B.S.Patil’s Building and Engineering Contracts, 7th Edition: 7th Edition (Hardback) book cover

B.S.Patil’s Building and Engineering Contracts, 7th Edition

7th Edition

By B.S. Patil, Sarita Patil Woolhouse

CRC Press

568 pages

Purchasing Options:$ = USD
Paperback: 9780367133313
pub: 2019-09-12
Available for pre-order
x
Hardback: 9780367133368
pub: 2019-09-10
Available for pre-order
x


FREE Standard Shipping!

Description

From the standpoint of practicing engineers, architects and contractors, the law of contract is the most important one and, from preparation of technical documents to its execution and in the determination of disputes, the engineer or architect must have relevant knowledge. This book acts as a practical guide to building and engineering contracts, to engineers, architects and contractors wherein all points are explained with illustrations gathered from decided court cases. This book covers the substantive law of contract applicable to building and engineering contracts with updated noteworthy judgements. FIDIC conditions are mentioned at appropriate places with a global focus.

Table of Contents

1. THE TENDER

1. 0 INTRODUCTION

1.1 PROVISIONS OF THE ACT

1.2 TENDER- PROPOSAL-DEFINED

1.3 INVITATION TO TENDER

1.4 TYPES OF TENDER DOCUMENTS

1.5 MODES OF INVITING TENDERS

1.6 PRE-QUALIFICATION OFTENDERERS

1.7 REQUIREMENTS OF NOTICE INVITING TENDERS

1.8 PREPARATION AND SUBMISSION OF TENDER

1.9 IRREGULARITY IN SUBMISSION OF TENDERS

1.10 CONDITIONS OFFERED BY THE CONTRACTOR IN IDS TENDER

1.11 WITHDRAWAL OF TENDER

1.12 CONSIDERATION AND SCRUTINY OF TENDERS

1.13 DECISION TO ACCEPT A TENDER

1.14 ACCEPTANCE OF TENDER

1.15 CORRESPONDENCE BETWEEN ACCEPTANCE AND OFFER

1.16 MODE OF COMMUNICATION OF-ACCEPTANCE

1.17 REVOCATION OF ACCEPTANCE

1.18 REJECTION OF TENDER

1.19 COST OF TENDERING

1.20 MISREPRESENTATION AND FRAUD

1.21 BRIBERY AND SECRET COMMISSION

1.23 INTERFERENCE BY HIGH COURT

1.24 READVERTISEMENT

2. THECONTRACT

2.0 INTRODUCTION

2.1 PROVISIONS OF THE ACT

2.2 ESSENTIALS OF A VALID CONTRACT

2.3 PROPOSAL AND ACCEPTANCE OR MEETING OF MINDS

2.4 WHO ARE COMPETENT TO ENTER INTO A CONTRACT

2.5 FREE CONSENT

2.6 CONSIDERATION

2.7 SUBJECT MATTER

2.8 VOID AND VOIDABLE CONTRACTS

2.9 CONTINGENT CONTRACT

2.10 COLLATERAL CONTRACTS

2.11 IMPLIED CONTRACT

2.12 QUASI-CONTRACT

2.13 CONTRACT OF GUARANTEE AND INDEMNITY

2.14 PERFORMANCE OF RECIPROCAL PROMISES

2.15 CONTRACTS, WHICH NEED NOT BE PERFORMED

2.15 CONTRACT TO BE IN WRITING

2.16 CONTRACT DOCUMENTS

2.17 TYPES OF CONTRACTS

3. CONTRACTS BY GOVERNMENT 10

3.0 INTRODUCTION

3.1 PROVISIONS OF THE LAW

3.2 PROVISION MADE IN THE CONSTITUTION OF INDIA

3.3 FORMALITY OF CONTRACTS ON BEHALF OF GOVERNMENT

3.4 NO IMPLIED CONTRACT UNDER ART. 299

3.5 CONTRACT BY CORRESPONDENCE MAY BE VALID

3.6 EXECUTION OF FORMAL CONTRACT:' A CONDITION PRECEDENT

3.7 EFFECT OF NON-COMPLIANCE WITH REQUIREMENTS OF ART. .299(1).

3.8 PERSONAL LIABILITY OF GOVERNMENT 0FFICER

3.9 CONSTITUTIONAL RIGHTS AND OBLIGATIONS OF PARTIES

