Engineering law and the I.C.E. contracts

616 Pages·1979·3.011 MB·English

by  Abrahamson, Max William

ENGINEERING LAW AND THE I.C.E.
CONTRACTS
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To the memory of LEONARD ABRAHAMSON incomparable parent and teacher and
to EDNA and GAIL, LYNNE, LEONARD and EMILY for joy received
Engineering Law and the I.C.E.
Contracts
MAX W.ABRAHAMSON
(Mod.) B.A., LL.B., Solicitor
Sometime Scholar in Law of Trinity College, Dublin
Honorary Fellow of the Institution of Engineers of Ireland
Companion of the Institution of Civil Engineers
FOURTH EDITION
With a Foreword by
Sir William Harris

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First edition 1965
Second edition 1969
Third edition 1975
Fourth edition 1979
© Max W.Abrahamson 1965, 1969, 1975, 1979
ISBN 0-203-47372-8 Master e-book ISBN
ISBN 0-203-23973-3 (Adobe e-Reader Format)
ISBN 0-419-16080-9 (Print Edition)
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Preface to the Fourth Edition
As the bible of the civil engineering industry the I.C.E. Conditions have the distinction, in
common with other scripture reflecting diverse and unfortunately combative activity, that
the more they are analysed and used, the more issues appear. That is one of the excuses
for the extra pages in this edition. Some of the problems dealt with have already arisen in
practice, and it would be optimistic to believe that even those that seem most abstruse and
academic will not sooner or later complicate construction or some final accounts.
Many other additions are due to the recent enthusiasm of judges and parliament for
reform, and will surprise those who attribute rigor mortis to law and lawyers. The
industry itself can of course bring pressure and carry out research and investigation to
make sure that all future reforms are beneficial.
A new edition of the F.I.D.I.C. International Conditions was published in 1977,
moving in a different direction to the I.C.E. Conditions. As a result it is no longer
adequate to deal with international contracts in one chapter of a book on the domestic
forms. The chapter on the F.I.D.I.C. Conditions in previous editions of this book
therefore has been omitted, but may be expanded later into a separate volume.
Topics dealt with in new or expanded notes in this edition include—adjustment and
balancing items (pp. 15–16), ingredients of a letter of intent (pp. 18–19), assignment of
contract payments (p. 39), responsibility for temporary works and the contractor’s
responsibility for design of permanent works (pp. 52–5), new decisions relevant to site
and other information supplied by the employer (pp. 61–3) and to cl. 20 of the Conditions
(p. 97), general note on cl. 44 (pp. 138–9), variations to temporary works (p. 170),
variations permitted 51 (pp. 172–4), design changes contributed by or as concessions to
the contractor (pp. 179–84), an important decision on concessions obtained by the
contractor by pressures on the employer (p. 182), errors in and omissions from the bill
(pp. 206–9), contractual aspects of the new Civil Engineering Standard Method of
Measurement (pp. 213–18) and method-related charges (pp. 218–20), retention of title
clauses (p. 262), counterclaims (pp. 269–72), the contract price fluctuations clause (pp.
316–19), disruption claims and their assessment, and acceleration claims (pp. 364–72),
the expanding extent and period of liabilities and side effects on the Conditions (pp. 393–
9 and 430–1), the Unfair Contract Terms Act 1977 (pp. 431–4), tendermanship and
claimsmanship (ch. 17). More than a score of newly unearthed detailed issues on the
Conditions and 102 additional court decisions are included.
M.W.A

Preface to the First Edition
The Institution of Civil Engineers, etc., forms of construction contract are now used for
most English and Irish engineering works, and also abroad. My major aim in this book is
to supply the engineer or contractor turning to any particular clause in the forms with an
analysis of the clause and cross-references, and the background law necessary to apply it.
At the same time the notes and general chapters are planned to give an outline of general
engineering law independent of these forms.
The Association of Consulting Engineers’ service agreements are dealt with in the
same way.
This book is therefore not primarily written for lawyers, and I have shunned legal
jargon not only because outsiders find it pompous and out of date, but because I feel that
it is in practice a real obstacle to understanding and useful co-operation between the
engineer and lawyer. At the same time I hope that this book will be helpful to my
colleagues—the arguments and authorities on doubtful points are set out fully, and I have
tried to make clear the unique problems of engineering, since lawyers almost always
equate civil engineering works, however vast, with having a house built.
The engineers I have had the pleasure of lecturing and advising have, in the nicest
way, made it plain that they generally prefer to steer clear of law and lawyers. As a result
the parties do not always consider the contract forms properly before signature, or even
when there is trouble on the works—but it is certain that they would avoid much eventual
suffering at the hands of lawyers if they did. A knowledge of the contract is obviously
essential to a contractor if he is to value the risks he is taking, and the contractor,
employer and engineer should find the forms, if completely understood, a useful guide on
avoiding or solving many problems.
It is even possible that the engineer may learn some general lessons from the lawyer—
particularly about precision of language and the proper approach to disputes. I hope that
this book will make a small contribution to that also.

Foreword
by
SIR WILLIAM HARRIS, K.B.E., C.B., D.Sc.(Hon.), M.A., F.Eng., F.I.C.E.
Past President of the Institution of Civil Engineers
When, after three years’ hard labour by the Joint Contracts Committee of the I.C.E.,
A.C.E. and F.C.E.C., under my chairmanship, the 5th Edition of the I.C.E. Conditions of
Contract was published by the sponsors in June 1973, there was a great deal of public
debate among engineers, contractors and lawyers. Articles were written, lectures given
and conferences organised and, not surprisingly, opinions differed—even among the
lawyers—on the interpretation and probable effects of a number of the changes that had
been made.
It was at that time that I first got to know Max Abrahamson personally and began to
appreciate his deep interest in and knowledge of the law and practice of civil engineering
contracts. He was one of the first to analyse and, in some respects, criticise the new 5th
Edition and he and I had several meetings to discuss the opinions he expressed. I was
greatly impressed by the depth of thought Mr. Abrahamson had given to the whole
subject and also by his reasonable and constructive attitude throughout our discussions—
even though we continued to differ on a number of issues.
The first two editions of Mr. Abrahamson’s s book (1965 and 1969) were based on the
4th Edition of the I.C.E. Conditions of Contract and, in 1975, after a major re-writing, his
third edition, incorporating the 5th Edition of the I.C.E. Conditions, was published. By
this time these were in fairly general use for new contracts, but there was little experience
of operating them and, of course, no case law at all. Nevertheless, Mr. Abrahamson’s
careful and detailed analysis of the Conditions themselves and of the duties and
responsibilities of the several parties involved in the practical operation of contracts
based on them has been a most valuable aid to all concerned. There must be few
engineers’ or contractors’ offices in which his third edition is not regarded as an essential
reference book.
Since then there has been a number of important developments, such as the
publication of the C.E.S.M.M. in 1976, the Unfair Contract Terms Act 1977 and the
changing attitude to liability for negligence. Moreover, experience in the use of the new
I.C.E. Conditions, the Baxter Indices and the C.E.S.M.M. is accumulating: and although
there is, as yet, little (if any) case law arising from the 5th Edition, there have been
further important court decisions on construction contracts generally. So, once again,
Max Abrahamson has up-dated and expanded his book to take account of all these and to
make available to engineers, contractors, arbitrators and clients contemporary and
comprehensive practical guidance in what is still a complex, though fascinating, subject.
Far be it from me to attempt a critical analysis of Max Abrahamson’s latest work, as
he has done of mine (the 5th Edition itself!). But I have read through all the amendments
and additions and am, once again, impressed by the extent of his knowledge and by his