English Contract Law and the Great War: the development of a doctrine of frustration

This article examines changes that occurred in English contract law as a result of the demands made upon Great Britain by the Great War. The focus is on the development of the doctrine of frustration in English law. In particular, it is argued that the development of the doctrine of frustration was fashioned from internal legal forces in the form of both existing case law and emergency legislation in response to the demands placed upon the nation by a global war. The way in which the doctrine of frustration developed during the Great War arose as a direct result of the way in which Britain chose to meet the logistical demands created by the way it fought the Great War.

The impact of contract duration on the cost of cash retention

Cash retention is a common means of protecting an employer from a contractor's insolvency as well as ensuring that contractors finish the work that they start. Similarly, contractors withhold part of payments due to their sub-contractors. Larger contracts tend to be subjected to smaller rates of retention. By calculating the cost of retention as an amount per year of a contract, it is shown that retention is far more expensive for firms whose work consists of short contracts. The extra cost is multiplied when the final payment is delayed, as it often is for those whose work takes place at the beginning of a project. This may explain why it is that main contractors are a lot less interested than sub-contractors in alternatives to cash retention, such as retention bonds

The engineer under FDIC's conditions of contract for construction

FIDIC has over the years produced standard forms of contracts for the international procurement of projects. A source of continuing criticism of its Red Book concerns the duality in the traditional role of the engineer as the employer's agent and as an independent third party holding the balance fairly between the employer and the contractor. In response to this and other criticisms FIDIC produced a replacement for it in 1999. The role of the engineer under the new Red Book is critically examined in the light of relevant case law, expert commentaries and feedback from two multidisciplinary workshops with international participation. The examination identified three major changes: (1) a duty to act impartially has been replaced by a duty to make fair determination of certain matters; (2) it is open to parties to allow greater control of the engineer by the employer by stating in the appropriate part of the contract powers the engineer must not exercise without the employer's approval; (3) there is provision for a Dispute Adjudication Board (DAB) to which disputes may be referred. Although the duality has not been eliminated completely, the contract is structured flexibly enough to support those who wish to contract on the basis of the engineer acting solely as the agent of the employer.

The Mystery of Privity: Grand Trunk Railway Company of Canada v Robinson (1915)

This article examines a little known decision of the Judicial Committee of the Privy Council: Grand Trunk Railway Company of Canada v Robinson (1915). The examination is historical and it provides a different insight into the understanding of privity of contract, a doctrine central to contract law. The examination reveals a process of trans-Atlantic legal migration in which English law was applied to resolve an Ontario case. The nature of the resolution is surprising because it appears to conflict with the better known decision of the House of Lords, Dunlop Pneumatic Tyre Company, Limited v Selfridge and Company, Limited, which a similarly constituted panel delivered in the same week. This article argues that there was a greater malleability in the resolution of cases concerned with privity than was thought to have existed. It is also argued that the power of Canadian railway capitalism is a significant factor in understanding the legal resolution of the case. Finally, it the article considers the use of English and American precedents relevant to the case. The application of English precedents to the case led to a resolution not entirely befitting Canadian conditions.

The standardization of contracts for construction

Contracts are put to a wide variety of uses. Those who draft construction contracts in the UK rarely consider all of the potential uses and therefore may produce documents that are less than ideal. The various uses are considered in their theoretical background before turning to the practical difficulties often encountered in trying to fulfil such diverse aims. The question of standardisation is examined within this context. Existing standard forms of contract in the UK are found to do little to overcome these difficulties, and this encourages either a significant level of amendment to the standards or experienced clients to draft their own forms. The solution is an approach to contract drafting which is designed to offer a compromise; better standard forms, based on the lessons learned from the drafting of non-standard forms and a pooling of experience, including that of lawyers, in the drafting process. Although this paper is based upon the experience of the UK, these conclusions are relevant for contract-drafting practice in general.

Construction contract policy: do we mean what we say?

