Vous êtes sur la page 1sur 8

Time at large

Time for completion of the Works is said to be at large when the Contractors
obligation to complete the Works within the specified time or certified extended
time is lost. That is to say, the Contractor is no longer bound by the contract
provision that he has to complete the Works by a certain date or extended date. The
obligation of the Contractor is then to complete the Works within what is called
reasonable time.
Time for completion of the Works can be said to be, or made, at large in the
following five situations:

(a) No time for completion is fixed in the contract;


(b) Improper administration or misapplication of the extension of time provision in the contract;
(c) Waiver of time requirements;
(d) The Employers interference in the certification process;
(e) When the extension of time provision does not confer power on the
Engineer/Architect/S.O. to extend the time for completion of the Works on the occurrence of
event or events which fall(s) within the obligation of the Employer.
The significant consequence of time for completion being at large is that the
liquidated damages clause in the contract becomes inoperative and the Employer
cannot rely on this liquidated damages clause to impose liquidated damages onto
the Contractor.16 The other significance when time for completion is at large is that
the original completion date or the contractually certified extended completion date
no longer binds the Contractor. The Contractors remaining obligation is to complete
the Works within what is called reasonable time the meaning of which we now
turn.
1. NO TIME NOR DATE FIXED IN THE CONTRACT
Completion on time is important in modern construction contracts. If the project is late the Employers
return on his investment is reduced and the Contractors costs frequently increased. Many construction
contracts and Standard Forms of contract usually place an obligation on the contractor to complete the
works by a specified completion date or within a specified period.
If no date or period is fixed by the contract then the objective intention of the parties must be ascertained.
In the case of a contract under the Supply of Goods and Services Act 1982, if the date is not fixed by a
course of dealing between the parties, a term will be implied that the contractors obligation is to complete
within a reasonable time (Section 14(1)).

2. Time or Date Ceases to Apply

Many events may prevent completion on time including adverse weather conditions,
labour or material shortages, strikes or local disturbances, lack of information or
plain human error, and interference, hindrance or prevention by the Employer. The
rights and remedies of the parties depend upon the apportionment of liability for
the delay and the express terms of the contract which may limit the remedies
otherwise available. If part of the delay in completion is at the risk of the contractor,
then to that extent the Employer is entitled to damages for breach of the obligation
to complete on time. If the contract makes proper provision for liquidated damages,
then the measure of damages is the stated sums of liquidated damages. If on the
other hand the delay is at the risk of the Employer then the contractor will be
entitled to damages for breach of the particular obligation causing the delay. If
instead the risk event was not caused by breach of contract then the contractors
remedy will only be as stated in the contract.
Standard forms of contract apportion liability for delay through extension of time
clauses. If the contractor is entitled to an extension of time for an expressly stated
event, then the Employer carries the risk, otherwise it lies with the contractor.
Which party carries the risk of the additional cost for the delay will depend upon the
other terms of the contract.
The wording of the extension of time clause will determine when and the extent to
which the risk of delay passes from the contractor to Employer. The description of
the particular event is all important. If notices and/or substantiation are a condition
of an entitlement to an extension of time, then the risk will only pass to the
Employer if and/or when the contractor provides that information.
Some events that cause delay are not under the control of either party, such as
weather or local disturbances. They are neutral events. The event may however be
caused by one of the parties. The Employer may for instance order extra work or
otherwise vary the contract. The Employer, in breach of contract, may not give
possession of the site or may not provide information at a particular date to allow
the contractor to complete on time. The consequence may be to so delay the
contractor that he is further delayed by the neutral event, which would not have
occurred but for the original delay.
Both the order of variations and the Employers breaches of contract are acts of
prevention that may delay the contractor. If the extension of time clause does not
entitle the contractor to have the time for completion extended for delays actually
caused by such acts of prevention, then the contractor will no longer be under an
obligation to complete within the specified period. His obligation is instead only to
complete within a reasonable period. Time is said to be at large. What is a
reasonable time is a question of fact and all the factual circumstances must be
taken into account.

