Contractual procedures in the construction industry

483 Pages·2012·1.7 MB·English

by  Allan Ashworth.

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Contractual Procedures in the Construction Industry aims to provide students with a io
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comprehensive understanding of the subject and reinforces the changes that are taking n
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place within the construction industry, such as how it is organised and the way in which i
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consultants, contractors, subcontractors and all of those involved in the supply chain d a
obtain work. u
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this book, now in its sixth edition, is an indispensible companion for students taking y P
undergraduate courses in Building and surveying, Quantity surveying, Construction r
Management, and Project Management. it is also suitable for students on hnd/C o
courses in Building and Construction Management as well as foundation degree courses
in Building and Construction Management. C
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Key Features new to this edition:
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• Many chapters have been extensively updated and revised to reflect recent changes
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in procurement.
• A new chapter has been added on Public Private Partnerships (PPP) and the Private r
Finance initiative. e
• A revised section of the book now deals with generic principles regarding the s
conditions of contracts, which can be applied to all forms of contract.
Allan Ashworth is a visiting professor in the school of the Built environment at the
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university of salford and Visiting Professor of Quantity surveying at utAr in Kuala s
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lumpur, Malaysia. he has been a visiting professor in other universities in the uK and w
in new Zealand. he is also the senior Academic Advisor to the Centre for education in o
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the Built environment (CeBe), based at the university of salford. he is a former hMi (her t
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Majesty’s inspector) in the then department for education and employment.
Cover image © Morley von sternberg
www.routledge.com
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Contractual Procedures in the
Construction Industry
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Contractual Procedures in the
Construction Industry
SIXTH EDITION
ALLAN ASHWORTH
Visiting Professor, School of the Built ENvironment, University of Salford
Adjunct Professor, UTAR, Kuala Lumpur, Malaysia
Senior Academic Advisor, Centre for Education in the Built Environment,
University of Salford
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First published 1985 by Pearson Education Limited
Second edition published 1991
Third edition published 1996
Fourth edition published 2001
Fifth edition published 2006
Sixth edition published 2012
Published 2013 by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
711 Third Avenue, New York, NY 10017, USA

Routledge is an imprint of the Taylor & Francis Group, an informa business
Copyright © 1985, 2006, 2012, Taylor & Francis.
The right of Allan Ashworth to be identified as author of
this work has been asserted by him in accordance with
the Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or
by any electronic, mechanical, or other means, now known or hereafter invented, including
photocopying and recording, or in any information storage or retrieval system, without permission
in writing from the publishers.

Notices
Knowledge and best practice in this field are constantly changing. As new research and experience
broaden our understanding, changes in research methods, professional practices, or medical
treatment may become necessary.

Practitioners and researchers must always rely on their own experience and knowledge in
evaluating and using any information, methods, compounds, or experiments described herein. In
using such information or methods they should be mindful of their own safety and the safety of
others, including parties for whom they have a professional responsibility.

To the fullest extent of the law, neither the Publisher nor the authors, contributors, or editors,
assume any liability for any injury and/or damage to persons or property as a matter of products
liability, negligence or otherwise, or from any use or operation of any methods, products,
instructions, or ideas contained in the material herein.
ISBN: 978-0-273-74560-0 (pbk)
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging-in-Publication Data
Ashworth, A. (Allan)
Contractual procedures in the construction industry / Allan Ashworth. — 6th ed.
p. cm.
Includes bibliographical references and index.
ISBN 978-0-273-74560-0 (pbk. : alk. paper)
1. Construction contracts—England. 2. Construction industry—Law and legislation—England.
I. Title.
KD1641.A985 2012
343.4207'8624—dc23
2011040030
Typeset in 10/12.5pt Sabon by 75
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To Margaret, Amanda and Caroline
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Contents
List of figures xv
List of tables xvi
List of boxes xvii
Preface xviii
Acknowledgements xx
Table of relevant statutes xxi
Part 1 Contract Law 1
1 The English legal system 3
The nature of law 3
Classification of law 4
Sources of English law 4
The courts 8
The lawyers 13
Expert witnesses 15
Modernisation 15
Some legal jargon 16
2 Legal aspects of contracts 20
Definition of a contract 20
Agreement 21
The elements of a contract 21
Offer and acceptance 22
Form 24
Consideration 24
Duress and undue influence 25
Unenforceable contracts 25
Mistake 26
Misrepresentation 26
Disclosure of information 27
Privity of contract 27
Express and implied terms 27
Limitations of actions 29
The Unfair Contract Terms Act 1977 29
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viii Contents
Contra proferentem 30
Collateral warranties 30
Agency 31
Subcontracting, assignment and novation 32
3 Discharge of contracts 33
Discharge by performance 33
Discharge under condition 34
Discharge by renunciation 34
Discharge by fresh agreement 34
Frustration 34
Determination of contract 35
Assignment 36
4 Remedies for breach of contract 37
Nominal damages 37
Substantial damages 38
Remoteness of damage 38
Special damage 38
Liquidated damages 38
Unliquidated damages 39
Specific performance 39
Injunction 39
Rescission 39
Quantum meruit 39
5 Settlement of disputes 41
The reasons why disputes arise 42
Issues for the resolution of disputes 43
Claims 43
Adjudication 48
Arbitration 49
Litigation 59
Alternative dispute resolution 60
Part 2 Procurement 63
6 Forms of contract 65
The standard form of contract for building works 65
Types of contract envisaged 66
Employer and contractor 66
Main contract forms 68
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Contents ix
Joint Contracts Tribunal (JCT) forms 68
Standard Building Contract 69
Intermediate Building Contract 70
Minor Works Building Contract 71
Design and Build Contract 71
Major Project Construction Contract 71
Construction Management 72
Management Building Contract 72
Prime Cost Building Contract 72
Measured Term Contract 73
Housing Grants Works Building Contract 73
Adjudication Agreement 73
Framework Agreement 73
Contract guides 74
Other main forms of contract 74
Other forms of contract 78
The Housing Grants, Construction and Regeneration Act 1996 79
Other contractual documentation 80
Appointment of consultants 81
7 Contract strategy 83
Industry analysis 84
Contracts in Use survey 84
Major issues to be resolved 92
The framework of society 94
Employers’ essential requirements 95
Procurement management 96
Coordinated project information 97
Added value 97
Conclusions 98
8 Contract procurement 99
Methods of price determination 100
Measurement contracts 100
Cost reimbursement contracts 102
Contractor selection 104
Contractual options 109
Review 121
9 Contract selection 123
Employers’ requirements 124
Factors in the decision process 125
Conclusions 137