PROFESSIONAL

PRACTICE
CONTRACT

PROF.AR.CHEITALI SHROFF
Clerk of work – its duties & powers

The eye and the voice of architect is correct position of the clerk of works on site who utilizes
rich experience of the building work for the benefit of the client and thus brings credit to the
architect who is usually an approving authority for his appointment or at times appoints him on
behalf of owner but his salary or remuneration is being paid by the owner.

He is being paid by owner and such the owner will usually consider him as his employee and will
go on giving the necessary instructions which he is not bound to follow. This should be made
clear to the owner in the beginning.
Clerk of work – its duties & powers

He must be furnished with one copy of the plan, contract copy, specifications, etc,. and all instruction to him must
be given in writing by the architect who in turn expects a written reply from him as and when necessary.

Duties: 1. To act under the order of architect

2. To inspect works in the absence of the architect.

3. To inspect and check materials

4. To check and measure time.

Powers: To give notice to contractor about non-approval of any work or materials and such work to be suspended
or use of such materials to be discontinued until final decision of the architect is obtained .
CONTRACT

“The contract is an agreement enforceable at law between two or more parties made by free
consent of parties competent to contract for a lawful consideration and lawful object.”

BUILDING CONTRACT: “A building or engineering contract may be defined as an agreement

under which a person undertake for reward to carry out for another person (owner) works of a
building or civil engineering character.”
CONTRACT DOCUMENT

Definitional condition no.1 (1) shows the encompassment of contract document as agreement ,
the generalcondition of the contract specifications, bill of quantities including all modifications
thereof incorporated inthe document before the execution as also contract drawings prepared
by the architect from time to time.

Condition no.2 pertains to contract document will have its own importance in case of conflict.
Prior toentering into contract a number of documents like tender, invitation to tender,
correspondence acceptanceletter, etc. may have gone on record. Thus condition no.2 declares
not all documents as contract documents but only:
CONTRACT DOCUMENT

1. Articles of agreement
2. General condition of contract
3. Bill of quantities
4. Specifications

5. Other related papers pertaining to the work like drawing issued from time to time. This
condition itself enlarges the scope of contract document to include contract drawings. Provided
that nothing contain in the said specification , descriptive schedules or other document shall
impose any obligationbeyond those imposed by the contract bills, the articles agreement and
these conditions.
CONTRACT - CIRCUMSTANCES OF IMPOSSIBLE TO PERFORM

(i) After the contract has been assigned, plot is acquired for a public purpose;

e.g. The owner and contractor had contract to make residential building on plot. The plot already had
public garden on it, then contractor cannot construct residential building on it.

(ii) Plans are revoked by the authority as the plot is affected by reservation for a public purpose in
development plan.

e.g. The owner and contractor had contract to make commercial building on plot. The plan are

revoked by the authority as the plot will have road in it in development plan.
CONTRACT - EXTENSION OF TIME
Condition No. 40 deals with the extension of time and condition No.41 deals with damages for
noncompletionknown as “Liquidated and ascertained damages”.

Condition No.40 can be considered as mitigating circumstances which can reduce or remove the impact of
conditionNo.41.

If the contractor finds that he will not able to complete the work in time or within the extended time limit, it is
compulsory for himto give “forthwith “a notice as to the cause of delay and apply for extension of time.
CONTRACT - EXTENSION OF TIME
The cause of delay has to fall within any one or more of the ten compartments given in condition No. 40

1. Force Majeure

2. Exceptionally inclement weather

3. Loss or damage due to fire, storm, tempest, etc, as given in insurance clause.

4. BY reason of civil commotion, local combination of workmen, strike or lockouts thus affecting the supplyof
labour, materials or goods needed for work.

5. By reason of architect’s instructions in general or instructions pertaining to variations or instructions as to

postponement of work.
Determination of contract by the owner:

The position of a contractor is merely that of a licensee in spite of the fact that he is in possession of

the complete site of the owner. The owner as such, has the right to revoke the license at any time
legally.

Anillegal act by the owner in revoking the license of the contractor to enter on the site may result in
damages.

The contractor is debarred from entering upon the site as soon as the contract is determined by the
ownerwhich automatically results in the revocation of the license.

The owner can determine the contract on the three grounds, namely default, bankruptcy,
offencesand other illegal acts.
Determination of contract by the Contractor:

The contractor can determine contract on the following grounds:

(1) Amount of interim certificate is not received within the period mentioned in the appendix
and continuous default for seven days after receipt of notice will be determined if payment is
not made within seven days from the receipt thereof.

(2) If the owner interfere with or obstruct the issue of any certificate due under the contract.
Determination of contract by the Contractor:

(3) Carrying out the whole or substantially the whole of incomplete work is suspended for continuous

period of length by reasons of:

(a) Loss or damage occasioned by anyone ormore of the contingencies referred to in the clause of insurance against fire
etc.,

(c) Civil commotion or Delay by the architect in issuing necessary plans and instructions, or delay on part of agencies
employed by the owner for works outside the framework of contract, or Opening of the work covered up for inspection,
works and materials used being as per the contract document .

Then the contractor may there upon by notice by registered post or recorded delivery to the owner or

architect forth to determine the employment of the contractor under the contract, provided that such notice shall not
be given unreasonably.
Determination of contract- Breach
Breach of contract

When a party repudiates or fails to perform one or more of the obligation imposed upon him by
the contract, breach of contract occurs, which gives immediate cause of action and a right to
damages as compensation for loss flowing from the breach.

There are two parties to the contract to the contract, namely the owner and the contractor and
assuch any one of them may fail to fulfill his obligation under the contract, resulting in the
breach of thecontract, leading to its determination.
CONTRACT - EXTENSION OF TIME
6. Not receiving in due time necessary instructions, drawing details or level in spite of written
application to the effect.

7. Delay on the part of nominated sub- contractor or nominated supplier.

8. Delay on the part of agencies appointed and employed by the owner.

9. By reason of opening up inspection of any work covered up or of testing of any work or materials or
goods to ascertain whether the same are as per contract or otherwise.

10 Unable to secure labour , goods, and materials for works for reasons beyond the contractor’s
control andwhich he could not have foreseen at the time of execution of the contract.
CONTRACT - DISCHARGED

There are four ways in which a contract can be discharged:

(1) By Agreement.
(2) By performance.
(3) By being excused by law from performing it.
(4) By breach.
CONTRACT - DISCHARGED

By Agreement
A Contract can be terminated or discharged by mutual express or implied agreement between
the
parties in any of the following ways -
A) By Novation
B) By Accord and Satisfaction
C) By Remission and Waiver
D). By Rescission.
CONTRACT - DISCHARGED

By performance

If both parties to the contract have performed what they have agreed to do, the contract is

discharged. Performance of obligation by parties to the contract puts an end to the contract.

e.g. Two parties A & B Make a contract to build a fly-over in a City. A is the municipal authority of the
city & Bis a construction company.

B builds the fly-over in the prescribed manner and A provides the consideration toB.

Here both parties performed their obligations & rights, what they promised to do in the contract.

Thus the contract is come to an end by the performance.

CONTRACT - DISCHARGED

By being excused by law from performing it

A contract is discharged or terminated by the operation of law, in the following cases –
(i) By insolvency or bankruptcy.
(ii) By merger.
CONTRACT - DISCHARGED

By Breach

When a party to a contract has refused to perform, or disable himself from performing his
promise inits entirety, the promise may put an end to the contract. In other words – Breach of
contract occurs where a

party refuses to perform his part of the promise.

(i) Actual breach of contract.

(ii) Anticipatory breach of contract.

Thank you..

PROF.AR.CHEITALI SHROFF