If the contract provides for the deduction of liquidated damages should the
contractor overrun the time for completion, then the provision will no longer be
enforceable when time is at large. There is no specific certain date from which
liquidated damages can run. The Employer will then only be entitled to damages
that he can prove in the normal way if he can establish that the contractor has not
completed within a reasonable time.
4. Acts of Prevention
In modern construction contracts, extension of time clauses are carefully drafted to
entitle the contractor to extension of the period of completion for any acts of
prevention by the Employer. The extension of time clauses are for the benefit of the
Employer. They keep alive the contractors obligation to complete by a specified
date and preserve the Employers right to deduct liquidated damages for breach of
that obligation.
In order to protect the Employers right to liquidated damages, Extension of Time
Clauses need to provide a contractual remedy for the expected range of acts of
prevention by the Employer.
5. Waiver or Election
Time may become at large if the original obligation to complete is waived.
In Charles Rickards Ltd v Oppenheim [1950], a Rolls Royce motor car was not
built by the agreed delivery date, but new dates agreed. Eventually, Oppenheim
gave written notice to Rickards stating that unless he received the car by a firm
date, four weeks away, he would not accept it. The car was not delivered within the
time specified and was not completed until some months later when Oppenheim
refused to accept it. The Court of Appeal held that he was justified in doing so. After
waiving the initial stipulation as to time, Oppenheim was entitled to give reasonable
notice making time of the essence again, and on the facts the notice was
reasonable.
This principle applies to construction contracts. If, because of waiver, time becomes
`at large', the Employer can give the contractor reasonable notice to complete
within a fixed reasonable time, thus making time of the essence againTaylor v
Brown [1839]. The Employer will have lost his right to liquidated damages so that
if the contractor fails to complete by the revised agreed date the Employer will be
left with the remedy of general damages. It is not clear whether the Employer can
make time of the essence, if it was not previously so.
6. Failure of Contractual Machinery
If the time or date for completion is effected by events which entitle the contractor
to an extension of time, but the contractual machinery can no longer operate, then
time is at large. The circumstances will be rare

The principle of time at largea


In short, the common law principle of time at large is this: if a delay event occurs
that is the employers fault and the contract does not allow the completion date to
be extended in that event, the original completion date, and any liquidated
damages regime, fall away and time is put at large. This means that the
contractor has a reasonable time to complete the works and the employer is no
longer entitled to claim liquidated damages for delay (although it may still be able
to claim general damages). It is an application of the prevention principle, that a
party may not insist on compliance with a contractual obligation in circumstances
where it has itself prevented such compliance.
If the works are delayed because of events for which the client is responsible (an act
of prevention) or by agreed neutral events, the contracts will generally provide for
an extension of time to be granted, changing the completion date (see relevant
events). If contracts did not allow the construction period to be extended under
such circumstances, then time would be at large. The client would then not be able
to claim liquidated damages from the contractor as there would be no date against
which they could be calculated and the contractor would then only have to
complete the works in a 'reasonable' time. The client would only be entitled
to damages if they could established that the contract was not completed within a
reasonable time.

Construction contracts will usually include a date by which the works described in
the contract should be completed. This is generally the date by which practical
completion must be certified.
The phrase time at large describes the situation where there is no date for
completion, or where the date for completion has become invalid. The contractor is
then no longer bound by the obligation to complete the works by a certain date.
Time can become at large because there is no clear completion date specified in the
contract, or can be a situation that arises as a result of events (typically by
agreement of the parties or by failure of the contract machinery), or if the contract
does not allow the construction period to be extended.
It is not uncommon on construction projects that the works are not completed by
the date for completion. If this is because of delays for which the contractor is
responsible, then then the contract will generally include a provision for them to
pay liquidated damages to the client. These are pre-determined damages based on
a calculation of the actual loss that the client is likely to incur if the contractor fails
to meet the completion date. Some contracts require that a certificate of noncompletion is issued as a pre-requisite to deducting liquidated damages.

