Contract Claims Research Articles

Analytical Review of the Construction Contractors' Challenges in the Contractual Claims

با توجه به عدم­‌قطعیت‌های حاکم بر پروژه‌های عمرانی و تفاوت بارز آن‌ها با صنایع خدماتی و تولیدی از منظر محدوده و زمان‌بندی کار، عوامل محیطی و چالش‌های اجرایی، پیمانکاران و کارفرمایان همواره با اختلافات و دعاوی قراردادی مواجه هستند. در چنین شرایطی، پژوهشی با موضوع دعاوی قراردادی ضروری است. هدف از این پژوهش، شناسایی چالش‌های مرتبط با فرآیندهای طرح ادعا و رویه مواجهه با این چالش‌ها است. در این راستا، چالش‌های مرتبط با طرح لوایح ادعایی شناسایی و ارزیابی شدند. روش پژوهش به‌صورت کمّی ـ کیفی مشتمل بر بررسی مبانی نظری، بررسی ۱ پرونده ادعایی در ۴ پروژه، مصاحبه با 10 نفر از خبرگان و اخذ نظرهای ۶۰ نفر از کارشناسان به روش پرسشنامه‌ای و تجزیه‌وتحلیل داده‌ها با نرم‌افزار SPSS است. بر این اساس، چالش‌های مرتبط با فرآیند طرح ادعا و لوایح ادعایی مشتمل بر ۳۸ چالش است. به­علاوه مطابق با نتایج پژوهش، ۴۰ درصد چالش‌ها مربوط به پیمانکاران و فرایندهای درون‌سازمانی آن­ها، ۲۹ درصد چالش‌ها مربوط به ساختارهای حاکمیتی، ۲۱ درصد چالش‌ها مربوط به کارفرمایان و ۱۰ درصد چالش‌ها مربوط به مشاوران و دستگاه نظارت است. بهبود ساختارهای حاکمیتی، کاهش ضعف‌های پیمانکاری و استفاده از تجارب و دانش سازمانی می‌تواند در بهبود فرایند ادعای قراردادی مؤثر باشد.

The polyamorous threat to nonmarriage

AbstractSome progressive U.S. Cities and several Canadian provinces now provide mechanisms for polyamorous families to register as such with state authorities. More than a million people in the United States identify as polyamorous and many more practice some form of ethical nonmonogamy. This article suggests that the growing recognition of polyamory poses a substantial threat to a simultaneous development in family law: the call by scholars and the Uniform Law Commission for courts to enforce a more implied contract, implied partnership and equitable claims in the context of non‐marital conjugal cohabitation. Non‐marital cohabitants argue that courts can infer marital‐type commitments to share property from the fact of conjugal cohabitation. They argue that their nonmarriage should entitle them to the kinds of relief afforded to divorcing couples. But polyamorous conjugal cohabitation involves very different norms and commitments to reliance, partnership and transparency than does traditional marriage. Marital‐type relief maps awkwardly, if at all, onto the reality of most polyamorous relationships. By bringing into relief that which we cannot necessarily assume about conjugal cohabitation, the recognition of polyamory questions what many proponents of more legal protection of nonmarital couples ask courts to assume about conjugal cohabitation, namely that it gives rise to reasonable reliance on a status quo and an intent to share property. Moreover, by providing a means for polyamorous households to register their relationships, polyamorous registration normalizes the idea of non‐marital relationship registration. The more normal and expected it is for people who want rights as some form of family to register their familial intent with the state, the harder it is for those who have not so registered to argue that the state must treat them as some sort of family.

