Contracts

Contracting essentially involves an agreement between two parties in relation to a particular matter. When defined in this way, contracting has been occurring as a social practice since humans first bartered and conducted trade, and should be understood as both an economic as well as a social transaction. This entry explains key aspects of the sociology While contracting is commonly understood to be a market based transaction, Polyani famously argued that for most of recorded history commercial transactions were in fact secondary to social relationships. In other words, whenever economic transactions occurred, they were always in the context of reciprocal social relationships. Historically the primary mode of exchange may well have been based on social exchange and reciprocity, however with the rise of extensive industrialization in the 18th Century, the primary mode of exchange has led to more of a market based mode of exchange in developed countries, with the focus more about the economic transaction. As an agreement between two entities, contracting is an essential element to economic systems as it is the basis of most transactions, whether the agreement is verbal or written, explicit or implied. Contracting is thus a pervasive activity in our society, particularly between organizations, although individuals also engage in contracting. Typically, when discussing contracting, authors have either focused on the nature of the agreement itself, or on the governance arrangements in place to carry out the agreement.

The need for legislative reform of the privity doctrine in commercial contracts in Malaysia : a comparative analysis

This thesis commences with the proposition that the first limb of the doctrine of privity causes injustice to third party beneficiaries in Malaysia, particularly in commercial contracts. The doctrine of privity has been the subject of criticism by the judiciary and academic commentators in common law jurisdictions, mainly directed at the first limb of the doctrine, whereby only parties to a contract can sue and be sued. The first limb prevents a third party from enforcing benefits conferred on them by those contracts thereby resulting in third parties suffering loss and injustice to those parties. In several common law countries, such as England, Australia, New Zealand and Singapore, legislative reform of the doctrine has occurred. The legislative reform has abrogated to a significant extent the doctrine of privity in commercial contracts. Malaysia is a common law country, where the doctrine of privity is still applied to contracts. An analysis of Malaysian case law demonstrates that the most affected third party beneficiaries are those seeking to enforce insurance and construction contracts. While a small number of other third parties to commercial contracts, such as agreements to pay for work done, sale and purchase agreements and tenancy agreements are also affected, the detriment is not as significant. As a consequence, this thesis focuses primarily on the impact of the doctrine of privity on commercial contracts in the areas of insurance and construction in Malaysia The thesis aims to recommend appropriate reforms to address the injustices arising from the privity doctrine for third parties seeking to obtain the benefit of insurance and construction contracts, which may also benefit third parties to other types of commercial contracts. While the Malaysian insurance, consumer protection, negotiable instruments and agency laws allow third party beneficiaries to enforce benefits in contracts, the rights are found to be inadequate. As not all third parties seeking to enforce an insurance or construction contract can rely upon the legislation, the injustice arising from the doctrine of privity remains and needs to be addressed. To achieve this aim, a comparative analysis of the rights of third party beneficiaries under insurance and construction contracts in Malaysia, Australia and England is undertaken. The results of the analysis are used to identify appropriate elements for a legislative framework guided by the three essential criteria for effective law reform developed in the thesis. The three criteria are certainty, public interest and justice. The thesis recommends first the enactment of general legislation applicable to all commercial contracts including insurance contracts. Secondly, the thesis recommends specific targeted legislation to address the injustice faced by third party beneficiaries in construction contracts.

Performance and gaseous and particle emissions from a liquefied petroleum gas (LPG) fumigated compression ignition engine

In this study, an LPG fumigation system was fitted to a Euro III compression ignition (CI) engine to explore its impact on performance, and gaseous and particulate emissions. LPG was introduced to the intake air stream (as a secondary fuel) by using a low pressure fuel injector situated upstream of the turbocharger. LPG substitutions were test mode dependent, but varied in the range of 14-29% by energy. The engine was tested over a 5 point test cycle using ultra low sulphur diesel (ULSD), and a low and high LPG substitution at each test mode. The results show that LPG fumigation coerces the combustion into pre-mixed mode, as increases in the peak combustion pressure (and the rate of pressure rise) were observed in most tests. The emissions results show decreases in nitric oxide (NO) and particulate matter (PM2.5) emissions; however, very significant increases in carbon monoxide (CO) and hydrocarbon (HC) emissions were observed. A more detailed investigation of the particulate emissions showed that the number of particles emitted was reduced with LPG fumigation at all test settings – apart from mode 6 of the ECE R49 test cycle. Furthermore, the particles emitted generally had a slightly larger median diameter with LPG fumigation, and had a smaller semi-volatile fraction relative to ULSD. Overall, the results show that with some modifications, LPG fumigation systems could be used to extend ULSD supplies without adversely impacting on engine performance and emissions.

The Construction and Performance of Commercial Contracts

This book analyses the principles underlying the construction and application of a number of boilerplate and other clauses commonly included in commercial contracts. The first Part of the work deals with general principles of interpretation. It then considers clauses which allocate commercial risk; clauses relating to performance; clauses introducing new parties by way of assignment, novation or nomination; clauses such as guarantees and indemnities which create liabilities in third parties; and dispute resolution clauses including governing law. The authors highlight common issues surrounding the application of these clauses in practice and, where appropriate, make drafting recommendations based on their analysis of case law and the operation of relevant statutes. This is a very accessible resource for all commercial practitioners.

