Traditionally a third party could only acquire rights under a contract if the contract was assigned. The Contracts (Rights of Third Parties) Act 1999 makes it possible for third parties to acquire rights providing they are identified in the contract. The rights acquired are usually identified in a schedule. In litigation, a third party may also refer to an additional party who is joined to the proceeding by the defendant. Time at large – a consequence of the Prevention principle , whereby if a contractor has been delayed from performing the contract and there is no mechanism for extending the completion date, the contractor no longer has to comply with the original date for completion and instead need only complete within a reasonable time. foreseen at the time the contract was entered into. There is no standard allocation for these under English law, but in the absence of express provision it is usually the case that the contractor has accepted the risk. Civil engineering contracts, such as the FIDIC forms, where the risk tends to be greater due to (for example) tunnelling activity, will usually provide for Extension of time and Loss and expense arising from such conditions. Unliquidated damages – damages which have not been quantified and stated in the contract in the manner of Liquidated damages . Unliquidated damages will usually be assessed and quantified by the court based on the evidence available to it, for example, general damages. Unforeseen ground conditions – these are conditions relating to the site which the contractor could not reasonably be expected to have
Waiver – a waiver is the surrender of a legal right which a party would otherwise be able to exercise. Waiver may be express, by agreement,
or implied, by conduct. Parties to a contract occasionally unwittingly waive a term of the contract by conducting themselves in a way which is entirely inconsistent with that term, usually because they were not aware of the existence of the term. Warranty – a warranty is a term of a contract which , when breached, will give the innocent party the right to damages but will not allow him to regard himself as discharged from further performance. See also Duty of care agreement . Without prejudice – this term refers to exchanges between the parties which are confidential, and which are not intended to be referred to in court or any of the documents submitted to the court. A without prejudice communication can only be validly so called once a dispute has arisen and there is a position to be prejudiced i.e. the formal position adopted for the purposes of the litigation.
Z clause –under the NEC form of contract the parties may expand upon the provisions of the original drafting by producing bespoke Z
clauses to supplement the core clauses.
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