Classification of rework root causes in the design stage of projects for contract assessment

Rework is one of the leading causes of cost and time overruns that primarily affect project performance. The performance of construction projects can be elevated with the implementation of rework moderation strategies. Identifying rework root causes is the first step of rework management followed by a mitigation approach, reducing or preventing strategy. As the contract is the core connection between clients and contractors, using a rework management approach in the contracting process allows participants to be aware of rework impacts before the project’s commencement. Selecting the best approach for rework mitigation depends on rework causes and their classified roots. Thus, the paper classifies rework root causes in the design stage of projects to provide a platform for contract documents assessment. The method used to classify the identified rework causes into five categories was designed on the literature. Results from collecting secondary data indicated all categories in the design stage, consisting of technical, human resources, process, material/equipment, and other general factors. The next step of the study is to assess contract documents through a questionnaire based on these classified factors in search of a connection between rework, contractual claims, and clauses of the contract. The paper recommends that assessing contract documents can be used as a new approach for rework management.

Incorporating Emerging Technologies in the Forensic Analysis of Construction Project Delays

Considering the significant role of the construction industry in the global economy, its continuous adoption of new technological advances is both desirable and inevitable. These advances include Building Information Modelling (BIM) and Artificial Intelligence (AI)/Machine Learning (ML). However, not all sections of the industry currently embrace these developments. Forensic Delay Analysis (FDA) is an activity of specialists in extracting and presenting evidence contractual claims disputes that relate to project delays. Such delays are frequent and expensive, but the FDA process has benefitted little from these new technologies. The paper reports the initial work of a collaborative PhD project funded under the Intensive Industrial Innovation Programme of the European Regional Development Fund. The project explores the integration of BIM and AI/ML technologies within the FDA process. The potential of emerging technologies in different parts of the FDA process is first considered, followed by a systematic literature review (SLR) of published work that might support, refute, or exemplify such contributions. The findings show that BIM and AI/ML offer promising solutions to the current challenges of FDA and opportunities for enhancing the effectiveness of dispute resolution, but further work is needed to test the proposed improvements on real-world project workflows and to collect expert feedback to assess their effectiveness.

Comparative studies of available relief for defective aircraft and grounding losses under the legal regimes in China and the U.S.: product tort liability or contractual warranty liability?

ABSTRACT Two crashes of Boeing 737 MAX aircraft in 2019 resulted in the total grounding of all 737 MAX aircraft worldwide. The issue of grounding losses and available relief has attracted widespread attention. From a legal perspective, such losses, which include aircraft devaluation, operating losses, and added costs, constitute pure economic loss. Both Chinese and U.S. law provide for remedies for defects in a sales contract’s subject matter. Under U.S. law, pure economic losses are claimable only by way of a contractual claim. In China, however, current tort law allows for relief for losses other than those arising from aircraft devaluation/losses. Under the Chinese Civil Code, any exemptions stipulated in an aircraft sales contract on grounding losses arising from an aircraft manufacturer’s intentional or grossly negligent acts are invalid. Given the differing regimes in China and the U.S., aviation product liability insurance is an alternative relief channel for grounding losses, for which airlines, under certain circumstances, can directly file a claim with insurance companies. Consequently, characterization of grounding losses as a product tort liability or a contractual warranty liability shall impact on the determination of court jurisdiction, disputing parties and applicable law in the litigation process.

HOW THE SUPREME COURT DISTORTED TEXT, IGNORED HISTORY, AND GASLIGHTED THE BOLD PROMISE OF THE CIVIL RIGHTS ACT OF 1866 A Comcast Case Study

HOW THE SUPREME COURT DISTORTED TEXT, IGNORED HISTORY, AND GASLIGHTED THE BOLD PROMISE OF THE CIVIL RIGHTS ACT OF 1866 A <i>Comcast</i> Case Study

Cost of a lymphedema treatment mandate - 16 years of experience in the Commonwealth of Virginia

