Do contracts typically contain strict provisions governing notices of claims for additional time and money which act as conditions precedent to bringing claims? Does your jurisdiction recognise such notices as conditions precedent?
The contractual notice of claims procedures within NS 8405 and NS 8407 are strict. Notices of claims have to be made 'without undue delay' following the occurrence of the event. If the contractor fails to do so, the claim will may be rejected for untimely notice.
Similarly, if upon receipt of a notice of claim the employer wishes to fully or partly reject the claim, it has to give notice of such rejection 'without undue delay' following the receipt of the claim.
Yes, such provisions are common and are generally upheld in accordance with their terms.
The general limitation period under Swedish law is 10 years. There is also a general principle in Swedish law that a party who wants to make a claim or exercise a remedy must notify the other party within a reasonable time (which is usually months rather than weeks). The Swedish Supreme Court has dismissed claims in cases where a contract party has waited for several years to exercise a contract remedy. The parties are free to enter into agreements on time-bars and other limitations. The dominant standard forms (AB 04 and ABT 06) contain several provisions on time-bars for claims.
Yes, all forms of construction contracts in Hong Kong contain notice requirements. The wording of the contract dictates how the courts will interpret notice provisions, either as condition precedents or mere obligations.
The Hong Kong courts have not entertained the application/extension of the prevention principle that was accepted in the Australian Gaymark case, which would prevent the employer from claiming liquidated damages where the employer’s conduct caused delay, notwithstanding that the contractor had failed to give notice and thereby deprived itself of the chance to secure an extension of time for that delay.
English contracts differ on this point. Where time bar provisions are clearly expressed, the English courts will recognise them as conditions precedent to claims, even if the consequences are draconian.
For example, the NEC standard forms provide that notice of a claim for additional time and money must be made within 8 weeks of becoming aware of the event. The FIDIC provisions on notices are considered to be conditions precedent.
The JCT provisions on notices of extensions of time claims are not considered to be conditions precedent to bringing claims, but in any event, the contract administrator has a duty to reach a decision on the appropriate extension of time that is fair and reasonable.
Standard form construction contracts in the United States generally provide a framework for the Contractor to give notice to the relevant party administering the contract of a claim or change event that gives rise to possible additional entitlement for time and/or costs. Contractual notice provisions are critical to the claims process by triggering the contractor’s rights to pursue additional contractual entitlements based on known conditions. Thus, the act of providing notice imparts fairness into the contract, whereby the owner is placed on notice of changed circumstances or conditions that trigger relevant contract provisions, and permit the owner a timeframe in which to respond.
Contract notice provisions typically provide a defined time frame, which varies by contract. Generally, notice provisions range from 7 to 15 days. Contractors favor longer notice periods, while owners favor shorter periods. The defined time frames are frequently a source of pre-contract negotiation, as both the owner and contractor want to employ notice provisions that are advantageous to their position without limiting any rights. Thus, any notice provisions less than 7 days are usually modified during negotiation, as the shorter the time to act, the more unreasonable the provision. Strict enforcement of notice provisions can vary among states, with some states applying a strict construction and other states taking a more liberal stance where fairness considerations are present.
Contracts do not contain typically any strict provisions governing notices of claims for additional time and money which act as conditions precedent to bringing claims. The local jurisdiction does not recognise such notices as conditions precedent.