3.10 ACCEPTANCE/REJECTION OF TENDER -INTERFERENCE BY COURT

3.11 CONDITIONS OF ELIGIBILITY

3.12 PRE-QUALIFICATION OF TENDERER

3.13 MODIFICATION OF TENDER REQUIREMENTS

3.14 OPENING OF TENDERS

3.15 FULFILLMENT OF REQUISITE CONDITIONS OF TENDER NOTICE

3.16 NEGOTIATIONS PRIOR TO ACCEPTANCE

3.17 ACCEPTANCE/REJECTION OF TENDERS

3.18 REJECTION OF THE LOWEST 'TENDER

3.19 REJECTING ALL 'TENDERS

3.20 NOMINATION/PREFERENCE TO A CLASS OF TENDERERS

3.21 BLACKLISTING OR DISQUALIFICATION OF TENDERERS

3.22 BREACH OF CONTRACT - WRIT PETITION NOT MAINTAINABLE

4. INTERPRETATION OF CONTRACT

4.0 INTRODUCTION

4.1 PROVISIONS OF THE LAW

4.2 WHAT IS INTERPRETATION?

4.3 DISTINCTION BETWEEN INTERPRETATION AND CONSTRUCTION

4.4 KINDS OF INTERPRETATION

4.5 AUTHORITY WITH WHOM INTERPRETATION RESTS

4.6 NATURE OF RULES OF INTERPRETATION

4.7 RULES OF INTERPRETATION

4.8 THE CHOICE BETWEEN 'STRICT CONSTRUCTION’

4.9 FORCE MAJEURE CLAUSE

4.10 DISTINCTION BETWEEN ASSIGNMENT AND SUB-CONTRACTING

4.11 FLUCTUATION IN THE RATE OF DOLLAR - IF AMOUNTS TO ESCALATION

4.12 DOCTRINES OF INTERPRETATIONS

4.13 CONTRA PROFERENTUM RULE

4.14 UNFAIR AND UNREASONABLE CONTRACT

4.15 WHAT IS AN UNCONSCIONABLE CONTRACT?

4.16 FUNDAMENTAL BREACH OF CONTRACT

4.17 THE DOCTRINE OF IMPLIED TERMS

4.18 THE DOCTRINE OF "PRESUMED INTENT"

4.19 EJUSDEM GENERIS RULE

4.20 DOCTRINE OF ESTOPPEL

4.21 THE DOCTRINE OF PROMISSORY ESTOPPEL

4.22 THE DOCTRINE OF PUBLC POLICY

4.23 ORAL EVIDENCE RULE

4.24 CONFLICT OF LAWS/THE DOCTRINE OF PROPER LAW

5. VARIATIONS/ DEVIATIONS

5.0 INTRODUCTION

5.1 PROVISIONS MADE IN STANDARD FORMS

5.2 EXTRA WORK AND ADDITIONAL WORK DISTINGUISHED

5.3 PROVISIONS IN STANDARD FORM CONTRACT OF CENTRAL AND STATE PUBLIC WORKS, RAILWAYS & OTHER DEPARTMENTS

5.4 RIGHT TO CHANGE IS LIMITED

5.5 FIDIC FORM

5.6 OMISSION IN SCOPE OF WORK

5.7 DECISION REGARDING RATE - WHEN NOT OPEN TO ARBITRATION?

5.8 CHANGE ORDERS MUST BE WRITTEN

5.9 CONFIRMATION OF ORAL ORDER

5.10 ABSENCE OF WRITTEN VARIATION ORDER: CONTRACTOR WHEN NOT

BOUND TO EXECUTE THE EXTRA WORK

5.11 RECOVERY IN ABSENCE OF WRITTEN ORDER - WHEN POSSIBLE?

5.12 INSTRUCTION TO ASSIST CONTRACTORS IN DIFFICULTY

5.13 EXTRAS CAUSED BY MISREPRESENTAITION

5.14 EXTRAS CAUSED BY LEGAL PROV'ISION

5.15 EXTRAS: WHEN CONTRACT BASED ON 'APPROXIMATE ESTIMATE'

5.16 EXTRA CLAIMS BEYOND THE SCOPE OF AGREEMENT

5.17 OWNER'S LIABILITY TO PAY FOR CHANGES MADE

5.18 BASIS OF COMPENSATION FOR EXTRA WORK

5. 19 ABSENCE OF MEASUREMENT" RECORD MAINTAINED BY THE

CONTRACTOR MAY BE RELIED UPON

5.20 COMMON GROUNDS ON WHICH EXTRAS ARE CLAIMED -

ILLUSTRATIVE CASES

6. TIME FOR COMPLETION, DELAY IN COMPLETION

6.0 INTRODUCTION

6.1 PROVISIONS OF THE LAW

6.2 MODE OF SPECIFYING TIME LIMIT

6.3 CAN ADEQUACY OF TIME LIMIT BE QUESTIONED?

6.4 MEANING OF "WORKING DAYS"

6.5 MEANING OF TIME SHALL BE DEEMED TO BE

THE ESSENCE OF THE CONTRACT

6.6 WHEN IS TIME ‘OF THE ESSENCE OF THE CONTRACT'

6.7 WHEN TIME CEASES'TO BE OF THE ESSENCE

OF THE CONTRACT

6.8 EXTENSION OF TIME

6.9 WRITTEN REQUEST BY A CONTRACTOR –

A CONDITION PRECEDENT…..

