The problem in writing a qualification is that if it is worded very generally it may be interpreted restrictively by the courts so as to alter the other contract terms as little as possible, in accordance with the principle of reconciling and giving effect to all the terms of the contract as far as possible (p. 43 (e)). If, on the other hand, the qualification is specific, some points in the contract documents which should be changed may be missed inadvertently. The solution is a general clause followed by some such phrase as “in particular but not so as to affect the generality of the foregoing” or “by way of illustration but not enumeration” or (if that legal jargon is too much) simply “in particular” or “by way of illustration only”, and a list of clauses in the contract which are to be altered, for which the draftsman should go through even the standard contract forms clause by clause rather than rely on his memory. Since, regrettable as it is, lawyers have a monopoly of ultimately interpreting qualifications, of all things tender qualifications should be settled by lawyers (p. 302). y
12. FAIR WAGES RESOLUTION. See p. 122 for the Resolution. If this certificate of compliance with the Resolution is untrue the employer is entitled to end the contract and to damages.
13. SECTION TO BE COMPLETED EARLY. For the importance of a clear and accurate description of the section, despite this footnote to the form of tender, refer to p.98, N. 3. It may be necessary to specify that access and services to a section are to be completed with it.
14. PERCENTAGE FOR ADJUSTMENT OF P.C. SUMS. For the contractor’s right to this percentage, in some cases even if a P.C. item is omitted from the contract, see p. 240, N. 7.
AGREEMENT
The tender and acceptance provide a satisfactory binding contract (see p. 17, N. 9) to which the execution of this agreement under seal adds nothing, except an extra six years for limitation of actions (p. 430).
If it is used, a copy of the agreement should be executed for each party, and copies of the other contract documents initialed (including the price variation sheets, p. 312).
For matters which may affect the validity of the agreement see p. 5 (e).
1. “THE PAYMENTS TO BE MADE”. There is no initial contract price—p. 12, N. 4. For a key to the payments to which the contractor may become entitled see ch. 11. For deductions from payments see p. 269.
2. THE WRITTEN ACCEPTANCE OF TENDER is a contract document by cl.1(1)(e) of the Conditions, although it is not mentioned here.
3. EXECUTION. This first form of execution under seal is for a party which is a limited company or other corporation, the second for an individual.
(y) In this case—as almost invariably happens with problems of interpretation—two rules conflict, see p. 44 (ii), and it may be very difficult to forecast how a judge will balance them.
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