Common Law Rights and Remedies

Author:Mr Tim Kinney and Niav O' Higgins
Profession:Arthur Cox
 
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The general rules governing the implication of terms by the courts, which apply to general contracts, also apply in the same way to construction contracts. A number of implied terms specific to construction contracts also exist, many of which relate to design and quality and are closely aligned with the law of sale of goods. Much of the relevant case law on implied terms comes from England, however it remains applicable to Irish law. However, it is important to bear in mind that the existence or otherwise of specific implied terms within a particular contract will be judged on a case by case basis.

The common law has developed a number of principles by which a term may be implied into a construction contract:

the term is required to make the contract work - the "business efficacy" test the term is implied by law, such as by the Sale of Goods Acts the term is a specific custom or practice the term can be imputed from the intention of the parties In order to imply a term for business efficacy, the court must be satisfied that the term is:

reasonable and equitable; is necessary to give business efficacy to the contract, i.e. no term shall be implied if the contract is effective without it; is so obvious that 'it goes without saying'; is capable of clear expression; and does not contradict any express term of the contract. Importantly, courts have consistently emphasised that they will only imply a term for business efficacy if it is necessary to make the contract work. Where there is a comprehensive written contract, such as a standard form of building contract, there may be very little scope for the implication of any terms. if the parties have expressly dealt with a matter in the contract, no term dealing with the same matter can be implied. But where there is no written contract, or where the terms of a written contract do not deal with certain matters, terms may be implied. Some of the more usual implied terms held to apply to construction contracts are described below:

Employer implied terms

Cooperation

An employer impliedly agrees to do all that is necessary on its part to bring about completion of the contract. For example, it must give possession of the site within a reasonable time. An employer may be obliged to obtain planning permission or other statutory consents in sufficient time to enable the contractor to proceed without delay. If an architect is to supervise the work, an employer must appoint an architect. An...

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