6.10 CONDITIONS UNDER WHICH TIME SHOULD BE EXTENDED

6.11 WHO SHOULD GRANT EXTENSION OF TIME?

6.12 CAN EXTENSION OF TIME BE GRANTED WITH

RETROSPECTIVE EFFECT?

6.13 CONDITIONAL EXTENSION OF TIME

6.14 EXTENSION OF TIME NOT GRANTED,

EVEN FOR JUST REASONS

6.15 EXTENSION OF TIME - EFFECT ON

COMPENSATION FOR DELAY

6.16 PROCEDURE OF TERMINATING THE CONTRACT

AFTER EXPIRY OF TIME LIMIT

6.17 WHEN NO TIME LIMIT IS SPECIFIED FOR PERFORMANCE

OR SPECIFIED TIME INAPPLICABLE

6.18 TIME AND PLACE OF PERFORMANCE

7. PENALITY/ LIQUIDATED DAMAGES

7.0 INTRODUCTION

7.1 PROVISIONS OF THE INDIAN CONTRACT ACT

7.2 PURPOSE OF LIQUIDATED DAMAGES

7.3 PENALTY AND LIQUIDATED DAMAGES DISTINGUISHED

7.4 STIPULATIONS MADE IN CONSTRUCTION CONTRACTS

7.5 WHY STIPULATE FIXED SUM?

7.6 ALTERNATIVE METHOD SUGGESTED

7.7 CLAUSE RELATING TO LIQUIDATED DAMAGES –

WHEN CAN IT BE EVOKED?

7.8 EXTENSION OF TIME AND PENALTY FOR DELAY

7.9 LIQUIDATED DAMAGES PROVISION - A MERE RIGHT TO SUE

7.10 RELEASE OF LIQUIDATED DAMAGES

7.11 LIQUIDATED DAMAGES EXCLUDES RIGHT TO UNLIQUIDATED DAMAGES

7.12 EFFECT OF TERMINATION / FORFEITURE

7.13 BONUS PROVISIONS

8. QUALITY OF WORK, DEFECTS AND MAINTENANCE

8.0 INTRODUCTION

8.1 CONDITIONS IN THE STANDARD FORM CONTRACTS

8.2 CONTRACTOR'S IMPLIED OBLIGATIONS

8.3 NOMINATED SUPPLIER/SUB CONTRACTOR

8.4 INTERPRETATION OF SPECIFICATIONS

8.5 DESIGN FAILURE

8.6 REMOVAL OF IMPROPER WORK

8.7 DEFECTS AND MAINTENANCE CLAUSE

8.8 COST INCURRED IN PROVIDING REMEDIAL MEASURES

8.9 TAKING POSSESSION IS NO BAR TO' CLAIM DAMAGES

8.10 ENGINEER’S/ ARCHITECT'S DECISION FINAL

9. MEASUREMENT, VALUATION AND PAYMENT

9.0 INTRODUCTION

9.1 PROVISIONS OF THE LAW AND STANDARD FORM CONTRACT

9.2 INTERIM PAYMENT CERTIFICATE (IPC)

9.3 WHERE A CONTRACTIS SILENT ON INTERIM PAYMENTS

9.4 ROLE OF AN ENGINEER OR ARCHITECT IN GRANTING CERTIFICATES

9.5 ISSUE OF INTERIM CERTIFICATE - DOES NOT AMOUNT TO ECCEPTANCE

9.6 CERTIFICATES AS CONDITION PRECEDENT TO PAYMENT

9.7 WHEN CONTRACTOR CAN RECOVER PAYMENT IN THE ABSENCE

OF CERTIFICATES

9.8 FAILURE TO MAKE INTERIM PAYMENTS CONSTITUTES

BREACH OF CONTRACT

9.9 PAYMENT MADE UNDER MISTAKE

9.10 OVERPAYMENTS AND UNDERPAYMENTS

9.11 FINAL CERTIFICATES

9.12 HOW FINAL ARE FINAL CERTIFICATES?

9.13 CLAIMS MADE AFTER PAYMENT OF FINAL BILL-

IF AND WHEN MAINTAINABLE?

