Standard Form Contracts Research Articles

Influence of Building Information Modelling (BIM) on Engineering Contract Management in Nairobi, Kenya

Building Information Modelling (BIM) is a technology and a process that has brought changes in the construction’s traditional procurement system. Kenya lacks contractual guidelines on implementation of BIM; this makes the adoption of BIM slow and difficult. Previous research has identified a gap in contractual relationships, roles and resulting risks. The objectives of this study were to investigate BIM adoption in Nairobi and to investigate the influence of BIM on Engineering Contract Management (ECM) in Nairobi Kenya. The survey research was a descriptive study with 175 responsive questionnaires. Respondents comprised of Civil Engineers, Construction Project Managers, Architects, Quantity Surveyors, Contractors and Facility Managers. Data was collected through self-administered questionnaire and in-depth interview. Descriptive analytics, correlation and Exploratory factor analysis methods were used to analyse quantitative data. Qualitative data was analysed thematically. It emerged that adoption level was at 56.6% and shallow understanding of BIM capabilities remains to be a barrier to its adoption and implementation. It also emerged that BIM improves ECM; when time, cost, quality, collaboration and return on investment improve, ECM becomes easier. Latent factors found in BIM and ECM relationship were Legal Implications, awareness and knowledge, efficiency, versatility, mandate and leadership, and competitiveness. Further, the study found out that BIM influence on ECM demands for establishment of standards, guidelines, policy, legal framework, and regulations, which can be achieved by amending the public procurement act which dictates the operation of all the other standard forms of contract. Further research should be conducted to measure whether the understanding of BIM had positively improved.

Control of Price Related Terms in Standard Form Contracts: Spain

Control of Price Related Terms in Standard Form Contracts: Spain

Međunarodna trgovina i transnacionalno pravo

This article deals with the globalisation of contract law. It begins with an historical survey before taking an inventory of the various types of uniform law. These range from 'hard' law, such as multilateral treaties, to 'soft' law, an expression that captures various non-binding instruments that can usefully be employed by contracting parties and sovereign states. These include contractual standard terms (e.g. Incoterms 2020) and standard form contracts (e.g. ISDA contracts), as well as UNCITRAL model laws. The influence of national law in the globalisation process is noted, whether it takes the form of influencing the laws of other states or provides input into the creation of uniform law. The UN Convention on the International Sale of Goods (CISG) is examined at key points with reference to the influence exerted by the civil law and the common law in its creation. The importance of maintaining the uniform character of the CISG is underlined. Finally, the role played by the UNIDROIT Principles of International Commercial Contracts (PICC) is also examined.

Control of Price Related Terms in Standard Form Contracts: Spain

English Abstract: The purpose of this paper is to analyse whether Private law could determine the fate of the Circular Economy. The article will first assess the legal relationship that the service creates between the supplier and the consumer. This relationship establishes a contractual bond in which the quality of performance is at stake. Next, the paper moves on to the complex proprietary consequences of the service, an issue that is aggravated in the context of real estate. The erga omnes effects of property rights justify the chapter’s focus on the supplier-customer relationship but also on the interaction of third parties with the goods deployed in the service. Lastly, the article addresses an issue that affects both the contracting parties and third parties: non-performance and insolvency. Spanish Abstract: Este articulo examina la problematica juridica que suscitan las clausulas contractuales que contienen referencias a terceros, en particular, las que aluden a competidores o rivales de las partes contratantes para regular distintos aspectos de la relacion contractual. La utilizacion de este tipo de clausulas se ha multiplicado con el desarrollo de los mercados plataforma y el comercio digital en internet. Tras analizar la logica economica que suele inspirar estos terminos contractuales, particularmente sobre el precio, se consideran aquellos supuestos en los que las circunstancias relativas a los bienes/servicios objeto de contrato y la posicion de las partes contratantes en el mercado pueden hacer que estas clausulas tengan un impacto negativo en el bienestar social y se consideren ilicitas.