Recent developments in contracting practice in the UK have built upon recommendations contained in highprofile reports, such as those by Latham and Egan. However, the New Engineering Contract (NEC), endorsed by Latham, is based upon principles of contract drafting that seem open to question. Any contract operates in the context of its legislative environment and current working practices. This report identifies eight contentious hypotheses in the literature on construction contracts and tests their validity in a sample survey that attracted 190 responses. The survey shows, among other things, that while partnership is a positive and useful idea, authoritative contract management is considered more effective and that “win-win” contracts, while desirable, are basically impractical. Further, precision and fairness in contracts are not easy to achieve simultaneously. While participants should know what is in their contracts, they should not routinely resort to legal action; and standard-form contracts should not seek to be universally applicable. Fundamental changes to drafting policy should be undertaken within the context of current legal contract doctrine and with a sensitivity to the way that contracts are used in contemporary practice. Attitudes to construction contracting may seem to be changing on the surface, but detailed analysis of what lies behind apparent agreement on new ways of working reveals that attitudes are changing much more slowly than they appear to be.

Commercial reviews in the tender process of contractors

Purpose – The purpose of this paper is to show the extent to which clients amend standard form contracts in practice, the locus of the amendments, and how contractors respond to the amendments when putting together a bid. Design/methodology/approach – Four live observational case studies were carried out in two of the top 20 UK construction firms. The whole process used to review the proposed terms and conditions of the contract was shadowed using participant observation, interview and documentary analysis. Findings – All four cases showed strong evidence of amendments relating mostly to payment and contractual aspects: 83 amendments in Case Study 1 (CS1), 80 in CS2, 15 in CS3 and 29 in CS4. This comprised clauses that were modified (37 per cent), substituted (23 per cent), deleted (7 per cent) and new additions (33 per cent). Risks inherent in the amendments were mostly addressed through contractual rather than price mechanisms, to reflect commercial imperatives. “Qualifications” and “clarifications” were included in the tender submissions for post-tender negotiations. Thus, the amendments did not necessarily influence price. There was no evidence of a “standard-form contract“ being used as such, although clients may draw on published “standard-form contracts” to derive the forms of contract actually used in practice. Practical implications – Contractors should pay attention to clauses relating to contractual and financial aspects when reviewing tender documents. Clients should draft equitable payment and contractual terms and conditions to reduce risk of dispute. Indeed, it is prudent for clients not to pass on inestimable risks. Originality/value – A better understanding of the extent and locus of amendments in standard form contracts, and how contractors respond, is provided.

Role of knowledge in managing construction change

Purpose-Unplanned changes in construction projects are common and lead to disruptive effects such as project delays, cost overruns and quality deviations. Rework due to unplanned changes can cost 10-15 per cent of contract value. By managing these changes more effectively, these disruptive effects can be minimised. Previous research has approached this problem from an information-processing view. In this knowledge age, the purpose of this paper is to argue that effective change management can be brought about by better understanding the significant role of knowledge during change situations. Design/methodology/approach - Within this knowledge-based context, the question of how construction project teams manage knowledge during unplanned change in the construction phase within collaborative team settings is investigated through a selected case study sample within the UK construction industry. Findings- Case study findings conclude that different forms of knowledge are created and shared between project team members during change events which is very much socially constructed and centred on tacit knowledge and experience of project personnel. Originality/value- Building on the case study findings the paper finally offers a model that represents the role of knowledge during managing project change.

The future of the tenanted sector in British agriculture: a review of the proposals for change

The impending decline of the tenanted sector in British agriculture has been forecast for many years. Much debate has surrounded the issues and ensuing legislation has repeatedly attempted to stave-off what some view as the inevitable demise of tenant farmers. Following a flurry of activity after the Northfield Report of 1979 and culminating in the Agricultural Holdings Acts of 1984 and 1986, the debate has recently been fuelled by a strongly pro-market lobby. With the public support of successive Ministers of Agriculture, this lobby has advocated a rejection of the former state intervention in the landlord/tenant relationship in favour of freedom of contract, an option that now appears increasingly likely to reach the statute books. This paper reviews the significant elements of the debate, attempting to explain the principal reasons for the failure of earlier legislation and the primary shortcomings of the current emphasis of consultation. The paper concludes that while there are some significant legislative disincentives to letting land, the freeing-up of contracts in isolation from other, non-contractual issues, will not result in the increase in lettings purportedly desired by the Ministers and their acolytes.

