Construction contract policy: do we mean what we say?
Hughes, W. and Maeda, Y. (2002) Construction contract policy: do we mean what we say? RICS Research Papers, 4 (12). pp. 1-25.
Recent developments in contracting practice in the UK have built upon recommendations contained in highprofile reports, such as those by Latham and Egan. However, the New Engineering Contract (NEC), endorsed by Latham, is based upon principles of contract drafting that seem open to question. Any contract operates in the context of its legislative environment and current working practices. This report identifies eight contentious hypotheses in the literature on construction contracts and tests their validity in a sample survey that attracted 190 responses. The survey shows, among other things, that while partnership is a positive and useful idea, authoritative contract management is considered more effective and that “win-win” contracts, while desirable, are basically impractical. Further, precision and fairness in contracts are not easy to achieve simultaneously. While participants should know what is in their contracts, they should not routinely resort to legal action; and standard-form contracts should not seek to be universally applicable. Fundamental changes to drafting policy should be undertaken within the context of current legal contract doctrine and with a sensitivity to the way that contracts are used in contemporary practice. Attitudes to construction contracting may seem to be changing on the surface, but detailed analysis of what lies behind apparent agreement on new ways of working reveals that attitudes are changing much more slowly than they appear to be.
• Ayres, I. and Gertner, R. (1992) Strategic contractual inefficiency and the optimal choice of legal rules. Yale Law Journal, 101(4), 729-774. • Banwell, H. (1964) The placing and management of contracts for building and civil engineering works. London: Her Majesty's Stationery Office. • Barnes, M. (1991) The New Engineering Contract. International Construction Law Review, 8(2), 247-255. • Barnes, M. (1996) The New Engineering Contract: an update. International Construction Law Review, 13(1), 89-96. • Barrick, A. (1995) Customer service. Building, 28 July, 26-30. • Barrie, G. (1995) Firms diverge on 'fair contracts' law. Building, 11 August, 12. • Beale, H. and Dugdale, A. (1975) Contracts between businessmen: planning and the use of contractual remedies. British Journal of Law and Society, 2, 45-60. • Bennett, J. (1992) International construction project management. London: Butterworth-Heinemann. • Bick, P. (1997) Statutory reform of aspects of construction law in Australia. Construction Management and Economics, 15(6), 549-558. • Bourn, J. (2001) Modernizing contruction. 22 December 2000, London: National Audit Office. • Bowdery, M. (1997) New age contract In: Uff, J. (Ed) Contemporary issues in construction law 2 - construction contract reform: A plea for sanity London: Centre for Construction Law and Management. pp. 13-27. • Broome, J. C. (1995) A comparison of the clarity of traditional construction contracts and of the New Engineering Contract. In: Thorpe, A. (Ed.), 11th Annual ARCOM Conference. University of York, September. ARCOM, • Cabinet Office Efficiency Unit (1995) Construction procurement by government: an efficiency office scrutiny (The Levene Report). London: The Stationery Office. • Cole, G. A. (1996) Management: theory and practice. 5th. London: Letts Educational. • Cooter, R. and Ulten, T. (1988) Law and economics. London: Scott, Foreman and Co. • Cornes, D. L. (1996) The second edition of the New Engineering Contract. International Construction Law Review, 13(1), 97-119. • Cox, A. and Thompson, I. (1996) Is the NEC going to succeed? An examination of the Engineering and Construction Contract. International Construction Law Review, 13, 327-337. • Cox, A. and Townsend, M. (1997) Latham as half-way house: a relational competence approach to better practice in construction procurement. Engineering, Construction and Architectural Management, 4(2), 143-158. • Cox, A. W. and Townsend, M. (1998) Strategic procurement in construction. London: Thomas Telford. • Egan, J. (1998) Rethinking construction : the report of the Construction Task Force to the Deputy Prime Minister, John Prescott, on the scope for improving the quality and efficiency of UK construction. London: Department of the Environment, Transport and the Regions Construction Task Force. • Eggleston, B. (1996) The New Engineering Contract: A Commentary. Oxford: Blackwell Science. • Estates Gazette (1995) The Latham Report and its effects. Estate Gazette, 4 March, 316-318. • Gaitskell, R. (1995) Is Latham