The Essential Roles of Agency Law

This Article suggests a fundamental shift in how we think about agency. The essential function of agency law lies not only in enabling the delegation of authority, as is widely suggested, but as significantly in its effect on creditors’ rights through asset partitioning. There is an increasing temptation in legal scholarship to treat agency law as a sideshow confined to the first day of corporations class. This is because much of what agency law does in commerce could simply be accomplished through standard-form contracts that provide default terms for the relationships among firms, their managers, and third parties. Even agency’s much-vaunted fiduciary duties can easily be altered or waived by contract—and often are. This Article identifies the essential roles of agency law, which parties could not contractually replicate, and the important efficiencies that flow from them. Agency’s essential roles in commercial enterprise are twofold: first, to permit one person to attribute the legal significance of his or her acts to another, and second, to facilitate asset partitioning. Just as limited liability partitions off the assets of a firm’s owners from the assets of the firm itself, agency law partitions off the assets of a firm’s managers from the firm’s own assets. Recognizing this function reframes the usual staging of contractual disputes in agency as a zero-sum balancing act between the interests of third parties and of principals. Whether owners or managers should be liable for a firm’s unpaid contracts is not just a win-lose distributional question—pitting the firm’s creditors against insiders—but rather can be socially efficient. Through simplifying and specializing asset pools, asset partitioning lowers the cost of monitoring the firm’s assets and thus the cost of credit. To illustrate the asset partitioning role of agency law, I unearth two doctrines ignored by scholarship—the “veil piercing” doctrines of agency. Understanding agency’s asset partitioning role has extensive implications for theory and practice. In addition to providing a unifying account of agency law, the analysis resolves current disputes in the interpretation of its doctrine. Most importantly, recognizing the essential roles of agency demonstrates its ongoing significance to commercial and corporate law.

Taking Boilerplate Seriously: Tackling Exploitation in Consumer Contracts

This Article calls for a conceptual shift toward the scrutiny of exploitative consumer standard form contracts. Current approaches to consumer standard form contracts assume that imbalanced and unfair terms can be adequately challenged by aggrieved consumers and effectively scrutinized by vigilant courts. Some even believe that market forces and reputational constraints alone can deter firms from employing exploitative terms in their form contracts or dissuade them from actually relying on such terms. Criticizing these assumptions, the Article suggests supplementing the current means of addressing exploitation in standard consumer contracts by a dynamic preventive system of public control. Specifically, we propose a professional system of administrative oversight over the content of consumer form contracts. The Article demonstrates how such a machinery can efficiently tackle the widespread supply and use of unfair terms as well as unconscionable and even llegally invalid boilerplate terms. While not a panacea, such a regime has the promise of shifting the burden of confronting exploitation in consumer contracts from a feeble and ineffective system of private enforcement to a sophisticated and robust system of public oversight.

Unwaivable: Public Enforcement Claims and Mandatory Arbitration

This essay, written for a conference on the “pathways and hurdles” that lie ahead in consumer litigation, is the first to examine the implications of California’s recent jurisprudence holding public enforcement claims unwaivable in standard-form contracts of adhesion, and the inevitable clash with the U.S. Supreme Court’s decisional law interpreting the Federal Arbitration Act. With its rich history of rebuffing efforts to deprive citizens of public rights through private contract, California provides an ideal laboratory for exploring this escalating conflict.

Quantitative Model for the Systematic Evaluation of Standard Form of Civil Engineering Contract

This research presents a quantitative model for standard-form review that is systematic and concise with the aim to reduce dependency on individuals’ opinions and the subjectivity in standard-form review. Construction industry in Malaysia has always has a heavy reliance on the standard-forms of contract as its General Conditions of Contract to outline the obligations and the rights or the parties contracting in civil engineering projects. However, according to the literatures available, the existing forms and all their subsequent revisions are still falling short in certain areas. Studies on standard form including those of form revisions are typically conducted qualitatively and in a rather random manner but the search for contractual documents idealization still remains. In this research, eight (8) attributes for standard form study and their relevant parameters were selected. A structured questionnaire survey was done to establish the rankings of these attributes and their importance weighting, Wi. Then, a structured technique to evaluate the clauses based on the Level of Adequacy, Ai against the number of problematic issues, is designed for form reviewer to evaluate each clause. Each clause in the standard-form will have a final Total Evaluation Score (TES). Magnitude of Evaluation of TES is designed to check the magnitude of positivity or negativity of the clauses. It is hoped that with a structured and quantitative model for form evaluation, both the positive points and conversely the problematic areas and issues in standard-forms of contract, not only in Malaysia but worldwide, can be determined in an objective manner, which in turn enhances future form drafting and revisions in the quest for an ‘ideal’ form.

