Prevention Principle In Construction Law

1879 Words8 Pages
Introduction Most of the construction contracts oblige the contractor to complete the works within a specified period of time failure to which, the employer will be entitled to sue for liquidated damages occasioned by the delay, at the percentage rate indicated in the contract. The contractor’s duty to complete by the contractual date will be relieved if an event not within his control happens entitling him to an extension of time. However, there might be obstacles and impediments to completion of the works, if the employer causes delay by his act or omission and the contract does not have a term providing for the award of extension of time. Such kind of delay caused by the employer is called ‘an act of prevention’. What is Prevention Principle?…show more content…
Prevention principle , is therefore, whereby a party may not enforce a contractual obligation against the other party where it has prevented the other party from performing that obligation. This is closely related to the principle that ‘no party may benefit from its own breach of contract’ and the equity maxim ‘he who comes into equity must come with clean hands’. Such delay by an employer could be in form of failure to give access to site, delay in issuance of approvals or drawings, instructing the contractor to perform additional works or suspend works. The construction contract is like any other contract guided by the basic principles of Contract Law, although, the obligations and responsibilities of the contracting parties can be extremely complex but to a large extent remain unchanged from one project to another. This means that if the contract does not cater for ways of addressing the delay, the employer will not be entitled to require the contractor to complete the works by the original contractual date and there will be no means in the contract for fixing a revised date. In such a scenario, the original contractual date ceases to exist and time becomes ‘at…show more content…
The FIDIC also has Conditions of Contract to be employed by those in the area of drafting such contracts. In Kenya, we have The Association of Consulting Engineers of Kenya (ACEK) which was formed in 1968 with the aim of promoting the Advancement of the Professionalism of Consulting Engineers by associating together for consultation and co-operation of those engineers whose work is of a purely consultative character. By Kenya being a member state to the global FIDIC, it has adopted the laws and regulations ascribed to it. The Constitution of Kenya, 2010 provides for national values and principles of governance to include; equity, equality, good governance, integrity, non-discrimination, transparency, accountability et al . This means that there should be equal bargaining power in contracts, thus the Constitution reiterates this aspect in generality. Prevention principle should be put into consideration when drafting construction contracts to cover the uncertainties that arise from a lack thereof by including the contractual date and extension of time

More about Prevention Principle In Construction Law

Open Document