Construction analysis: The Outer House of the Court of Session found that a series of contracts between a contractor and a supplier, entered into under a framework agreement, was not subject to either party’s standard terms and conditions—even though the contractual documents referred to both sets of terms. The court found that the parties intended for references to their own standard terms to be ignored, and for the contracts to be governed instead by a third set of terms specified in the framework agreement.

This week's edition of Construction weekly highlights includes an analysis of the key features of the Joint Contracts Tribunal (JCT) Target Cost Contract 2024 suite, publication of four guides by the Royal Institute of British Architects (RIBA) on the JCT Target Cost Contract 2024 suite, proposed reforms by the Ministry of Housing, Communities and Local Government (MHCLG) to the Building Safety Regulator (BSR) aimed at accelerating housebuilding and remediation work, guidance from MHCLG for Responsible Entities on the Developer Remediation Contract, the launch of the UK Climate Resilience Roadmap by UK Green Building Council (UKGBC), and a consultation from the Single Source Regulations Office (SSRO) on proposed updates to the baseline profit rate methodology for defence-related single source contracts.

What are fluctuations? Fluctuations provisions are clauses in construction contracts that allow the contract sum to be adjusted to take account of changes to the price of labour, materials and other costs throughout a construction project. By way of example, if a contractor tenders on the basis of prices current at the time of tender, and then inflation results in the cost of procuring the works increasing during the project, the contractor bears that cost. Where there are no fluctuations provisions in the building contract the contractor is deemed therefore to have taken account of inflation and the risk of any inflationary increases in its pricing. On the other hand, where there is no fluctuations clause, if prices go down, a contractor could benefit from the reduced costs. Where fluctuations clauses are included in a construction contract, the contractor could be entitled to be reimbursed some or all of any additional costs caused by rising prices. Calculating the increased cost may be achieved by using an index based formula, or by using a published list of market

This Practice Note highlights key issues for solicitors arising out of the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (CCR 2013), SI 2013/3134 in relation to costs and funding. The Practice Note is intended to highlight the key issues for solicitors arising out of the regulations in relation to costs and funding. It is not intended to review these regulations more generally. It covers three different types of contract being distance, off-premises and on-premises along with issues to be considered. Prior to CCR 2013 coming into force the following regulations applied—Cancellation of Contracts made in a Consumer’s Home or Place of Work etc Regulations 2008 (Cancellation Regulations 2008), SI 2008/1816 and the Consumer Protection (Distance Selling) Regulations 2000, SI 2000/2334. It should be noted that following the UK's departure from the EU, CCR 2013, SI 2013/3134 continue to apply, but the following minor amendments are made to the regulations, as set out in the Consumer Protection (Amendment etc) (EU Exit) Regulations

Offer, acceptance, and invitation to treat Whether a seller can refuse to honour an incorrect price depends on whether a contract has been formed. The display of goods on a website is generally considered an invitation to treat, meaning that a consumer placing an order constitutes an offer, and the seller’s acceptance occurs at a later stage; although the time at which acceptance takes place can be complicated and the seller may have accepted the consumer’s offer before the seller realises that the price is incorrect. See: LNB News 21/03/2003 41 for an example of such difficulties. The timing of acceptance can be critical, as a contract may be formed before the seller realises the pricing error. For example, online terms and conditions often specify that a contract is formed when a confirmation email is sent to the consumer. See clause 4 of Precedent: Online terms and conditions for the supply of goods—business-to-consumer for an example. To mitigate risks, sellers should structure their contract formation process

We are not aware of any best practice recommendations to have a separate Terms of Business (TOB) for consumer and commercial clients. The cancellation rights element of the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (CCR 2013), SI 2013/3134, apply if you enter into an off-premises (What is an off-premises contract?) or distance (What is a distance contract?) contract with a consumer client (Which clients do the regulations apply to?). See Practice Note: Different types of cancellation rights—law firms. At the heart of CCR 2013 is the duty to give the client: • notice of their right to cancel (Instructions for cancellation), and • a prescribed cancellation form These are separate documents, which can be found in CCR 2013, SI 2013/3134, Sch 3—see Precedents: Instructions for cancellation—non-digital