“Cláusulas de permanencia”, prácticas comerciales desleales, y estrategias competitivas a la luz de ciertos contratos con operadoras móviles en España: Una visión holística del asunto

En el contenido de determinadas “condiciones generales de la contratación” establecidas en contratos de adhesión, y en concreto, de algunas compañías de telefonía móvil, es una práctica común, la inclusión de cierta “cláusula predispuesta” que por sus características y tras el análisis realizado en esta contribución podrían llegar a considerarse como una cláusula abusiva. Por otro lado, podrían además, tener la condición de práctica comercial desleal según lo establecido en la Ley 3/1991 de Competencia desleal española, atendiendo a lo dispuesto en la Directiva de prácticas comerciales desleales. El análisis pretende poner de relieve estos dos aspectos que están relacionados con otro problema de fondo. La dificultad y falta de mecanismos adecuados entre el reproche de deslealtad y el reproche que se hace en el ámbito del Derecho de los contratos de consumo Business to Consumer-B2C de abusividad a ciertas prácticas. De otro lado, se analiza de forma sucinta, si la inclusión de estas cláusulas podría considerarse como una estrategia competitiva en el Mercado de las Telecomunicaciones de tipo Business to Business-B2B por aquellos operadores que las predisponen en sus contratos de adhesión frente a los operadores, que siendo de menor tamaño, no las predisponen en estos mismos contratos. General Conditions of the Contracts, which are included in certain Adhesion contracts (Standard Form Contracts) and are drafted by the telephone operators companies, include a very special kind of clauses, “retention covenants”. These clauses constitute a limitation for the users and consumers, which also it refrain them to withdrawal the contract with the Mobil operator. One of the drawbacks is that, these legal conditions are allowed to the detriment of the weaker party, the consumer. According to the analysis, these kinds of clauses can be also constitutive of aggressive practices typified in the current Spanish Unfair competition Act and the European Consumer Law, stressing the problems between the connection between the unfair commercial practices and Consumer Contract Law, i.e.: considering these clauses not only as abusives but also unfairs. Moreover, these practices from a Business-to-Business (B2B) approach could be considered an anti-competitive practice, because by means of its establishemnt in these contracts, are hampering the competition, in the Telecommunications Market

Economic Theories of Contract and Contract Law, the Catalysts for Economic Development in Ghana through Pareto Distribution of Resources

Every economy in the world is deserving of proper and adequate management for sustenance of same with the view to promoting the well being of the citizenry. The economy must be managed to the extent that the citizenry will be free to enter into any bargain of their choice to make a living. It is an undisputable fact that contract is the linchpin of the relationship that exists among the people in the business community. The striving economy has, as its movers and shakers, the people who constitute the business community to move it along. The basis of providing congenial working environment is, among other things, for pareto improvement distribution of resources in order to create wealth among the people whilst poverty is reduced. It is against this backdrop that this paper seeks to analyze the economic theories of contract and contract law to unearth their potentialities as the catalysts for the economic development in Ghana. In so doing, the paper looks at the economic functions of contract law, the default rules, standard form contract, damages and penalty clauses from which to make inferences and draw conclusions.

Fighting giants: using standard form contracts to protect the industry outsider

ABSTRACTRecent advancements in technology have changed the way consumers watch movies and television, and disrupted the entertainment industry. In the aftermath of this disruption, artists have more bargaining power than ever. This Note suggests ways to empower the industry ‘outsider’ by providing them with tools to educate themselves and effectively engage in negotiations with publishers. These tools include a collection of standard form contracts with terms tailored to the modern age of entertainment, increased funding for non-profits and labor unions, and appointed attorneys.

Digitalization of Transactions and Consumer Protection in Wrap contracting

E-commerce today gives opportunities for businesses in the online environment to expand their businesses rapidly and provide services to larger group of online consumers. Although the online medium is a comfortable platform for carrying out commercial/consumer transaction, the purchasers are disadvantaged due to various major reasons like lack of adequate information about the products and services, acceptance of the standard form contracts (SFC) which binds parties to the terms and conditions prescribed by the e-commerce business providers based on their convenience which includes dealing with defects, redressal mechanisms included, etc. This leave no option/feedback for online purchasers before or at the time of making their transaction. One of several defences which can be claimed by the online purchasers is unconscionability in contract clauses. The difficulty on the part of consumers is to prove unfairness which can be either substantive or procedural. To deal with SFCs, courts have concerned that online users consenting to these agreements leads to absolute exploitation on the part of businesses without considering the mutual benefits of either party which is the essence of the contract. The article focusses on the concept of wrap contracting, the legality and enforceability of standard forms used in digital transactions and existing legal regimes in various jurisdictions and also steps to be taken to regulate web-based business/service providers in dealing with modernized electronic contracting. The article reveals that the existing legal mechanisms and the role of law dealing with SFCs is not adequate protecting online consumers and there is an urgent need to amend or formulate regulations leading to absolute consumer protection.

