto
impose other interim progress obligations on the Contractor'.
he most common examples in construction contracts of implied obligations relate
to the standards to be achieved by a contractor (see Section 5.3).
Over the years, the courts have become increasingly willing to imply terms which,
in their most general form, have tended to require the employer and his agents (e.g.
the architect or engineer) to fulfil their obligations timeously to allow a contractor
to progress their works. While each case will necessarily turn on its own facts, the
following terms have been implied in main contracts by the courts:
•
that the employer and its agent (in this case the engineer) were obliged to pro-
vide the contractor with all necessary details and instructions in sufficient time to
enable the contractor to execute and complete the works in 'an economic and expe-
ditious manner and/or in sufficient time to prevent the claimants being delayed
in such execution and completion', see
Neodox Ltd
v.
The Mayor, Aldermen and
BurgessesoftheBoroughofSwintonandPendleburyBC
(1958). Similar duties to
the foregoing would also appear to be incumbent upon a contractor when supply-
ing necessary information and not hindering completion by a sub-contractor, see
J&JFeeLtd
v.
he Express Lift Co. Ltd
(1993). Where the contractor has prepared
a contract programme such that the programmed completion date is earlier than
the date for completion stated in the contract, the contractor is entitled to com-
plete the works in accordance with the programme. However, the employer is only
obliged to act within timescales that allow the contractor to complete the works in
accordance with the contractual completion date and not to the contractor's accel-
erated programme, and the court will not imply a term to the contrary, see
Glenlion
Construction Ltd
v.
he Guinness Trust
(1987).
•
not to hinder or prevent the contractors from carrying out their obligations in
accordance with their contract or from executing the works in a regular and orderly
manner, and to give possession of the site within a reasonable time, see
London
Borough of Merton
v.
Stanley Hugh Leach Ltd
(1985).
•
theemployermusttakeallreasonablestepstoenablethecontractortodischargeits
obligations and to execute the works in an orderly and regular manner, including
things which the architect is obliged to do to facilitate this, see
Mackay
v.
Dick and
Stevenson
(1881) and
Lubenham Fidelities and Investments Co. Ltd
v.
South Pem-
brokeshire DC and Another
(1986).
•
an employer, if he becomes aware that a member of his professional team is not
performing correctly, has a duty to advise that team member accordingly, akin
to the duty discussed by the Court of Appeal in
Panamena Europea Navigación
(Compañía Limitada)
v.
FrederickLeyland&CoLtd
(1947) and also discussed
(but held not to be implied in the circumstances of that case) in
Lubenham
Fidelities Ltd
.