10. BREACH OF CONTRACT

10.0 INTRODUCTION

10.1 PROVISIONS OF THE LAW AND STANDARD FORM CONTRACTS.

10.2 REFUSAL TO PERFORM CONTRACT

10.3 BREACHES BY THE CONTRACTOR

10.4 BREACH BY THE OWNER

10.5 DEFAULT BY OWNER AND/OR CONTRACTOR

10.6 EXCUSES FOR NON-PERFORMANCE

10.7 DOCTRINE OF FRUSTRATION

10.8 EFFECT OF FRUSTRATION

10.9 CONSEQUENCES OF BREACH OF CONTRACT

11. COMMON BREACHES OF CONTRACT

11.0 INTRODUCTION

11.1 PROVISIONS OF THE STANDARD FORM CONTRACTS

11.2 BREACHES BY THE OWNER/EMPLOYER

11.3 BREACHES BY CONTRACTOR

11.4 BREACHES BY EMPLOYER

11.5 DELAY IN SUPPLYING WORKING DRAWINGS, DECISIONS

11.6 NORMAL PROVISIONS IN CONSTRUCTION CONTRACTS

11.7 DELAY IN CARRYING OUT WORK OR SUPPLYING MATERIALS

11.8 DELAY BY OTHER AGENCIES

11.9 STOPPAGE OR SUSPENSION OF WORK

11.10 FAILURE TO PAY AS PER AGREEMENT

11.11 BREACH OF CONTRACT BY CONTRACTOR

11.12 FORMS OF DISCHARGE BY BREACH

12. REMEDIES FOR BREACH OF CONTRACT

12.0 INTRODUCTION

12.1 PROVISIONS OF THE LAW/CONTRACTS

12.2 DAMAGES

12.3 SECTION 73

12.4 ESSENTIAL CONDITIONS FOR ENTITLEMENT TO DAMAGES

12.5 DISTINCTION BETWEEN ‘COMPENSATION' AND 'DAMAGES'

12.6 KINDS OF DAMAGES

12.7 EXCLUSION OR EXEMPTION CLAUSES AND RIGHT TO CLAIM DAMAGES

12.8 GENERAL PRINCIPLES OF ASSESSMENT OF DAMAGES

12.9 ASSESSMENT OF DAMAGES IN CONSTRUCTION CONTRACTS

12.10 ASSESSMENT OF DAMAGES PAYABLE TO THE CONTRACTOR

12.11 FACTS AND CIRCUMSTANCES JUSTIFYING PAYMENT AT THE .

ORIGINALLY AGREED RATES DURING THE EXTENDED PERIOD

12.12 CLAIM FOR REVISION OF RATES - WHEN TENABLE?

12.13 ALTERNATIVE REMEDY TO DAMAGES ~ QUANTUM MERUIT

12.14 BREACH OF CONTRACT BY THE CONTRACTOR

12.15 DAMAGES DIFFICULT TO ESTIMATE - NO GROUND TO AWARD

NOMINAL DAMAGES

12.16 SPECIFIC PERFORMANCE / INJUNCTION TO RESTRAIN BREACH

12.17 LIEN / VESTING CLAUSES

12.18 FORFEITURE

12.19 APPLICABILITY OF SECTION 74 TO SECURITY DEPOSIT AND OTHER .

PENAL STIPULATIONS

12.20 PROVISIONS MADE IN CONSTRUCTION CONTRACTS FORFEITURE

OF EARNEST MONEY / SECURITY DEPOSIT

12.21 FORFEITURE OF SECURITY DEPOSIT- LOSS MUST BE PROVED

12.22 WRONGFUL FORFEITURE

12.23 ENFORCEMENT OF BANK GUARANTEE

13. SUBCONTACTS

13.0 INTRODUCTION

13.1 PROVISIONS OF THE STANDARD FORM CONTRACTS

13.2 WRITTEN PERMISSION TO SUBLET OR ASSIGN WHEN NECESSARY

13.3 AGREEMENT TO SUBCONTRACT

13.4 PROVISIONS OF MAIN CONTRACT HOW FAR APPLICABLE TO SUBCONTRACT

13.5 ITEM OF WORK NOT IN SUB-CNTRACT

13.6 RELATIONSHIP BETWEEN OWNER AND SUBCONTRACTOR

13.7 NOMINATED SUB CONTRACTOR

13.8 LIABILITY OF SUBCONTRACTOR UNDER INDEMNITY CLAUSE

13.9 RIGHTS OF MATERIALS SUPPLIERS

13.10 ARBITRATION CLAUSE IN SUBCONTRACT

14. CONTRACT BETWEEN OWNER AND

ARCHITECTIENGINEER

14.0 INTRODUCTION

14.1 PROVISIONS OF THE INDIAN CONTRACT ACT

14.2 CONTRACT TO BE IN WRITING

14.3 CONDITIONS OF APPOINTMENT

14.4 THE SCOPE AND EXTENT OF ENGINEER'S/ARCHITECT'S AUTHORITY

14.5 REMUNERATION OF THE ENGINEER AND ARCHITECT

14.6 WHEN REMUNERATION MAY NOT BE PAYABLE

14.7 MANNER OF PAYMENT OF REMUNERATION

14.8 OWNERSHIP OF PLANS AND COPYRIGHT

14.9 POSITION OF THE ENGINEER AND ARCHITECT

 