BackgroundTreatment of chronic illness accounts for over 90% of Medicare spending. Chronic lymphedema places 3–10 million Americans at risk for recurrent cellulitis. Without convincing predictions of the costs and benefits of lymphedema treatment, insurers are reluctant to fully cover treatment of this common condition. Earlier papers discussed the costs and benefits of the first 5, 7, and 10 years of a lymphedema treatment mandate in Virginia. This paper updates these costs and benefits to 16 years of experience, and includes the impacts of the Patient Protection and Affordable Care Act of 2010 and the transition to ICD-10-CM diagnostic codes in 2015. It provides added confidence that costs of a lymphedema treatment mandate are reasonable, and can result in health insurance contract savings for reduced medical visits and hospitalizations for lymphedema patients.MethodsVirginia requires annual reporting of the segregated costs of each of its 30 medical mandates. Data on Virginia’s lymphedema treatment mandate for the years 2004 to 2019 have been collected from the series of annual reports. These data include actual lymphedema treatment claims data, utilization data, and claims-based estimates of the premium impact.ResultsThe average actual lymphedema claim cost was $2.03 per individual contract and $3.54 per group contract for the years reported, representing 0.05 and 0.08% of average total claims. The estimated premium impact was 0.16–0.32% of total average premium for all mandated coverage contracts. While lymphedema claim costs increased 3–6% per year over the study period, generally following the rise of health care costs, claim costs as a percent of average contract claims fell at a rate of 1.26–1.52% per year over that period. Medical office visits for lymphedema-related services fell from 0.10 to 0.02 visits per year per contract from the beginning to the end of the study period, and hospitalizations for lymphedema or lymphedema-related cellulitis fell to almost zero.ConclusionsThe Virginia data confirmed previous conclusions that the costs of treatment of lymphedema are a small part of a typical health insurance contract, and that treatment of lymphedema by managing swelling results in lower overall medical costs and fewer hospitalizations. This is a potent model for reduction in healthcare costs while improving the quality of care for cancer survivors and others suffering with this chronic progressive condition.

Provocative Eloquence: Theater, Violence, and Antislavery Speech in the Antebellum United States

Provocative Eloquence: Theater, Violence, and Antislavery Speech in the Antebellum United States

Nippon Shinyaku Co. v. Sarepta Therapeutics, Inc.

Nippon Shinyaku Co. v. Sarepta Therapeutics, Inc.

Applicable Law of Insurance Contract Actions

The insurance contract is a legal agreement in which the insured agrees to pay the insured or the beneficiary a sum of money, salary, or other financial compensation in the case of an insured accident, in exchange for installments or other payments to the insured. In case of the insurance contract for the injured person from the insured accident, against the insured responsible for covering this incident in insurance. The law granted a claim known as direct litigation, in which the believer determined the right to replace the insured before the person responsible for the accident and to demand the insured's rights through the suite of solutions, which is what we will attempt to clarify in our research. The distinction in the law that determines the availability of the conditions for accepting direct action and the case for solutions, and whether they are subject to the law governing this contract or are a privilege granted to the creditor against the debtor's debtor, and whether the law governing the debtor's performance otherwise applies to the solutions? In the subject of law, we relied on the insurance contract claims on the comparative study curriculum to ascertain the nature of the problem and review pertinent legal rules to determine the appropriateness of their application to the subject at hand and to illustrate the Iraqi legislator's position in detail in comparison to the Egyptian, French, and American law.

Management of the Contract Claim Presentation and Response in Ethiopia: The Case of Addis Ababa

This research aimed to investigate the difficulties interrelated to contract claim management from the client, contractor, and consultant’s perspective by studying the claim process in public housing construction projects in Addis Ababa, Ethiopia. Both primary and secondary data were collected based on the survey strategy through 72 questionnaires and 250 organizational documents. The data were analyzed using Relative Importance Index, Spearman’s correlation Coefficient, framework analysis, and linear multiple regression model. The research findings showed that the most potential sources of claims were: delays in the supply of input materials; design change; weather conditions; undue delay in the release of payment; and failure to give written instruction. In addition, the contractors' main problems in the contract claim management process are high project managers’ workload, lack of contract knowledge, late notification of claims, poor communication, and unorganized project office administration. The variables of claim notification, identification, and presentation are positive and significantly affected the project claim management process, whereas claim examination and documentation haven’t significance to the project claim management process. The researcher recommended that the three major parties client, the Contractors, and the Consultants shall prevent disputes and minimize claims in the project by attaching through seeking legal advice early, setting up the Disputes Adjudication Board, and improving contract knowledge.

