Good timing is an area to build on

Few sectors are more time-aware than food and drink. Everything from supply of raw materials to delivery to consumer is time-critical, and this includes the delivery of a new warehouse or distribution facility. The difficulty is that the law is not always clear or comprehensible, and on critical issues a lack of appreciation of its anomalies can avoid major problems. Some of the worst are:

l Slow working. Unless the agreement states otherwise, the contractor building or refurbishing your facility will be entitled to plan, programme and organise his work in whatever way he chooses. Unless there is an express provision to the contrary, the wholesale company has no remedy for slow progress prior to the specified completion date. Also, if no completion date is specified, there is only an obligation on the contractor to complete within a reasonable time. Time is said to be “at large”.

l Reasonable period of time. If the contract refers to a “reasonable period of time” for executing an obligation, then what is “reasonable” is determined by circumstances existing at the time the works were carried out a strictly objective test on the actual facts. Note that this excludes circumstances under the control of the contractor.

l Time of the essence. The phrase “time is of the essence” is one which causes confusion. It is a very onerous obligation, and contractors are wary of taking it on, because breach of it permits you to treat the contract as terminated. Without it, breach of time stipulations only allows you to claim damages for your losses. In building contracts time is not generally of the essence (unlike, for example, shipping contracts) and so if it is required that the contractor is put under this obligation it needs to be incorporated as an express term of the contract.

© D Rolfe 2009

Derryn Rolfe is a partner in Calnan Cox solicitors. She can be contacted at dpr@calnancox.co.uk or on 01604 882213

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