International Construction Law Review
THE EFFECT OF CONTRACT CLAUSES ON CLAIMS FOR DELAY AND DISRUPTION*
JOHN DORTER
BA, LLB, CPA, FCI Arb, FIAMA Partner, Allens Arthur Robinson, Sydney
“The combination of causes of phenomena is beyond the grasp of the human intellect. But the impulse to seek causes is innate in the soul of man. And the human intellect, with no inkling of the immense variety and complexity of circumstances conditioning a phenomenon, any one of which may be separately conceived of as the cause of it, snatches at the first and most easily understood approximation, and says here is the cause.”1
1. SYNOPSIS
Two powerful currents run through the Sargasso Sea of time-based money claims, viz:
- (a) code v. conduct; and
- (b) limitation v. exclusion.
A tension emerges. Clarity and certainty call for a contractual code. Unfortunately the flexibility and frailties of human nature are such that conduct is in vogue—at least in some countries.
Adversarial jurisprudence and cultures like the plea in bar. However, equity’s softening of black letter law is such that many courts do not like Draconian and total exclusions. Per contra
, freedom of contract should enable the parties (and especially commercial captains of the construction industry) to mould their risk allocation according to informed consent limitations of liability.
2. RATIONALE
It may be refreshing to remind ourselves that the quintessence is probably compensation for breach of contract.
Rarely are captains of commerce in the construction industry rash enough to make time of the essence in their construction contracts. Nonetheless, it
* This is an updated version of a paper first given at the Global Construction Super Conference, held in London in November 2001.
1 War and Peace
, Pt XIII, ch. I.
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The Effect of Contract Clauses on Claims for Delay and Disruption
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