Glossary

ADR (alternative dispute resolution): a term used for any type of dispute resolution procedure other than litigation through the court system. Examples include arbitration, adjudication and mediation.

Assignee: a party to whom the benefit of a contract is assigned

Assignment: the transfer of the benefit of a contract to a new beneficiary In the absence of any restriction in the contract, the benefit may be assigned by agreement between the current beneficiary and the incoming beneficiary without reference to the party performing the obligations. In order for a legal assignment to be fully effective, notice in writing must be given to the party performing the obligations under the contract. Only the benefit of a contract can be assigned in this way, not the burden; the transfer of the burden of a contract is only possible through novation.

Assignor: a party who assigns the benefit of their contract.

Beneficiary: the party having the benefit of a particular contract. The term is often used to mean the party having the benefit of a collateral warranty.

Benefit: in the context of a contract, the benefit is the right to require performance by the other party. So for an architect, the benefit is essentially the right to enforce the client’s payment obligations; for the client, the benefit is the right to require the architect to provide the agreed services.

Building contract: the legal agreement between the employer and the contractor setting out their respective rights and obligations. To avoid confusion, it is good practice to refer to this document as the ‘building contract’ or ‘main contract’, rather than simply ‘the contract’.

Burden: in the context of a contract, the burden includes all of the obligations that must be performed for the other party; for example, the client’s obligation to pay the architect’s fees, or the architect’s obligation to carry out the services.

Claimant: in a civil legal action, such as an action to recover damages for breach of contract or negligence, the claimant is the party making the claim and asking the court to make an award in their favour.

Condition precedent: in a contract, a condition precedent is something which must be done by a party in order for another entitlement to be activated. So, for example, a bespoke professional appointment may say that it is a condition precedent to payment that collateral warranties are provided when requested.

Contemporaneous: happening at the same time as something else. For example, it is good practice for an architect to make a contemporaneous note of any client meetings.

Contract: an agreement recognised by law as creating rights and imposing obligations which are legally binding on the parties who made it.

Contractor: the builder carrying out the construction works on a project for the employer. It is good practice to refer in contracts and correspondence to the ‘main contractor’ to avoid confusion with subcontractors, for example.

Contractor’s proposals: a document prepared by the contractor and forming part of the building contract, showing how the contractor will carry out and complete the works in accordance with the employer’s requirements.

Defendant: in a civil legal action, the defendant is the party against whom the action (or ‘claim’) is brought by the claimant.

Employer’s requirements: a document produced on behalf of the employer by its design consultants and forming part of the building contract, describing the project that the employer wants the contractor to carry out and complete.

JCT: the Joint Contracts Tribunal Limited, whose members include bodies representing various interest groups within the construction industry – developers, local authorities, contractors, consultants and specialist contractors. Since 1931 the JCT has been producing standard forms of building contract, guidance notes and other documents for use in the construction industry.

LADs (liquidated and ascertained damages): these are damages for breach of contract, the level of which has been agreed in advance by the parties. The most common use of LADs is in relation to delay damages within building contracts.

Novation: the legal mechanism enabling one of the parties to a contract to transfer both the benefit and the burden of the contract to an incoming party. Novation often occurs in the context of a design and build project, where a client wishes to transfer the rights and obligations under their appointments with the design team to an incoming design and build contractor.

Privity of contract: the legal doctrine which states that only the parties to a contract are bound by its terms. This doctrine is subject to certain exceptions, for example the rights to which third parties may be entitled by virtue of the Contracts (Rights of Third Parties) Act 1999.

Professional appointment: the contract between a client and a professional consultant. This may be referred to as simply an ‘appointment’.

SBC: shorthand for the JCT’s Standard Building Contract, either With Quantities (rarely used in the UK) or Without Quantities (XQ). A JCT SBC may be used when a ‘traditional’ procurement route has been chosen, as opposed to design and build, for example.

Set-off: a defendant in a civil action may have a cross-claim against the claimant which can be set off against the amount claimed. The defendant may use the cross-claim in this way to defend themselves against the claimant’s action and reduce, or even cancel out altogether, the claim.

Third party: in the context of a particular contract, a third party is any legal entity, person or business that is not a party to that contract.

Timeous: a contract may require a party to perform a particular obligation ‘timeously’, meaning ‘in good time’ or ‘sufficiently early’. Contractual notices are often required to be given timeously.

Tort: a non-contractual civil wrong recognised by law as causing a harm for which the victim of the tort is entitled to seek a legal remedy. The most widely recognised tort is negligence.

..................Content has been hidden....................

You can't read the all page of ebook, please click here login for view all page.
Reset
3.237.51.235