2013 10 -31

Terms and conditions of contract

Jonathan Hazell31 October 2013

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• Don’t write too much down

• These slides are freely available

• There are notes too!

• But, if you’re compelled to scribble I’ve flagged the key messages

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The best things come in threes


• Hopefully, I can impress on you• Why you should bother


• Hopefully, I can impress on you• Why you should bother, and

• what you can do


• Hopefully, I can impress on you• Why you should bother, and

• what you can do, and

• when you should do it.



Why should you bother?

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Look after your world


Look after our world







So, how do you go about it?

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Manage expectations

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“You can’t always get what you want,

© Jonathan Hazell Scottish Branch seminar 31/10/13 Page 16http://www.gigslutz.co.uk/wp-content/uploads/2013/07/Rolling-Stones-Hyde-Park-2.jpg Writer: JAGGER, MICK / RICHARDS, KEITH Lyrics © ABKCO Music Inc.


but if you try sometimes you just

might find you get what you need”

Writer: JAGGER, MICK / RICHARDS, KEITH Lyrics © ABKCO Music Inc.

“You can’t always get what you want,

Define, design, deliver

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Beware Greeks bearing gifts

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“A verbal contract isn’t worth the paper it’s written on”

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Write things down

“As every lawyer knows, setting out clear Terms for any contract, at the outset, is essential if subsequent problems are to be avoided.”

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Write things down

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Be risk averse


Balance the risks

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De-risk your situation

Let’s start at the very beginning

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A promise or set of promises which the law will enforce.

• The normal method of enforcement is an action for damages for breach of contract, though in some cases the court may order performance by the party in default.

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What’s a contract?

Elements of a contract

1. Agreement An agreement is formed when one party accepts the offer of another and involves a "meeting of the minds".

2. Consideration Both parties must have provided consideration, i.e., each side must promise to give or do something for the other.

3. Intention to create legal relations The parties must have intended their agreement to have legal consequences.

The law will not concern itself with purely domestic or social agreements.


4. Capacity The parties must be legally capable of entering into a contract.

5. Consent The agreement must have been entered into freely.

Consent may be vitiated by duress or undue influence.

6. Legality The purpose of the agreement must not be illegal or contrary to public policy.


Elements of a contract


• The Association has supported the market place by developing standard terms and conditions• for contractors, and

• for consultants

http://www.trees.org.uk

. . . riding to the rescue

• Ts and Cs set the rights and obligations of the contracting parties, when a contract is awarded or entered into• general conditions are common to all types of

contracts

• special conditions are peculiar to a specific contract (such as contract change conditions, payment conditions, price variation clauses, penalties).

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Terms and conditions

• There’s very little need to write your own as Ts and Cs pre-exist • in the canon of work produced by the AA and

other industry bodies

• in the canon of work produced by the legal profession

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Terms and conditions

Civil Procedure Rules

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• Exactly what remains for you to do depends upon where you fit in the market place, which role are you trying to fulfil?• custodian, or

• client, or

• contractor, or

• consultant

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What steps are left for you?

• From my experience . . . for every instruction • what will you do?

• what will you accept responsibility for?

• what will you charge?


Define

“. . . I will . . .”

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“. . . I will . . .”

1. Under this proposal as the consultant I will:1. undertake a tree survey and provide a report against the requirements of

Design Stages A – D as referred to in Figure 1: The design and construction process and tree care of BS 5837:2012 Trees in relation to design, demolition and construction – Recommendations (referred to hereafter as BS 5837) at the site shown on [raw data] as supplied by [name] by [email/post] on [date received].


• From my experience . . . for every instruction • what will you do?

• what will you accept responsibility for?

• what will you charge?

• what will you not do?

• what will you not accept responsibility or liability for?


Define

“. . . I will not . . .”

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2. Under this proposal as the consultant I will not:

1. meet or contact the local planning authority’s officers to discuss the project that is the subject of the consultancy service; if required those actions will be considered to be a variation (see below)

2. accept any liability that may arise from third-party post-processing of the data that I have captured or recorded unless I have been given adequate opportunity to confirm the veracity of those outputs before they are forwarded to another party.


“. . . I will not . . .”

• From my experience . . . almost without exception• the client or customer may need firm guidance

• the process flow chart will be tortured

• you will learn something to use later


Define


Define – mean what you say

Design

• From my experience . . . start by looking the wrong way down the telescope

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Design

• From my experience . . . agree the deliverables


© Jonathan Hazell Scottish Branch seminar 31/10/13 Page 46James England – [email protected]

Design

• From my experience . . . only collect the information you need


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Design

• From my experience . . . don’t over-promise



Deliver

• From my experience . . . • this can be fraught

• control is vital

• a timetable is important

• flexibility can be a strength

• Make sure you have all the information you need

• Deliver client-ready data


When?

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When?


When?

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Tools for the job?

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Scottish Branch seminar 31/10/13

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Every picture tells a story

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Have you delivered?



“. . . when there is in prospect a good that is certain and an evil that is uncertain, it is wrong not to do the good for fear of the evil.”


Somerset Maugham, W. (1946) Then and now. London: Vintage 09 928686 6, p. 100

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Foreseeability

Client ready data


Don’t get carried away

• Don’t go beyond your competence or expertise

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• Do you need a sub-contractor?

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• Got the paperwork sorted?

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Wrapping up

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• Have you delivered to your client’s expectations?

• Have you answered the question that you framed?

• Have you got the data you need?

• Have you done your research?

• Do you have the references you need?

• Are you comfortable with your output?

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What was the question?

Remember your audience

1. Never use a metaphor, simile, or other figure of speech which you are used to seeing in print.

2. Never use a long word where a short one will do.

3. If it is possible to cut a word out, always cut it out.

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4. Never use the passive where you can use the active.

5. Never use a foreign phrase, a scientific word, or a jargon word if you can think of an everyday English equivalent.

6. Break any of these rules sooner than say anything outright barbarous.

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Remember your audience

• By invoicing you confirm that you have completed your commission and you are fully satisfied that the work meets the brief.

• BUT – queries you receive after the issue of your invoice will require you to answer them, these may not be variations.

• It is not unreasonable to expect you to do everything in your power to resolve any questions raised, which may mean a return site visit at your expense.

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Finally . . .

‘coz it says so . . .

“4. Limit of consultant’s liability

1. If any part of the consultancy services are performed negligently or in breach of the provisions of this agreement then at the request of the client (if the request is made within six months of the date of completion of the consultancy services) the consultant will re-perform the relevant part of the consultancy services subject to clauses 4.2 and 4.3 below.

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4. Limit of consultant’s liability

2. Except in the case of death or personal injury caused by the consultant's negligence the consultant's liability under or in connection with this agreement whether arising in contract tort breach of statutory duty or otherwise shall not exceed the greater of the consultant charges or the amount recoverable under the consultant's professional indemnity policy (if applicable).



4. Limit of consultant’s liability

3. The consultant shall not be liable for any loss or damage or expenses of any nature incurred or suffered by the client of an indirect or consequential nature including without limitation any economic loss, loss of profits turnover, business or goodwill.”




If it all goes pear shaped . . .

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. . . see you in court

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• I’ve put a model proposal for consultancy services on http://jhazell.com/?page_id=200, or

• I’ve also put an example of tender documents for tree work services there, but you’ll need to refer to both GN8 and BS3998 to understand it


So, some examples

Education

2013 10 -31