Stop Press: On 24 February 2025, the main provisions of the Public Procurement Act 2023 (PA 2023) come into force. We are reviewing and updating our content accordingly. Note, however, that procurements begun on or after 24 February must be carried out under PA 2023, whereas those begun under the previous legislation (the Public Contracts Regulations 2015 (PCR 2015), the Utilities Contracts Regulations 2016, the Concession Regulations 2016, and the Defence and Security Public Contracts Regulations 2011) must continue to be procured and managed under that legislation. For background reading, see Practice Note: Introduction to the Procurement Act 2023—PA 2023. This Practice Note looks at call-off procedures in framework agreements in the construction industry. It looks principally at how contracts are called-off in the private sector but also considers call-off procedures under framework agreements in the public sector with links to more detailed content specifically relating to that sector. Framework agreements are used in the construction industry by both public and private sector clients to procure works, services and supplies (see Practice Note: Introduction to framework agreements

This Deed is made on [insert date] day of [insert month] 20[insert year] Parties 1 [insert name] (Company Number [insert number]) whose registered office is at [insert address] (the ‘Contractor’); [and] 2 [insert name] (Company Number [insert number]) whose registered office is at [insert address] (the ‘Beneficiary’ which expression shall include successors in title and any permitted assignee)[; and OR .] 3 [[insert name] (Company Number [insert number]) whose registered office is at [insert address] (the ‘Employer’).] Whereas (A) [[insert name of Employer] (Company Number [insert number]) whose registered office is at [registered office of Employer] (the ‘Employer’) OR The Employer] has entered into a building contract dated [insert date] with the Contractor (the ‘Building Contract’) relating to the [design and ]construction of certain works as defined under the Building Contract (the ‘Works’) in connection with the development known as [insert name] (the ‘Project’). (B) The Beneficiary has agreed to [provide finance in connection with OR purchase a freehold interest in OR enter into a lease for [insert details] at] the Project. (C) The Contractor has agreed to execute this Deed in favour of the Beneficiary.

Paragraph 1—Appointment and powers This paragraph 1 sets out the extent of the attorney’s authority in full (ie the attorney may do any act or execute any document as is necessary or desirable in connection with the relevant transaction). It is drafted in wide terms and reference is then made to specific actions and documents which do not limit the general power. It will need to be adapted to fit the transaction. Ensure that the powers specified cover everything the attorney will or may need to do. The donor must obviously have faith in the ability of the attorney to carry out all of the relevant powers granted under the document, otherwise there would be little point entering into the power of attorney. 1 Appointment and powers We, [insert name of company] a company incorporated in [Ireland] under number [insert registered number] whose registered office is at [insert address] (Company), HEREBY APPOINT on [insert date] [insert name of attorney] of [insert address of attorney] to be the Company’s true and

This Practice Note links to content on the proper execution of deeds and simple contracts by partnerships and limited partnerships, including guidance and Precedent clauses. Partnerships Execution formalities and clauses For guidance on the proper execution of simple contracts and deeds for

What are the obligations to use the model cancellation form? The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, SI 2013/3134 (CCR 2013) set out a number of obligations on traders regarding the form that they must provide to consumers so they (eg consumers) can cancel the contract. The CCR 2013, which came into force on 13 June 2014, state at reg 13(1)(b): ‘before the consumer is bound by distance contract, the trader ... must give or make available to the consumer a cancellation form as set out in Part B of Schedule 3.’ The cancellation form in Part B of Schedule 3 to the CCR 2013 is known as the model cancellation form and is set out below. The form only applies where a right to cancel exists. In addition, regulation 32(3) of the CCR 2013 states that the consumer may use the model cancellation form but they are not obliged to do so. Regulation

What is a registered society? See Practice Note: Co-operative and community benefit societies and Commentary: Registered societies: Halsbury's Laws of England [881]. Authority to contract As corporations are not natural persons, they must act through either a resolution of its members, by its directors or other agents. As a corporation has separate legal status, it is possible to make a distinction between instruments executed by the corporation itself (eg using its common seal where available), or on behalf of the corporation (eg by a person acting under its authority). See Practice Note: Forming enforceable contracts—authority—Corporations. Execution of simple contract By the registered society A registered society which has a common seal may execute a document by affixing its common seal to it (see option 1 below). However, the Corporate Bodies’ Contracts Act 1960 (CBCA 1960), which removed the requirement that some contracts with corporations be under seal, applies