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Heritage property - what's included in the contract?

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Posted by Stuart Thwaites on 28 April 2015

Stuart Thwaites - Building and Construction Lawyer
Stuart Thwaites Legal Director

It is worth reminding contractors in the heritage sector of some old fashioned legal principles. These will apply where the contractor is working under an unsophisticated contract, for clients such as residential owners.

Where the contract is a sophisticated detailed contract such as a JCT standard form of contract, with detailed bills of quantities and specifications, then the contract will generally tell you precisely what is and is not included in the contract.

But under simple contracts it is absolutely essential for contractors to understand that work that is indispensably necessary to carry out the job and to achieve the specified finished result is included in the scope of the works and the contract price, whether fully specified or not.

Also, where work is undertaken at a given price the building owner will not, by consenting to, or even requesting, an alteration from the original plan, make himself liable to pay extra for it, unless he is told or must necessarily have been aware that the alteration will increase the expense. Even then the owner will not be liable to pay extra where the variation is agreed to at the request of the contractor by way of a concession, perhaps to help the contractor out. In such circumstances no promise to pay extra for the varied work can be implied.

So be careful if you enter into a contract to “make good say a thatched roof". If the state of the timber frame turns out (because it was not inspected beforehand) to be capable of withstanding the planned works, and liable to fail at any moment, you are likely to have to undertake considerably more work than you tendered for, and you are not necessarily going to get paid for it.

The basic rule is “an obligation to do described work for a price imports an obligation to do any essential and inevitable ancillary work or processes, whether described or not which are needed to produce the prescribed work”. A patching job which you thought would cost £4,000 could end up costing £14,000. You are not necessarily going to get paid for it.

If there is uncertainty about the condition of the fabric you will be working on or the conditions in which you will be working, then include provisional sums. In this way you can omit the provisional sum and substitute the actual value of the work done, in your final account or invoice.

An old case which illustrates the “inclusive price” principle is Williams v Fitzmaurice 1858 3H&N 844.

A joiner agreed to build a house. He prepared a specification that included timber to be used in the house. He specified the floor joists but did not mention the flooring itself. He agreed a price of £1,100.

The joiner refused to fix all the floorboards until paid extra, saying that they were not part of his contract.

The court decided that it was an error that no mention was made of the flooring. The contract was to provide a complete house. It was unreasonable to read it as if it excluded all work not specifically mentioned.

So, on simple contracts make clear what is not included, otherwise it may well be included in your price.

Be aware that when you agree to do a job it includes all essential works – even if you had not foreseen them when you quoted for the job.

About the author

Stuart Thwaites

Legal Director

Stuart specialises in construction and engineering work in relation to resolving disputes and in the drafting and negotiation of contractual documentation.

Stuart Thwaites

Stuart specialises in construction and engineering work in relation to resolving disputes and in the drafting and negotiation of contractual documentation.

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