SUCCESS RATE AND IMPLICATIONS OF CONTRACTUAL CLAIMS DECISIONS ON CONTRACTORS IN SOUTH AFRICA

Contractual claims are essential issues and normally disputed because they cause losses if the contractual claims fail to be honoured. The completion of projects can be best without any arising contractual claims by the contractors. However, this appears to be too ideal and almost impossible. Contractual claims have connotations of time and monies, which are to be honoured by the client to the contractor as a payment or compensation for the incurred cost. This article established the success rate or extent to which contractual claims were honoured and the implications of the client’s decisions on contractual claims that were not honoured. The questionnaire was distributed to professionals involved in the administration of contractual claims in projects. Descriptive analysis was used to analyse data. Findings revealed that most contractual claims were honoured in full when they were small in numbers, and when contractual claims increase, the success rate also decreased. The findings further indicated that most projects ended in cost and time overruns due to clients’ decisions on contractual claims. It is expected that the findings of this research will help construction stakeholders to avoid the main causes of contractual claims, and thus increasing the chances of contractual claims being honoured and improving the overall performance of construction projects concerning minimized delays and cost overruns.

Investigating the Relationship between Reworks and Contractual Claims: The Salience of Contract Conditions

AbstractStatistics show a high rate of contractual claims in construction projects, impacting the construction industry’s progress negatively. Rework is one of the main underlying factors that gene...

Konkurencija ugovorne i vanugovorne odgovornosti za štetu u pravu Srbije - s osvrtom na mađarski Građanski zakonik iz 2013. godine i Projekat reforme francuskog Građanskog zakonika iz 2017. godine

In the Serbian literature the issue of the overlap between contractual and liability in tort has been thoroughly discussed. The majority of references state that the differences between the two regimes of liability outweigh their common features, thus separate sets of rules should exist governing each. There are authors who claim that differences are not of such significance so as make the integral concept of liability for damage senseless, hence they support the idea of regulating both regimes of liability by a single set of rules. The effective Obligations Act of 1978 is in line with the majority opinion, since it envisages different sets of rules for each regime of liability. Taking into account the existing duality of the rules in the Act, which significantly differ on major points, the key issue is the overlap of contractual and tortious liability, namely rules of which system of liability should apply if the injured party may base their claim on both (so-called concurrency of claims). Lacking an explicit rule in the Obligations Act, the majority asserts that the regime more favorable to the injured party should apply, which corresponds to the German solution. The inspiration for this paper is found in the new Hungarian Civil Code from 2013 which, in contrast to its predecessor, the 1959 Civil Code, and the Serbian Obligations Act, contains an explicit rule on the concurrency of claims in contract and tort. It prescribes a mandatory application of the rules of contractual liability even when the inflicted damage supports the application of the rules of the liability in tort. Such an approach is in line with the French non-cumul doctrine. The aim of this paper is, on the one hand, to initiate a discussion whether it would be reasonable to have a statutory rule in the Serbian law regulating explicitly the issue of concurrency of claims in contract and tort. On the other hand, the paper highlights the reasons that led the legislator in Hungary to prohibit the concurrency of claims. The solution of the new Turkish Code of Obligations from 2011 is mentioned in the paper, as well, which also contains an explicit rule on this subject matter. However, it took a diametrically opposite standpoint as the Hungarian Civil Code: it explicitly enables competing claims not only in contract and tort, but according to any set of rules granting redress to the injured party. Finally, the paper gives a review of the Project of the Reform of the French Code Civil concerning the rules of the liability for damage from 2017. The Project envisaged a rule that would codify the traditional standpoint of the case law and doctrine on the exclusion of the concurrence of claims and mandates the application of the rules on contractual liability. The Project specifies, however, some major exceptions, when regardless of the existence of a contract between the parties, the rules of tortious liability apply. For the time being, however, it seems that a genuine will of the legislature is lacking to embody the Project in the amendments of the Code civil.

Aantekeninge: Weer eens middellike aanspreeklikheid weens ’n werknemer se opsetlike optrede in eie belang – raak ons regspraktisyns én die howe in hierdie verband dalk oorywerig?