Total factor productivity growth and convergence in the petroleum industry : empirical analysis testing for convexity

While economic theory acknowledges that some features of technology (e.g., indivisibilities, economies of scale and specialization) can fundamentally violate the traditional convexity assumption, almost all empirical studies accept the convexity property on faith. In this contribution, we apply two alternative flexible production technologies to measure total factor productivity growth and test the significance of the convexity axiom using a nonparametric test of closeness between unknown distributions. Based on unique field level data on the petroleum industry, the empirical results reveal significant differences, indicating that this production technology is most likely non-convex. Furthermore, we also show the impact of convexity on answers to traditional convergence questions in the productivity growth literature.

Government procurement contracts and minimum labour standards enforcement: Rhetoric, duplication and distraction?

Government contracts for services typically include terms requiring contractors to comply with minimum labour standards laws. Procurement contract clauses specify reporting procedures and sanctions for non-compliance, implying that government contracting agencies will monitor and enforce minimum labour standards within contract performance management. In this article, the case of school cleaners employed under New South Wales government contracts between 2010 and 2011 is the vehicle for exploring the effectiveness of these protective clauses. We find that the inclusion of these protective clauses in procurement contracts is unnecessary in the Australian context, and any expectations that government contracting agencies will monitor and enforce labour standards are misleading. At best, the clauses are rhetoric, and at worst, they are a distraction for parties with enforcement powers.

New laws for off the plan contracts in Queensland

The Land Sales Act 1984 regulates “off the plan” sales in Queensland in conjunction with several provisions in the Body Corporate and Community Management Act 1997. Together the Acts regulate sales in both unit developments and housing estates. From 2010 to 2013 the Queensland Government undertook a comprehensive review of the Land Sales Act 1984 to identify opportunities to modernise and improve the legislation. Significant changes were recommended by the Review to align the Land Sales Act 1984 (LSA) with current surveying and conveyancing practice and to overcome a number of practical issues faced by developers under the current legislation. A significant outcome of the review is the removal of provisions related to off the plan community title sales from the LSA to the Body Corporate and Community Management Act 1997 (BCCMA) and the Building Units and Group Titles Act 1980 (BUGTA). This article examines the Land Sales and Other Legislation Amendment Act 2014 due to commence in November 2014.

Insurance and transport law : controlling insurance contract terms : Section 54 of the Insurance Contracts Act – compliance, recovery and accountability

Commonwealth legislation covering insurance contracts contains numerous provisions designed to control the operation and effect of terms in life and general insurance contracts. For example, the Life Insurance Act 1995 (Cth) contains provisions regulating the consequences attendant upon incorrect statements in proposals [1] and non-payment of premiums, [2] provides that an insurer may only exclude liability in the case of suicide if it has made express provision for such contingency in its policy, [3] and severely restricts the efficacy of conditions as to war risks. [4] The Insurance Contracts Act 1984 (Cth) is even more intrusive and has a major impact upon contractual provisions in the general insurance field. It is beyond the scope of this note to explore all of these provisions in any detail but examples of controls and constraints imposed upon the operation and effect of contractual provisions include the following. A party is precluded from relying upon a provision in a contract of insurance if such reliance would amount to a failure to act with the utmost good faith. [5] Similarly, a policy provision which requires differences or disputes arising out of the insurance to be submitted to arbitration is void, [6] unless the insurance is a genuine cover for excess of loss over and above another specified insurance. [7] Similarly clause such as conciliation clauses, [8] average clauses, [9] and unusual terms [10] are given qualified operation. [11] However the provision in the Insurance Contracts Act that has the greatest impact upon, and application to, a wide range of insurance clauses and claims is s 54. This section has already generated a significant volume of case law and is the focus of this note. In particular this note examines two recent cases. The first, Johnson v Triple C Furniture and Electrical Pty Ltd [2012] 2 Qd R 337, (hereafter the Triple C case), is a decision of the Queensland Court of Appeal; and the second, Matthew Maxwell v Highway Hauliers Pty Ltd [2013] WASCA 115, (hereafter the Highway Hauliers case), is a decision of the Court of Appeal in Western Australia. This latter decision is on appeal to the High Court of Australia. The note considers too the decision of the New South Wales Court of Appeal in Prepaid Services Pty Ltd v Atradius Credit Insurance NV [2013] NSWCA 252 (hereafter the Prepaid Services case).These cases serve to highlight the complex nature of s 54 and its application, as well as the difficulty in achieving a balance between an insurer and an insured's reasonable expectations.

