- Check your contract—there may be no ‘Plan B’ (Dragados (UK) Ltd v DC Eifeket Aggregates AS)
- What are the practical implications of this case?
- What was the background?
- What did the court decide?
- Interpretation argument
- Personal bar argument
- Case details
Construction analysis: In a contract (under Scots Law) for the supply of materials, DC Eifeket Aggregates AS (DCE) proceeded under an erroneous belief that the contract required the supply of ‘category B’ rock (Type B) rather than ‘category A’ rock (Type A). Having proceeded to supply Type B, DCE was sued for breach of the obligation to supply Type A. DCE averred that the parties had conducted negotiations on the basis that Type B was going to be supplied, and thereafter that DCE had been paid for the supply of Type B. It argued, based on these averments, that: (i) properly construed, the contract required the supply of Type B, or, alternatively; (ii) Dragados (UK) Ltd (DUK) was now personally barred from asserting an entitlement to Type A. Both defences were found irrelevant at a legal debate. The case illustrates the importance of reviewing the technical requirements under a contract for materials, and the limited scope for a ‘plan B’ if you are faced with an action for implement or damages. Written by Nick McAndrew, advocate, Ampersand Advocates.
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