Over the last few years our courts have increasingly handed down judgments dealing with employers’ vicarious liability for delicts committed by their employees during so-called “frolics of their own”. In these judgments the standard requirements for vicarious liability were regularly confirmed, with the exception that the requirement that the delict should have been committed within the course and scope of the employee’s employment underwent major development. In the constitutional court judgment of K v Minister of Safety and Security handed down in 2005 the so-called “standard test” was transformed: the second tier of the test which is applied to establish a sufficiently close link between the employee’s delict and the business activities of the employer was developed from a purely factual test to one incorporating mixed questions of fact and law in which public policy in terms of the constitution plays a major role. Following this judgment our courts increasingly began giving favourable judgments to plaintiffs who had suffered harm flowing from the actions of employees deviating from their normal duties to pursue their own objectives, against their employers (so-called “deviation” cases). This tendency presented itself not only where such actions were instituted against the state in its capacity as employer, but also against private institutions such as a security company, as in the recent judgment of the supreme court of appeal in the case of Stallion Security (Pty) Ltd v Van Staden in 2020. In Oudehoutkloof Boerdery (Pty) Ltd v Venter ((1649/2018) 2021 ZAECGHC 85 (16 September 2021)) the salient facts were that the defendant was the sole proprietor of JLC Cruisers, a business selling restored Toyota vehicles. The defendant’s son was his only employee, with wide-ranging tasks such as marketing, bookkeeping and the general running of affairs. The plaintiffs had previously deposited certain amounts into JLC Cruiser’s bank account following oral agreements for the sale to them of certain vehicles. Thereafter the defendant’s son made unauthorised withdrawals from the bank and misappropriated all the deposited funds for his own use. Shortly before this became known, he committed suicide. The plaintiffs then successfully instituted a delictual claim against the defendant based on the latter’s vicarious liability for the actions of his employee son committed while the latter was on a “frolic of his own”. It is pointed out that the court failed to consider two fundamental requirements for vicarious liability, viz that the employee should have committed a delict against the plaintiffs and that an employeremployee relationship should have existed between the defendant and the perpetrator. It is argued that although the son definitely committed wrongful acts of misappropriation of funds against his father’s (the defendant’s) sole proprietorship, such acts were in fact not delicts committed against the plaintiffs, in particular due to the absence of the delictual elements of wrongfulness, harm and causation. Furthermore, some doubt is expressed regarding the court’s finding that the son had been an employee and not, for example, an independent contractor. Furthermore, based on the assumption that I may be mistaken regarding the former conclusions, the court’s finding that the son had acted within the course and scope of his employment is criticised. It is then suggested that the plaintiffs should simply have instituted a contractual remedy affording them restitution of their deposits. On the assumption that my analysis that there was no delictual basis of the plaintiffs’ actions is erroneous, the final question posed is whether the availability of contractual claims does not exclude delictual remedies in a case such as the present. On the authority of judgments such as Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd, Trustees, Two Oceans Aquarium Trust v Kantey and Templer (Pty) Ltd and AB Ventures Ltd v Siemens Ltd the conclusion is drawn that the concurrence of contractual and Aquilian claims should result in the court’s rejection of the delictual claims. Finally, it is pointed out that an outcome such as that in the case under discussion could have a definite bearing in instances where someone in the defendant’s position had indemnity insurance cover. In such an instance the outcome would be advantageous to both the plaintiffs and the defendant: the latter’s damage would be covered, enabling him to restore the plaintiffs’ deposits. The only loser would be the defendant’s insurer. For this reason, this judgment should arouse the interest of South African insurance companies.