Commentary on an example of a tenancy agreement for an agricultural holding

This paper sets out an example of a standard agricultural tenancy, being one creating a tenancy from year to year and consequently covered by the agricultural holdings legislation. A facing-page commentary gives a clause-by-clause analysis of the agreement, the implications of each provision being discussed in the light of the law of contract, agricultural holdings legislation and, where appropriate, subsequent caselaw.

Contractual restrictions on lawful use of information: sole-source databases protected by the back door?

This article is concerned with the risks associated with the monopolisation of information that is available from a single source only. Although there is a longstanding consensus that sole-source databases should not receive protection under the EU Database Directive, and there are legislative provisions to ensure that lawful users have access to a database’s contents, Ryanair v PR Aviation challenges this assumption by affirming that the use of non-protected databases can be restricted by contract. Owners of non-protected databases can contractually exclude lawful users from taking the benefit of statutorily permitted uses, because such databases are not covered from the legislation that declares this kind of contract null and void. We argue that this judgment is not consistent with the legislative history and can have a profound impact on the functioning of the digital single market, where new information services, such as meta-search engines or price-comparison websites, base their operation on the systematic extraction and re-utilisation of materials available from online sources. This is an issue that the Commission should address in a forthcoming evaluation of the Database Directive.

Predicating from an early age: edusemiotics and the potential of children’s preconceptions

This paper aims to explain how semiotics and constructivism can collaborate in an educational epistemology by developing a joint approach to prescientific conceptions. Empirical data and findings of constructivist research are interpreted in the light of Peirce’s semiotics. Peirce’s semiotics is an anti-psychologistic logic (CP 2.252; CP 4.551; W 8:15; Pietarinen in Signs of logic, Springer, Dordrecht, 2006; Stjernfelt in Diagrammatology. An investigation on the borderlines of phenomenology, ontology and semiotics, Springer, Dordrecht, 2007) and relational logic. Constructivism was traditionally developed within psychology and sociology and, therefore, some incompatibilities can be expected between these two schools. While acknowledging the differences, we explain that constructivism and semiotics share the assumption of realism that knowledge can only be developed upon knowledge and, therefore, an epistemological collaboration is possible. The semiotic analysis performed confirms the constructivist results and provides a further insight into the teacher-student relation. Like the constructivist approach, Peirce’s doctrine of agapism infers that the personal dimension of teaching must not be ignored. Thus, we argue for the importance of genuine sympathy in teaching attitudes. More broadly, the article also contributes to the development of postmodern humanities. At the end of the modern age, the humanities are passing through a critical period of transformation. There is a growing interest in semiotics and semiotic philosophy in many areas of the humanities. Such a case, on which we draw, is the development of a theoretical semiotic approach to education, namely edusemiotics (Stables and Semetsky, Pedagogy and edusemiotics: theoretical challenge/practical opportunities, Sense Publishers, Rotterdam, 2015).

Taylor v Caldwell (1863)

A Landmark Case is one which stands out from other less remarkable cases. Landmark status is generally accorded because the case marks the beginning or the end of a course of legal development. Taylor v Caldwell is regarded as a landmark case because it marks the beginning of a legal development: the introduction of the doctrine of frustration into English contract law. This chapter explores the legal and historical background to the case to ascertain if it is a genuine landmark. A closer scrutiny reveals that while the legal significance of the case is exaggerated, the historical significance of the cases reveals an unknown irony: the case is a suitable landmark to the frustration of human endeavours. While the existence of the Surrey Music Hall was brief, it brought insanity, imprisonment, bankruptcy and death to its creators.