Employer’s Obligation

1) Obligation not to interfere with contractor’s performance

a. Barque Quilpue Ltd v Brown (1904) 2 KB 261
i. “… in this contract, as in every other, there is an implied contract by each party that he will not do anything to prevent the
other party from performing the contract or to delay him in performing it…”
b. Sources of potential interference
i. Failures to provide access to the site
ii. Sufficient space and work fronts
iii. necessary dwg., instructions and permits, etc.

2) Obligation to grant access (to give complete site possession)

a. The Queen in Rights of Canada v Walter Cabott Construction Ltd (1975) 21 BLR 26
i. Walter Cabott Construction Ltd is a contractor which entered into a contract (Contract 1) with the 67 Crown to construct a
hatchery building. Contract 1 was one of six contracts for the construction project. Contract No.3 is the construction of fish
way and two new holding pond which cannot be built without encroaching on the area which would ordinarily have been
reserved for the construction of the hatchery building. Thus, the contractor therefore tendered for the Contract 3 to
mitigate the effect that it would have under Contract 1. Basically, Contract 4 also would interfere with Contract 1 but it was
given to another contractor to do it and therefore Cabott had commenced the proceeding against the Crown.
ii. The trial judge had made a decision in favour of the contractor and allowed the contractor be awarded with the damages.
However, the employer, the Crown appealed contending that there was no breach under Contract 1 or Contract 3. The
Crown also contended that, there was also no implied obligation of any kind by or on behalf of her Majesty shall arise
from anything in the contract. The court held that, the giving possession of site possession should be more on the actual
site upon which a structure stands is required to erect that structure. The crown was therefore had committed a breach of
Contract No. 1 in denying the contractor a portion of the site of the work which it was obliged to furnish to permit.
iii. As a result, the employer is under an implied obligation to give a possession and access of site to the contractor in order
for the contractor to do his work in accordance with the contract and the extent in giving possession should have a
sufficient degree of uninterrupted and exclusive possession of site to permit it to carry out its work unimpeded and in the
manner of its choice.
b. LRE Engineering v Otto Simon Carves 24 BLR 131
i. This was an appeal from an arbitrator's award. LRE were employed as sub-contractors to OSC. Clause 24(1) of OSC's Special
Conditions of Contract required OSC to afford to LRE 'access to and possession of the site... in proper time for the
execution of the work'. As a consequence of a strike and picketing at the site, LRE was denied access to the site and could
not complete the works until the strike was over. LRE contended that the denial of access rendered OSC in breach of clause
24(1).
ii. It was held, affirming the decision of the arbitrator that:
 the natural and ordinary meaning of the requirement 'to afford access' in clause 24(1) meant that there should be a
physical means of access and, at the relevant time, the contractor had the opportunity to enter by means of that
access;
 on the facts there was a physical means of access and OSC did provide LRE with the opportunity of entering the site
by such means of access; and
 the fact that a third party prevented LRE from taking advantage of the opportunity did not amount to any breach of
the obligation undertaken by OSC to afford access.
c. Freemen & Sons v Hensler (1900)
 i. An employer’s duty (of co-operation) to give the contractor possession of the site within reasonable time to enable him to
carry out and complete the work on the completion date. For a new project, the site should be given to the contractor
within a reasonable time and with a sufficient uninterrupted possession to allow the contractor to perform his obligations.

3) Obligation to provide those things necessary to progress the works efficiently

a. Insufficient dwg. and instruction at the beginning of a project – will be required as the work progress
i. During the progress of the work, the general rule is that the contractor can decide how he will perform the works subject to
any express requirements in the contract but, must give notice to the employer
ii. Contractor is entitled to complete the works before the due date for completion stated in the contract, not normally entitled
to require the employer to provide information at a rate to enable him to complete early
b. Often the contractor can gain access to the site and has adequate space and drawing but still cannot progress the work –
necessary preparatory works to be done by others have not yet been completed

4) Obligation to obtain permits

a. Required before certain classes of work can commence – permits relating to the movements or use of specific item of plant used
on site – obtained by contractor

5) Obligation to appoint certifiers, nominated sub-contractor, etc.

a. Contract is unworkable if a certifier is not in place
b. There will be an implied undertaking on the employer’s part to make the nomination in reasonable time and in accordance with
the terms of the contract

6) Obligation to pay against architects’ certificate

a. Most modern contract provide for payment by instalment as work proceeds, normally against architect’s certificates
b. Failure to make payment does not entitle the contractor to repudiate the contract – Remedy: sue on the certificate as it
becomes a debt due from the employer
c. Holland Hannen & Cubitts Ltd v Welsh Health Technical Services Organization (1981)
i. An entire contract is one in which what is described as "complete performance" by one party is a condition precedent to the
liability of the other party.
ii. Whether a contract is an entire one is a matter of construction; it depends upon what the parties agreed. A lump sum
contract is not necessarily an entire contract. A contract providing for interim payments, for example, as work proceeds, but
for retention money to be held until completion is usually entire as to the retention moneys, but not necessarily the interim
payments.
iii. The test of complete performance for the purposes of an entire contract is in fact "substantial performance".
iv. What is substantial is not to be determined on a comparison of cost of work done and work omitted or done badly.
v. If a party abandons performance of the contract, he cannot recover payment for work which he has completed.
vi. If a party has done something different from that which he contracted to perform, then, however valuable his work, he
cannot claim to have performed substantially.
vii. If a party is prevented from performing his contract by default of the other party, he is excused from performance and may
recover damages.
viii. Parties may agree that, in return for one party performing certain obligations, the other will pay to him a quantum meruit.
ix. A contract for payment of a quantum meruit may be made in the same way as any other type of contract, including conduct.
x. A contract for a quantum meruit will not readily be inferred from the actions of a landowner in using something which has
become physically attached to his land.
xi. There may be circumstances in which, even though a special contract has not been performed there may arise a new or
substituted contract; it is a matter of evidence.