Note: Fighting Giants: Using Standard Form Contracts to Protect the Industry Outsider

Recent advancements in technology have changed the way consumers watch movies and television, and disrupted the entertainment industry. In the aftermath of this disruption, artists have more bargaining power than ever. This Note suggests ways to empower the industry “outsider” by providing them with tools to educate themselves and effectively engage in negotiations with publishers. These tools include a collection of standard form contracts with terms tailored to the modern age of entertainment, increased funding for non-profits and labor unions, and appointed attorneys.

Briefing: Interpreting contractors’ mandated standard of design

This briefing covers contractors’ standard of design responsibility by analysing current standard forms of contract and reviewing recent relevant case law. A report ranks failure to understand and/or comply with contractual obligations as the third top cause of construction disputes in the UK. The distinction between reasonable skill and care and fitness-for-purpose responsibilities is explained. A fitness-for-purpose standard accepted by contractors will not be back-to-back with a designer who will only accept a reasonable skill and care responsibility. Professional indemnity insurance policies will cover a failure to exercise reasonable skill and care but usually exclude protection for fitness-for-purpose obligations. Current Joint Contracts Tribunal, NEC and International Federation of Consulting Engineers contracts are analysed. It is notable that these standard forms of contracts adopt different stances on the important matter of a contractor’s mandated standard of design. Technology and Construction Court, Supreme Court and Scottish Court of Session Inner House decisions are reviewed. The three cases found the contractor liable for a fitness-for-purpose obligation. Therefore, contractors should interpret a contract’s conditions and schedules for their mandated standard of design before agreement.

The ‘No-reading’ and Consent in Online Consumer Standard Form Contracting

Like transactions in the paper world, online consumer transactions are dominated by standard form contract terms. The online era has brought with it various mechanisms of entry into agreements, including shrink wrap, click wrap and browse wrap agreements. With increasing alacrity, consumers are mouse-clicking their way into standard form contracts on the internet. A major challenge with the otherwise called online contracts of adhesion is the perception that consumers do not often read or understand the fine-print terms and this makes it difficult to identify the requisite “meeting of the minds” or “mutual assent” of contract formation. When confronted by a lengthy and incomprehensible standard form contract, the response of many, if not most, consumers is to click “yes”’ – without reading the contract or giving it careful consideration. The paper examines how case law responds to the issues of no-reading and assent in an online consumer standard form environment. The paper recommends some practical guides for implementation of technique of legal agreements in the light of case law. Keywords : consumer, standard form contract, terms and conditions, no-reading, assent DOI : 10.7176/EJBM/11-17-02 Publication date :June 30 th 2019

Franquia e arbitragem: breve estudo a partir de emblemática decisão do Superior Tribunal de Justiça

Franquia é um negócio celebrado para a colaboração entre empresários. Tratando-se de um contrato interempresarial é fundamental garantir-se a autonomia e a liberdade contratual das partes, respeitando-se, por exemplo, a cláusula que elege a arbitragem para solução de conflitos. Os sistemas de franquia, para funcionarem como tal, exigem uma certa padronização, inclusive no que se refere ao contrato que instrumentaliza o negócio. Contudo, a padronização do negócio não pode implicar na classificação do contrato de franquia como de adesão. Não obstante, foi esse o principal argumento utilizado pelo Superior Tribunal de Justiça para declarar a nulidade de cláusula compromissória patológica inserida em contrato de franquia, submetendo a controvérsia ao Poder Judiciário. Os principais objetivos do presente artigo são: demonstrar que o contrato de franquia não é um contrato de adesão, mas, no máximo, por adesão, bem como que tal posicionamento do Judiciário gera insegurança para as relações negociais e desestabiliza o mercado. Parte-se, pois, do caso concreto para a realização da análise, utilizando-se o método indutivo.

Guidelines for Administrating and Drafting Nonpayment Owners' Obligation Provisions under Design-Build Contracts

AbstractThe obligations of the different contracting parties are set forth in most standard forms of contract. Despite that, research has shown that poor contract administration is one of the major...

