Glossary – common construction legal terms
Abatement – a common law right which a party has, when defending a claim, to demonstrate that the value of the subject matter is reduced by
Best endeavours – whilst not an absolute obligation, a party required to use best endeavours to achieve a particular result should take all possible steps that are available to it, which may include expenditure ( Jet2. com v Blackpool Airport Limited [2012] EWCA Civ 417 ), but it may still have regard to its own commercial interests, and certainly should not undertake a course of action that could result in the ruin of the company ( Terrell v Mabie Todd and Co. Ltd [1952] 69 RPC 234 ). Contrast with Reasonable endeavours . Breach of contract – where a party fails to comply with a term of the contract. The consequences of the breach will depend on whether the term breached is a Condition , a Warranty or an Innominate term . Burden of proof – the duty placed upon a party to prove or disprove a disputed fact. In civil cases, the burden can shift between the claimant and the defendant, depending on which party is asserting or advancing a particular matter or fact. private law, such as business law, and which governs both transactions and the disputes which may arise from them. Civil codes are common in many Jurisdictions , including the majority of Europe, the Middle East and North Africa, and may impose certain mandatory obligations on contracting parties. Collateral warranty – see Duty of care agreement . Common law – the development of law based on judicial precedent, in the form of case law. The common law system exists in the United Kingdom and other Jurisdictions based on English law, such as Commonwealth member states and the United States. Civil code – a legal system based on Roman and Napoleonic Law (as opposed to Common law ) which is designed to deal with aspects of
virtue of damages it has suffered as the result of a breach of warranty (in relation to contracts for sale of goods or works and labour). Acceleration – when the pace of contract works is increased because (1) the contractor is in delay and acceleration is necessary to ensure the original completion date is met or (2) the contractor is not in delay but other matters have caused the project to be behind schedule. In the former case the contractor will generally voluntarily accelerate to avoid the imposition of Liquidated damages . In the latter case, the contractor is not obliged to accelerate without an instruction. Adjudication – a form of summary dispute resolution designed to be binding unless overturned by subsequent court or arbitration proceedings. It is implied into construction contracts in the UK by statute (the Construction Act ), but also exists in some standard form contracts and in a number of Commonwealth jurisdictions. Anticipatory breach – where a party to a contract demonstrates an intention not to perform a contract or not to comply with its terms before the time for such performance or compliance has arrived. Back to back contract – a contract, usually a subcontract, which is drafted to be on near identical terms to a main contract or the next contract in the chain. Care needs to be taken when dealing with Liquidated damages provisions in back to back contracts as these should cover losses envisaged under the individual contract, not those incurred under other contracts in the chain.
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