correct? A survey of construction industry opinion In: Uff, J. (Ed) Construction Law Yearbook Chichester: Chancery Law Publishing Ltd. pp. 31-39. • Gaitskell, R. (1997) Is Latham correct? A survey of construction opinion In: Uff, J. (Ed) Contemporary Issues in Construction Law 2 - Construction Contract Law Reform: A Plea for Sanity London: Centre for Construction Law and Management. • Gray, C. and Flanagan, R. (1989) The changing role of specialist and trade contractors. Ascot: Chartered Institute of Building. • Heal, A. J. (1999) Construction partnering: good faith in theory and practice. Construction Law Journal, 15, 165-241. • Helps, D. (1997) Why partnering is not a duty. Building, 28 November, 37. • Hughes, W. and Greenwood, D. (1996) The standardization of contracts for construction. International Construction Law Review, 13(2), 196-206. • Hughes, W. P., Hillebrandt, P. and Murdoch, J. R. (1998) Financial protection in the UK building industry: bonds, retentions and guarantees. London: Spon. • Jenkins, J. (1995) The Latham report trust fund proposals. Construction Law Journal, 11, 262-273. • Klein, R. (1995) Bill of fair play. Building, 30 June, 30-31. • Kunishima, M. and Shoji, M. (1995) The principles of construction management. Tokyo: Sankaido Publishing. • Latham, M. (1994) Constructing the team: final report of the government/industry review of procurement and contractual arrangements in the UK construction industry. London: HMSO. • Latham, M. (1996) Goodbye all that. Building, 9 August, 24. • Lewis, L. (1996) The NEC in practice. Building, 7 June, 38. • Lewis, R. (1982) Contracts between businessmen: reform of the law of firm offers and an empirical study of tendering practices in the building industry. Journal of Law and Society, 9(2), 153-175. • Maeda, Y. (1999) Investigation of empirical support for Latham's recommendations on contract policy. Unpublished MSc thesis, Department of Construction Management & Engineering, University of Reading. • Matthews, J., Tyler, A. and Thorpe, A. (1996) Pre-construction project partnering: developing the process. Engineering, Construction and Architectural Management, 3(1), 2),-117-131. • May, A. (1995) Keating on building contracts. London: Sweet & Maxwell. • McLellan, A. (1995) Latham legislation falls short. Construction Manager, November, 5. • Ministry of Construction (1998) The white paper on construction in Japan 1998. (in Japanese) Tokyo: Ministry of Finance. • Murdoch, J. and Hughes, W. (2000) Construction contracts: law and management. 3ed. London: Spon. • Omoto, T. (1996) A comparative study of British and Japanese construction contracts. International Construction Law Review, 13(4), 451-481. • Perry, J. G. (1995) The New Engineering Contract: principles of design and risk allocation. Engineering, Construction and Architectural Management, 2(3), 197-208. • Rooke, J. D. and Seymour, D. E. (1995) The NEC and the culture of the industry: some early findings regarding possible sources of resistance to change. Engineering, Construction and Architectural Management, 2(4), 287-305. • Sidney, M. (1990) Japanese construction: an American perspective. New York: Van Nostrand Reinhold. • Sweet, J. (1991) Standard construction contracts: some advice to construction lawyers. Construction Law Journal, 7(1), 8-23. • Uff, J. (1988) Origin and development of construction contracts. In: Uff, J. and Capper, P. Eds.), Construction Contract Policy. Centre of Construction Law and Management, King's College, London, July 1989. Centre of Construction Law and Management, King's College, London, 5-18. • Uff, J. (1996) Construction law. 6ed. London: Sweet & Maxwell. • Uff, J. (1997a) Compulsory adjudication and its effects on the construction industry In: Uff, J. (Ed) Contemporary issues in construction law 2 - construction contract reform: A plea for sanity London: Centre for Construction Law and Management. pp. 39-60. • Uff, J. (Ed.) (1997b) Construction contract reform: a plea for sanity, London: Construction Law Press. • Uff, J. and Capper, P. (1989) Review and conference conclusions. In: Uff, J. and Capper, P. Eds.), Construction Contract Policy. Centre of Construction Law and Management, King's College, London, July 1989. Centre of Construction Law and Management, King's College, London, • Wallace, I. N. D. (1995) Hudson's building and engineering contracts. 11ed. London: Sweet & Maxwell. • Wallace, I. N. D. (1997) An emperor without clothes: Latham and DOE In: Uff, J. (Ed) Contemporary issues in construction law 2 - construction contract reform: A plea for sanity London: Centre for Construction Law and Management. pp. 131-254.
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