14.10 LIABILITIES OF ENGINEERS AND ARCHITECTS

14.11 ISSUE OF CERTIFICATES

15. LIMITATION

15.0 INTRODUCTION

15.1 PROVISIONS OF THE LAW

15.2 CAUSES OF ACTION IN BUILDING AND ENGINEERING

CONTRACTS

15.3 RELEVANT PROVISIONS OF THE LIMITATION ACT, 1963

15.4 DATE ON WHICH CAUSE OF ACTION ACCRUED

15.5 SECTION 28 OF THE INDIAN CONTRACT ACT

16. CLAIMS, DISPUTES AND THEIR RESOLUTION

BY DRE/DRB/CONCILIATION AND/OR ARBITRATION

16.0 INTRODUCTION -"DISPUTES ARISING OUT OF CONTRACT"

16.1 PROVISIONS MADE IN STANDARD FORM CONTRACTS

16.2 FIDIC FORM 1999 EDITION: CLAUSE 20

16.3 CONCILIATION

16.4 ARBITRATION

16.5 EXCEPTED MATTERS

16.6 NO CLAIM CERTIFICATE GIVEN- CAN CLAIMS BE REFERRED

16.7 EXTRA/ADDITIONAL WORK ORDERED WHETHER GOVERNED

BY ARBITRATION CLAUSE IN ORIGINAL CONTRACT

16.8 TWO CONTRACTS - ONE AWARD - IF VALID ?

16.9 ARBITRATION CLAUSE SURVIVES TERMINATION OF CONTRACT

16.10 TRANSFER OF APPOINTED ARBITRATOR - CONTINUATION

OF PROCEEDINGS - IF VALID?

16.11 CONDITION PRECEDENT TO INVOCATION OF ARBITRATION

CLAUSE - MM'DATORY

16.12 THE LAW OF ARBITRATION

About the Authors

Mr. B.S. PATIL, born in 1939, had a brilliant academic career. He passed his Bachelor of Civil Engineering examination in first division with distinction and ranked first in order of merit. He also passed Bachelor of Laws examination in the first division and ranked first in order of merit. In the beginning of his career he worked as a civil engineer for nearly 20 years and thereafter he has been practicing law, exclusively in engineering field for the last 40 years. In the seventh edition of this title, he gives the benefit of his in-depth study of the subject and rich experience as a consultant, conciliator, arbitrator and advocate. Author of Civil Engineering Contracts and Estimates, the Law of Arbitration and Conciliation, he has also contributed several papers and articles to engineering journals. He was a Member of Faculty of Engineering, Marathwada University, Aurangabad, and at College of Engineering, Pune (India).

Dr. Sarita Patil Woolhouse, After passing B.S.L.and LL.B. examinations in the first division, from University of Poona with the first rank, she did her M. Phil. from the University of Cambridge, UK. The second edition of B.S.Patil’s Law of Arbitration written by her was an instant success. After several years’ practice in India she moved to London . With the experience of participating in international arbitrations and cross-border commercial litigation in Europe in various sectors including construction, energy, telecoms and Bar. After several years’ practice in . With the experience of participating in international arbitrations and cross-border commercial litigation in Europe various sectors including construction, energy, telecoms and so on, she earned a doctorate in global governance with a focus on international investment law. Presently, she is a Senior Lecturer in Law and is based in Cambridge, UK.

Subject Categories

BISAC Subject Codes/Headings:
TEC005000
TECHNOLOGY & ENGINEERING / Construction / General
TEC009020
TECHNOLOGY & ENGINEERING / Civil / General