International Construction Law Review
THE NOTICE OF CLAIM UNDER SUB-CLAUSE 20.1 IN A FIDIC CONTRACT GOVERNED BY THE ROMANIAN LAW
ALINA BILAN, LLM
BAZIL OGLINDĂ, PHD
The study analyses sub-clause 20.1 of FIDIC contracts under Romanian law, looking into: the validity of the notice to claim, the legal status (prescription vs forfeiture) of the 28-day period during which notifications may be submitted, the commencement of this term and whether the efficacy of a notice depends on certain actions taken by the employer.
While in common law most practitioners consider that sub-clause 20.1 is a condition precedent time bar clause and that the untimely notice represents a breach of contract, in Romanian law the interpretation of this clause is more flexible considering the principle of good faith and the obligations it entails.
I. INTRODUCTION
In FIDIC contract forms (Red Book, Yellow Book and Gold Book) practitioners encounter a procedure by which the contractor who considers itself entitled to an extension of the time for completion or to additional payments to the initially contracted elements must first send the engineer a notice. The notice of the contractor should describe the event or circumstance that entitles him to such a claim and should be sent no later than 28 days after the contractor became aware or should have become aware of said event or circumstance.
Sub-clause 20.1 of the FIDIC contract form outlines the conditions under which the Notice of Claim should be transmitted and the consequences of failing to comply with this obligation:
“If the Contractor considers himself to be entitled to an extension of the Time for Completion and/or any additional payments, under any Clause of these Conditions or otherwise in connection with the Contract, the Contractor shall give notice to the Engineer, describing the event or circumstance giving rise to the claim. The notice shall be given as soon as possible, and not later than 28 days after the Contractor became aware or should have become aware, of the event or circumstance.
If the Contractor fails to give notice of a claim within such period of 28 days, the Time for Completion shall not be extended, the Contractor shall not be entitled to additional payment, and the Employer shall be discharged from all liability in connection with the claim.”
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