The research background to the final report of the Future of the Corporation programme on �Policy &amp; Practice for Purposeful Business�

This article introduces four research papers that were written for the final report of the British Academy Future of the Corporation programme. It focuses on three areas � corporate law, measurement, and finance. The overarching concept that the programme has developed is of corporate purpose being about creating profitable solutions to problems of people and planet, not profiting from producing problems for either. Adoption and implementation of this requires corporate law to reflect the extension of the boundaries of the firm beyond their conventional ones of property ownership and contractual claims to include the impact that the firm has on others. That should be incorporated in measurement systems that determine the success and profit of a company and in particular account for the costs of rectifying and remedying detriments that it inflicts on others. The purpose of financial systems and institutions in this context is to ensure that the necessary financial resources and forms of investor engagement are available to allow firms to deliver on their purposes. Finally, several cases studies illustrate the extent to which companies are implementing meaningful purposes and the challenges they face in doing so.

Commentary to Art. 1082 Civil Code of the Russian Federation regarding the claim for compensation in kind

The paper analyses the peculiarities of the claim for compensation in kind, determines its relationship with the contractual claim for specific performance and possible grounds for dismissing this claim.

A case Report on the Estimation of Contractual Damage Caused by a Health and Rural University, South Africa

Background: Contractual claims are mandatory for an employee who has either resigned/died or finished his or her contractual obligations. It is legally binding to an institution according to labor law. Case History: BM was such a victim who has been admired nationally and internationally but dehumanized in his own university through the process of three malicious disciplinary enquiries, two suspensions, forensic auditing, and stoppage of salary and birthday bonus. He was not allowed to go to the forensic pathology laboratory despite of the fact that he was all along a forensic pathologist. The harassment of BM became more rigorous in 2008, although he was victim long before that. The head of faculty was promoted later to a position of a university head. BM had an interest in research so he was publishing prolifically, but that disturbed the balance of the faculty staff as the rest of them contributed very little as per the report of the external assessor.1The harassment was not limited only to mental harassment but also at the same time financial losses to Mr. BM occurred. The Occupational Specific Dispensation (OSD) scale is supposed to be given to every health professional in South Africa who is working in the public sector and registered in Health Professions Council. The OSD scale started in 2009 but was not implemented for Mr. BM. Instead, Mr. BM, underwent a series of disciplinary enquiries. He was cleared all the charges and retired in 2018. The history of his research, contractual damages and other collateral losses are discussed in this report. Conclusion: There is heavy contractual damage which the Department of health and rural university has to pay from 1996 to 2018. This damage refers mainly to the short fall of salary and bonuses along with financial losses related to research.

Punitive Damages Awards in International Arbitration: Franchising Case

This article is written to evaluate the practical significance of punitive damages in the field of arbitration concerning international commercial disputes and franchise disputes. It finds that punitive damages awards are frequent in domestic arbitrations in the United States but not internationally common. This article discusses the severity of the punitive damages awards to explain why such decisions are not frequent in international trade disputes; it still has a significant influence that concerns the contracting parties, making them exclude punitive damages in their agreements. This article also explains the reasons for limiting the use of these punitive damages. The first one is the limitation of punitive damages applied to arbitration. Indeed, punitive damages are only recognised under a handful of domestic arbitration laws in a number of countries, especially the ones associated with contract claims. Secondly, the enforceability of such awards is internationally limited due to public policy. Therefore, this difficulty caused the arbitral tribunal to refuse to award such damages. Finally, the statistics on punitive damages award in international commercial arbitration are scarce, so the article refers to provide and analyse the cases that are not international-thereby discussing and evaluating the suitability of punitive damages in the context of international commercial arbitration

MAKING SENSE OF MESNE PROFITS: REMEDIES

AbstractThis is the second of two articles about cases in which awards of “mesne profits” have been made against defendants who have occupied claimants’ land. The first article argues that the facts of cases where such awards have been made variously support claims in tort, contract or unjust enrichment and that practical consequences can flow from categorising the cases in one way or another. One is that different rules affect the assessment of remedies awarded to claimants depending on the claim that was made and the remedy that was awarded. The present article develops this point by examining the assessment principles governing “mesne profits” awards, according to whether these are classified as compensatory damages in tort, restitutionary damages in tort, orders that a defendant perform a contractual duty to pay a debt, compensatory damages for breach of contract, or orders that a defendant make restitution of an unjust enrichment.