Many construction contracts involve a huge number of documents, which sometimes have conflicting terms. In such cases, the liabilities that a party assumes under a contract will depend on which of the various terms prevail over the others (“the battle of the Forms”).
In the recent case of Mouchel Limited v Van Oord (UK) Ltd, a clause within the main contractors terms that required a sub-contractor to ‘check the design and accept responsibility’ for the works it carried out and to use ‘reasonable care and diligence’ in designing its works was deemed not to make the sub-contractor liable when the works were found to be in need of considerable corrections.
The sub-contractor had submitted a tender document for the work and this formed part of the contract. Within this document there was a clause stating that the sub-contractor was ‘not responsible for the design of any of the …works’. This clause prevailed over the other party’s clause and was sufficient to absolve the sub-contractor from liability for the defective design. Doubtless the main contractor received a rather nasty surprise.
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