Comparing the effect of inadequate documentation to the cost management and tendering processes in managing contractor and fixed lump sum contracts in Australia

Purpose of this paper This research aims to examine the effects of inadequate documentation to the cost management & tendering processes in Managing Contractor Contracts using Fixed Lump Sum as a benchmark. Design/methodology/approach A questionnaire survey was conducted with industry practitioners to solicit their views on documentation quality issues associated with the construction industry. This is followed by a series of semi-structured interviews with a purpose of validating survey findings. Findings and value The results showed that documentation quality remains a significant issue, contributing to the industries inefficiency and poor reputation. The level of satisfaction for individual attributes of documentation quality varies. Attributes that do appear to be affected by the choice of procurement method include coordination, build ability, efficiency, completeness and delivery time. Similarly the use and effectiveness of risk mitigation techniques appears to vary between the methods, based on a number of factors such as documentation completeness, early involvement, fast tracking etc. Originality/value of paper This research fills the gap of existing body of knowledge in terms of limited studies on the choice of a project procurement system has an influence on the documentation quality and the level of impact. Conclusions Ultimately research concludes that the entire project team including the client and designers should carefully consider the individual projects requirements and compare those to the trade-offs associated with documentation quality and the procurement method. While documentation quality is definitely an issue to be improved upon, by identifying the projects performance requirements a procurement method can be chosen to maximise the likelihood that those requirements will be met. This allows the aspects of documentation quality considered most important to the individual project to be managed appropriately.

Characterization of VOCs from LPG and unleaded petroleum fuelled passenger cars

The study monitored the emissions of volatile organic compounds (VOCs) from the exhaust of cars fuelled by liquefied petroleum gas (LPG) and unleaded petrol (ULP). Six cars, four fuelled by LPG and two by ULP, were tested on a chassis dynamometer at two different cruising modes of operation (60 km h−1 and 80 km h−1) and idle. A total of 33 VOCs were identified in the exhaust of both types of fuels by the use of GC/MS. Due to the complexity of the dataset, Multi Criteria Decision Making (MCDM) software PROMETHEE and GAIA was used to rank the least polluting mode and fuel. The 60 km h−1 driving speed was identified as the cleaner mode of driving as was LPG fuel. The Ozone Formation Potential (OFP) of the VOCs was also calculated by using the incremental reactivity scale. Priority VOCs leading to ozone formation were identified according to the three incremental reactivity scales: MIR, MOIR and EBIR. PROMETHEE was applied to assess the most preferred scale of reactivity for predicting ozone formation potential under different scenarios. The results enhance the understanding of the environmental value of using LPG to power passenger cars.

Accountability 30 years on: Insurance Contracts Act Reform

The Insurance Contracts Act 1984 (Cth) since inception has effected major reform to the law in this field. One of Australia’s most frequently cited pieces of legislation, it has had a major impact upon the law and practice of insurance. Given the importance of insurance to domestic and commercial activity and its pivotal position as a mechanism to manage exposure to risk, it is not surprising that this legislation has been the subject of extensive analysis in the courts and in legal literature. Furthermore the Act has, arising out of a 2009 review, been significantly amended by the Insurance Contracts Amendment Act 2013 (Cth). The principal amendments introduced are: two-fold: the Insurance Contracts Act 1984 (Cth) has been amended so that a failure to comply with the duty of good faith is now a breach of the Act; and disclosure and misrepresentation provisions under the Insurance Contracts Act 1984 (Cth) are amended and clarified.

A growing good faith in contracts

The Supreme Court of Canada's ruling in Bhasin v Hrynew represents a significant step forward in harmonising the multiple strands of debate surrounding the existence of a good faith provision in common law contracting. Although a general principle of good faith (derived from Roman Law) is recognized by most civil law systems and a growing number of common law countries have embraced statutory provisions towards this end, Bhasin v Hrynew is argued to be a critical advance in catalysing uniform acceptance of good faith as a fundamental principle essential to support an increasingly integrated global commercial environment.

A lifespan perspective on psychological contracts and their relations with organizational commitment

The current study investigated the influence of age-related constructs on the psychological contract and its relationships with continuance and normative commitment. It was proposed that as people age, their future time perspective (FTP) decreases. Consequently, it was expected that contract fulfilment would be positively related to continuance commitment for workers with short FTP, while it would be positively related to normative commitment for workers with long FTP. Conversely, it was argued that, with age, workers’ perceived work-related expertise increases, resulting in stronger reactions to obligation fulfilment on normative commitment. A study among 334 employees showed that FTP and work-related expertise indeed moderated the relationships between contract fulfilment and organizational commitment. The results showed that the influence of age on the relations between contract fulfilment with outcomes is dependent upon FTP and occupational expertise. The study shows the value of a lifespan perspective on psychological contracts and their relations with organizational commitment.

Land Contracts in Queensland [4th Edition]

"The authors analyse the substance of the transaction through the medium of the latest standard REIQ Residential, Commercial and Community Titles contracts, and draw on a comprehensive range of court decisions relating to the area. There are chapters covering contract formation including the role of the real estate agent, the disclosure regime for sellers and agents, subject matter, the inclusion of special conditions, risk, completion both through the paper based medium and electronic conveyancing and stamp duty and GST implications."--Publisher website