[ Questions answered: Legal advice ]


you have carried it out. That way, you have controlled the costs and, if proven wrong, have performed your contractual obligations and can chalk up the episode to experience.


The tender documents specifi ed a series of fi ttings that we knew we could supply cheaper from an alternative source. However, as we


neared completion, the contractor has asked for the products’ fi re, Kite Mark, and CE certifi cation. We know we are unable to supply these. What do we do? To supply something different to that specifi ed is a breach of contract – one the employer does not have to accept. In recent times, the JCT standard forms have recognised that circumstances may occur where breaches of this nature happen and some form of restitution is required. The JCT says that work not in accordance with the contract may, with the agreement of the employer, be allowed to remain and, that without issuing a variation, an appropriate deduction shall be made to the contract sum. Fire tests, or any other tests that contribute to the external verifi cation as to a product’s attributes, are expensive – and this explains, in part, why some apparently equivalent goods are more expensive than others. The employer, through his agents, would be quite entitled to insist on the test certifi cates being supplied. Delay and failure to provide any certifi cates, which are a condition precedent to the issuing of the Practical Completion Certifi cate, could cost the contracting team dearly.


We received a call from a customer’s daughter, who asked us to visit her mother in hospital, to discuss some work she wanted doing in


preparation for her return home. Do the ‘doorstepping regulations’ apply? The ‘Cancellation of Contracts


Regulations’ applies to contracts with consumers that are made:


a) During a visit by the trader to the consumer’s home or place of work or to the home of another individual; b) During an excursion organised by the trader away from his business premises; or c) After an offer made by the consumer during such a visit or excursion. For the regulations to apply, the contract


only needs to fulfi l one of the pre-conditions. Although the regulations are colloquially known as the ‘doorstepping regulations’, it is clear in this instance that the client, or their relative, instigated the enquiry – so no excursion or doorstepping took place. However, even though there was an agreement that may be confi rmed in writing, and that the action of the contract will


Break-in news: what’s the story?


The site has just been broken into and all our unfi xed materials have been stolen or vandalised. All the installed lights were wrenched off the walls and paint daubed on the recently decorated fi nishes. The contractor is saying that it’s our risk but we are not so sure. What do you suggest? The threat of theft increases with the rising value of second-hand copper and, although the works will be insured under the Joint Names Policy, it is unlikely the contractor will entertain a claim. Check your contract to see whether risk, and the need to insure on


an all-risks basis, has been included in the agreement. If it has, then you may have a problem and it is time to talk to your insurers. Consider, too, what your contract says about delays to the works, as you may need to formally notify that the event will affect your ability to complete by the date agreed. It is only when the contract is certifi ed practically complete, by the architect or supervising offi cer, that the risk transfers to the employer. If, as work proceeds, you need to rely on the contractor’s security measures, then this should be discussed prior to signing the contract.


not occur until sometime later, the regulations will apply to this agreement. It is important that the ‘notice to cancel’ required by the regulations is issued as soon as an agreement is likely. Also, without the safeguards of a written waiver of the seven days and the provision of a notice cancelling the agreement being issued, it is important that no work commences until the seven-day ‘cooling-off’ period has passed. If the regulations are followed, then should the works be cancelled, the trader will be able to recover his expenditure. If they are not followed, then until such time as they are, the contract remains unenforceable and the trader may be prosecuted and fi ned for breaking the law. If the


negotiations had broken down and, sometime later, a new agreement is forged, without the trader leaving his offi ce, then the regulations may not apply. We await the court’s guidance as to how long the passage of time must be. Currently, the advice is: when contracting with a consumer, issue the cancellation of contracts notice as prescribed by the regulations.


Your questions answered:


ECA members can receive free advice on commercial contract and legal issues from the ECA Commercial Contract and Legal department by calling 020 7313 4818.


July 2011 ECA Today 57


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