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Town House.

Commence ment and

by virtue of this agreement, shall be made accordingly; pro- XXXII. vided always, that the builders shall notify in writing to the

Building

Agreement for architects the discovery of any such error within days Enlarging a from the date hereof, after which time no question as to the accuracy or otherwise of the said bills of quantities shall be entertained (e).

7. The works are to be commenced on or before the day of - 18—, and to be executed in a proper and execution of substantial manner in every respect, and to be completed on the works. or before the

day of

next (with the exception of new dining-room and stable building above basement level, which are to be completed on or before the

day of -), in default whereof the said [builders] shall forfeit and pay to the said [owner] the sum of 501. per week as liquidated damages in each case, for every week during which the said works shall remain unfinished. Payments to be made by the said [owner], from time to time, as the works progress as hereinafter mentioned. The said specifications and drawings herein before mentioned are to be considered as embracing all the works necessary to be done in order to finish completely the several works therein mentioned, although the details may not be clearly and specifically expressed.

(c) This clause touches a most important question to con- Bills of tractors. It has, until recently, been the custom to refer in the quantit.es. contract to the plans and specifications only, the contractor being supplied by the architect with bills of quantities from which to make his tender. In such a case the builder takes the whole risk of the bills of quantities being inaccurate, or being prepared, as they often are, by incompetent persons, and may either find that he has lost the contract by making an extravagant tender to secure himself, or that his tender, having been accepted, he has to do work for which he has no prospect of being paid. This uncertainty, which has done great harm to the building trade, is obviated by the above condition, which is in every way fairer to contractor, architect and proprietor, and is being largely adopted by the trade. For the results of depending on the accuracy of bills of quantities, see Kemp v. Rose, 1 Giff. 258; Kimberley v. Dick, L. R., 13 Eq. 1; Scrivener v. Pask (Ex. Ch.), L. R., 1C. P. 715.

In the latter case the contractors attempted to recover where the bill of quantities was no part of the contract, and Blackburn, J., said, that to entitle the plaintiffs to recover they must make out three things; that the architect was the defendant's agent, that the architect was guilty of fraud or misrepresentation, and that the defendant knew of and sanctioned it. B.-VOL. I.

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tract on builders

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XXXII.

8. Complete copies of the drawings and specifications, signed Building Agrement for by the architects, shall be furnished by him to the builders,

Enlarging & for their own use, and shall be kept on the premises in charge
Town House.
Drawings and

of a competent foreman, who shall be constantly at the works Specificatious, and shall be employed by and shall represent the builders for

the purpose of receiving notices, orders, and instructions. Contract not 9. No part of the work shall be assigned or underlet unless to be assigned, with the consent in writing of the architects. In case of the Center of con- bankruptcy of the said [builders), or of their entering into

any composition with their creditors, or of their not proceedfrankruptcy, ing with the works with sufficient dispatch, the architects

sluall be at liberty, after days' notice in writing to the said (builters], to employ other persons to complete the works, and to take possession of all the material on the site, and to devluet the cost of completion from the sum then due under or by virtue of this agreement to the said [builders). The said (ouwer) shall not be liable for any loss of materials, or

for injury done to them during the execution of the works. Payment. 10. The said consideration money, or sum of £

shall be paid by instalments, as the works progress, as follows,
subject as hereinafter mentioned, that is to say: On the
day of
, 184, £4

day of

184—; on the
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; and on the

184 the balance, £-; but no payment made as aforesaid shall exceed io per cent, on the value of the work done up to the time of such payment, such value to be determined by

the anchitects Injunction . 11. In the event of any proceedings for an injunction or

otherwise being instituted and successfully maintained against the said ener) in respect of the said works or new buildings, or any part thereof, the said exter shall only be liable to pay to the said in the actual value of the works execute and properly prepared up to the date of the successful termination of such prxtxlings and the consequent stoppage of the works; (the amunt separable to be determined by the architenis alone, whose decision shall be final in the matter.? The sud (cmner shall not be liable in daniagu's or etherwise to the said 3 in respect of any loss or silegrad lass esused to them by the stoppage of such wurš, ner for any materials prrided them in anticipation of such works being carried througar otherwise, except as

; on the

day of day of

Town House.

aforesaid : Provided, nevertheless, that nothing herein con- XXXII. tained shall affect this agreement with reference to any works

Building

Agreement for or buildings which shall not be included in such proceedings, Enlarging a and stopped as aforesaid.

12. All questions, disputes, or differences (if any) which Settlement of shall arise between the parties hereto touching any matter or

disputes by

architects (d). thing relating to this agreement, shall be submitted to the sole and final determination and award of the architects, and the said parties hereto respectively shall and will abide by and perform the said determination and award, to be made in writing, under the hands and seals of the architects, and to be delivered to the said parties hereto: And the submission hereby made may, at the option and the expense of either of

(d) This is the clause ordinarily inserted in a contract of this nature.