Application of direct payment clause 30A.0 of the Asian International Arbitration Centre (AIAC) Standard Form of Contract (with quantities)

Conditional payment such as “pay when paid” or “pay if paid” can create negative chain effect on the parties in construction projects, resulting in delay on the completion of a project, adversarialism and may affect a contractor’s reputation. Asian International Arbitration Centre (AIAC) has launched a standard form of contract which is Construction Industry Payment Adjudication Act (CIPAA) compliance with the aim to reduce payment issues. The aim of the research is to identify whether the clause for “direct payment under CIPAA 2012” of the new AIAC standard form of contract can facilitate problems in direct payment. In achieving the aim of the research, five legal cases were analysed and thirty questionnaires forms were distributed. Legal cases analysis findings highlighted that the major reasons of the direct payment issue being referred to court is due to the validity of the direct payment agreement between the disputant’s parties. Based on the cases heard before CIPAA enactment, the findings show that out of the three cases, the disputants went to litigation because of the legality of direct payment agreements. Most of the agreements were made orally. For cases analysed after CIPAA was enacted, the findings show that the disputant parties do not opt for adjudication and that the main contractors try to mitigate their responsibilities to the employer. The results from the questionnaires distributed established that, the direct payment clause could be successfully adopted for future use of the industry. Eventhough the AIAC standard form of contract has been formally introduced to the industry, but it is not widely used. From the findings of the questionnaire, it shows that with encouragement and support from the industry, direct payment clause of AIAC standard form of contract have the potential in reducing payment issues in the future. With the remodeling of standard form of contracts that are available in construction industry to be CIPAA compliance , it is hoped that this move may scale down the prevalent payment issues in Malaysian construction industry.

Significant Factors Affecting Civil Engineering Project Performance

Civil engineering projects trigger the economic growth by providing infrastructure facilities and job opportunities as well as attracting the attention of foreign investments. Due to their significant contributions toward the nation growth, the performance of civil engineering projects has become the upmost concern by the government. Unfortunately, many civil engineering projects in Malaysia are dominantly associated with unsatisfactory performance in terms of cost, time and quality of the delivered products. Therefore, this paper aims to identify the underlying causes which lead to unsatisfactory performance by determining the factors affecting civil engineering projects. The objective of this paper is to identify the civil engineering project characteristics and the quality of Standard Form of Contract (SFoC) adopted and the contractual behaviour of key participants of civil engineering project which affecting the performance. Questionnaires survey were conducted to undertake the research. 124 feedbacks received out of 300 questionnaires distributed to the G7 contractors registered under Construction Industry Development Board (CIDB) and consultant engineer registered under Board of Engineers Malaysia (BEM). The data was statistically analysed using SPSS 21 and descriptive analysis was used for rank assessment of factors. It was found that the top three (3) most significant factors affecting civil engineering project performance are delay in making payment, environment uncertainty and the clarity of SFoC. These factors belong to three categories i.e the contractual behaviour of key participants, project characteristics and the quality of SFoC category. Thus, these categories are paramount to be put more concern on the performance of civil engineering projects in Malaysia.

Significant Factors Affecting Civil Engineering Project Performance

Civil engineering projects trigger the economic growth by providing infrastructure facilities and job opportunities as well as attracting the attention of foreign investments. Due to their significant contributions toward the nation growth, the performance of civil engineering projects has become the upmost concern by the government. Unfortunately, many civil engineering projects in Malaysia are dominantly associated with unsatisfactory performance in terms of cost, time and quality of the delivered products. Therefore, this paper aims to identify the underlying causes which lead to unsatisfactory performance by determining the factors affecting civil engineering projects. The objective of this paper is to identify the civil engineering project characteristics and the quality of Standard Form of Contract (SFoC) adopted and the contractual behaviour of key participants of civil engineering project which affecting the performance. Questionnaires survey were conducted to undertake the research. 124 feedbacks received out of 300 questionnaires distributed to the G7 contractors registered under Construction Industry Development Board (CIDB) and consultant engineer registered under Board of Engineers Malaysia (BEM). The data was statistically analysed using SPSS 21 and descriptive analysis was used for rank assessment of factors. It was found that the top three (3) most significant factors affecting civil engineering project performance are delay in making payment, environment uncertainty and the clarity of SFoC. These factors belong to three categories i.e the contractual behaviour of key participants, project characteristics and the quality of SFoC category. Thus, these categories are paramount to be put more concern on the performance of civil engineering projects in Malaysia.