Q&As

What effect do the errata to the FIDIC 2017 contracts have on contracts that have already been entered into?

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Produced in partnership with Abdul-Lateef Jinadu of Keating Chambers
Published on LexisPSL on 26/02/2019

The following Construction Q&A produced in partnership with Abdul-Lateef Jinadu of Keating Chambers provides comprehensive and up to date legal information covering:

  • What effect do the errata to the FIDIC 2017 contracts have on contracts that have already been entered into?

The starting point is that the contract will be enforced in accordance with the version signed by the parties, ie with the errors still contained within it. However, the precise effect of the errata will vary on a clause-by-clause basis. If the error in the original version leads to an ambiguity or inconsistency then, pursuant to clause 1.5, the Engineer (or, in the case of the Silver Book, the Employer) can issue a clarification or instruction to address the ambiguity or inconsistency on the basis of the errata.

In the alternative, depending on the nature of the error which is corrected by the errata, a claim could be made for rectification by construction.

The locus classicus for the principle of rectification by construction can be found in East v Pantiles and, in particular, the judgment of Lord Justice Brightman where he said as follows:

‘It is clear on the authorities that a mistake in a written instrument can, in certain limited circumstances, be corrected as a matter of construction without obtaining a decree in an action for rectification. Two conditions must be satisfied: first, there must be a clear mistake

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