My Musings on Construction Law Week No:4B
What is an essential unwritten rule of Construction Law that should not be ignored by every Site Agent, Resident Engineer and Project Managers and should know by heart i.e. at his fingertips in order to better manage the Contract. ?
I would say it would be these two rules and they are :-
1. What is expressed makes what is implied silent.
This rule is derived from the legal maxim ““Expressum facit cessare tactitum”
2. The expression of one thing is the exclusion of all others, which is from the legal maxim ““ Expressio Unius, Exclusio Alterius”
In layman terms the two rule above can be rolled up to simply means that all rights and obligations of the parties are confined within the boundaries of the contract and nothing beyond. This is commonly referred to as the “Four Corner” rule.
I am sure a lot of you have come the term “Four Corners” but unaware of the 2 legal Maxims which has been accepted as trite law under the Common Law Ecosystem. It has been used effectively in Construction Disputes and Claims.
The four corner rule : also known as the parol evidence rule, stipulates that if two parties enter into a written agreement, they cannot use oral or implied agreements in court to contradict the terms of the written agreement. The term “four corners” refers to the four corners of a document and nothing beyond.
Why is the above awareness important ?
Because most Employer’s Contract Administrator are unaware of them and because of their ignorance they are overzealous when administrating the contract especially when it comes to :
1. Works and Inspection Specifications
2. Testing And Commissioning Specifications
3. Final Acceptance Specifications
On the pretext that the missing Works or Specifications are implied and necessary and as such part of the Works — which is wrong as what is not specified/missing is not within the contractor’s scope of Works and as such not contractually binding.
In my 30 years of handling Disputes and Claims I have come across numerous incidents where either :-
- the Contractor lost his rights to Claim because of his ignorance of the 2 essential rule of Construction Law and failed issue the required notice to claim in time OR
- the Engineer overstep his powers by ordering extras verbally OR through the issuance of amended IFC (Issue for Construction ) drawings and ended up with unnecessary delays and claims for extra time and costs.
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2# “FIDIC 1999 & 2017 Suite of Contracts | Group” | LinkedIn.
3# “Contract Claims Management Group — Construction Industry” | Groups | LinkedIn.
4# “ PAM 2018 and Construction Law in Malaysia” | Groups | LinkedIn — For those residing or working in Malaysia —
Cheers, Happy Reading and Wishing you Good Health Always.