But there are many reasons why the architect is not an independent arbitrator between the builder and the proprietor in all cases, especially where the architect has given a guarantee to his client that the cost of the building shall not exceed a certain sum. See Kemp v. Rose, 1 Giff. 258; Kimberley v. Dick, L. R., 13 Eq. 1.

The following clause is therefore suggested as an alternative :-
In case any question, dispute, or difference shall arise Reference to

arbitration. between the said [owner], or the architects on his behalf, and the said [builders), as to what additions, if any, ought in fairness to be made to the amount of the said consideration money, by reason of the works being delayed through no fault of the said [builders), or by reason or on account of any directions or requisitions of the architects, involving increased cost to the said [builders], beyond the cost properly attending the carrying out this contract according to the signed drawings and specifications, or as to the works having been duly completed, or as to the construction of these presents, or as to any other matter or thing arising under or out of this contract, except as to matters left during the progress of the works, to the sole decision or requisition of the architects under clause

or in case the said [builders] shall be dissatisfied with any certificate of the architects, or in case they shall withhold or not give any certificate to which the contractors may be entitled, then such question, dispute, or difference, or such certificate, or the value or matter which should be certified, as the case may be, shall be from time to

XXXII. the parties who shall so desire, be made a rule of her Agreement for Majesty's High Court of Justice. Enlarging a As WITXESS, &c. Town House.

XXXIII. BUILDING AGREEJENT between

CONTRACTORS and a COMMITTEE for the Erection

of a Public BUILDING (a).

THIS AGREEMENT made the Parties.

day of 18—, BETWEEN A. B. and C. D., of &c., builders (hereinafter called the contractors), of the one part; and E. F., of &c. G. H., of &c., and I. K., of &c. (hereinafter called the committee), of the other part, WITNESSETH that for the consideration hereinafter stated the contractors hereby agree

with the committee, as follows:Contractors to

1. The contractors will build and complete, within erect build. ings accor- months from the time when they are put in possession of the ding to plans, ground, for the sum of £ &c.

in the

- a (church) at county of -, according to the plans and specifications

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time referred to the arbitration and final decision of
architect, or in the event of his death or unwillingness to act,
then of - architect, and in the event of his death or
unwillingness to act, then of an architect, being a Fellow of
the Royal Institute of British Architects, to be appointed on
the request of either party by the President for the time
being of such institute, and the award of such referee shall be
equivalent to a certificate of the architect, and the contractors
shall be paid accordingly. Such award or certificate may be
made a rule of Her Majesty's High Court of Justice, or of
any Court of Record in England. The costs of the arbitra-
tion and award shall be in discretion of the arbitrator.

AS WITNESS, &c.

(a) This Precedent is inserted by the kind permission of Sir Edmund Beckett, Bart., Q.C., and taken (with slight modification) from his “Book on Building,” p. 37. This form of contract has been used, with slight variations, in numerous building operations, including those recently carried out at Lincoln's Inn. It may readily be adapted to the case of a single builder or employer.

and directions from time to time of Mr. the architect, XXXIII. or such other architect as may from time to time be em

Building

Agreement for ployed by the committee, including all things which in the Erection of a

Public opinion of the architect may fairly be inferred from such

Building. plans and specifications to be intended without being actually specified.

2. The contractors shall also execute all such alterations Alterations and additional works as shall be ordered by the architect, works.

and additional with the consent of the committee or by the committee. But if the contractors shall be of opinion that any such alteration or addition will cause additional expense, they shall not be bound to execute the same without an order in writing from the committee, stating the price which is either agreed on or certified by the architect as the proper sum to be allowed for the same, after giving credit for the value of any omissions which have been ordered, and such order shall state also the extension of time (if any) which is to be granted by reason thereof. And neither the contractors, nor any sub-contractor under them, shall be entitled to recover from the committee, or any member thereof, any more than the said sum of £ -, together with the amount of the sums contained in all such orders as last aforesaid ; nor shall this clause be held to have been waived in consequence of anything to be done by the committee, or any member thereof, except an express waiver in writing, and then only as to the particular things included therein. The contractors shall, if required for the valuation of extras, produce the bill of quantities, with the prices attached thereto, on which their tender was based.

3. The contractors shall follow the directions of the architect Architect's in all respects, and of the clerk of the works in his absence, subject to the last preceding clause ; but neither of them shall be considered for any purpose the agent of the committee, nor have any power to act contrary to their directions. And the whole of the work shall be done to the satisfaction of the architect. But the passing or certifying of any work by the clerk of the works, or by the architect himself, shall not exempt the contractors from liability to replace the same if it be afterwards discovered to have been done ill, or not according to the plans and specifications, either in execution or materials. 4. If anything shall be discovered to have been done in Defects in

work to be an inferior way, or contrary to the specification or plans, made good.

powers.

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