If the works are delayed because of events for which the client is responsible (an act
of prevention) or by agreed neutral events, the contracts will generally provide for
an extension of time to be granted, changing the completion date (see relevant
events). If contracts did not allow the construction period to be extended under
such circumstances, then time would be at large. The client would then not be able
to claim liquidated damages from the contractor as there would be no date against
which they could be calculated and the contractor would then only have to
complete the works in a 'reasonable' time. The client would only be entitled
to damages if they could established that the contract was not completed within a
reasonable time.
It is important therefore that clauses describing relevant events cover all necessary
eventualities, otherwise if an event occurs that is not covered, time will be at large.
NB Construction contracts generally include a provision requiring that
the contractor proceeds regularly and diligently irrespective of whether it is
apparent that the completion date will be achieved.
NB NEC contracts refer to compensation events rather than relevant events. Both
parties must give early warning of anything that may delay the works, or increase
costs. They should then hold an early warning meeting to discuss how to avoid or
mitigate impacts on the project. In the case of a compensation event, if
the contractor fails to give early warning of a possible delay to the works, or
increase in costs, they will only be compensated for effects that would have
remained even if they had given early warning.

7.Reasonable Time
The question of what duration of time is reasonable is one of fact, not law. It is a question of fact
taking into consideration all relevant factors and circumstances, objectively assessed. Regrettably
as it is, this is one of the elastic concepts for which there will be no fixed answer. What constitute
reasonable time has to be considered in relation to circumstances which existed at the time the
contract obligations are performed but excluding circumstances which are under the control of
the party performing those obligations, normally the Contractor in our case.

7. Reasonable Time
If time does become `at large', the contractor's obligation is to complete within a reasonable time.
What constitutes a reasonable time is a question of fact. The principles to be applied are those
in Pantland Hick v Raymond & Reid [1893]. What constitutes a reasonable time has to be
considered in relation to circumstances which existed at the time when the contract obligations
are performed, but excluding circumstances which were under the control of the contractor.
In British Steel Corporation v Cleveland Bridge & Eng Co [1981] 24BLR100 Lord Goff applied
these principles by first considering what in ordinary circumstances was a reasonable time for
performance and then considering to what extent the time for performance of the contractor was
in fact extended by extraordinary circumstances outside his control. Whether a reasonable time
has been taken to do the works cannot be decided in advance, but only after the work has been
done.
If time is at large because no time or date was fixed in the contract, then it is not clear whether
the test of a reasonable time and the extent of control required is an objective or subjective test. It
is suggested that since the obligation is an implied term, that the reasonable time must be
determined from the objective intention of the parties. If the contractor has been specifically
chosen then it will be a subjective test. If, as is likely to be more usual, the contractor has been
selected in competitive tendering, then it will be an objective test of how a reasonably
experienced contractor in the actual circumstances would have carried out the works.
If time is at large because the specified time or date no longer applies following an act of
prevention or breach by the Employer, the original completion date is good evidence of what is a
reasonable time in ordinary circumstances. The original completion date is not conclusive it is
suggested. Part of the ordinary circumstances will include the fact that a contractor would be
expected to resource and plan the works in order to achieve the original completion date. The
delay and disruption caused by the act of prevention or breach needs to be taken into account.
It is suggested that if time is at large by waiver or election that this does not mean, without more,
that the Employer has waived its rights to damages for the breach of the obligation to complete.
In Shawton Engineering Ltd v DGP International Ltd [2005] EWCA Civ 1359 there were
variations to the contract but there was no contractual mechanism for extending time on account
of the variations. It was accepted that the effect in law of the variations was that DGP became
obliged to complete their work within a reasonable time.
Shawton sought to terminate the contract on the basis of DGPs breach of contract of failure to
complete. DGP stated that they were not in breach, because on the facts a reasonable time had
not expired.
The Court of Appeal held that a reasonable time had to be judged at the time when the question
arises in the light of all relevant circumstances. One of the circumstances was the original

contract date, even if DGP had underestimated the work content. The nature of the variation was
relevant:
Equally, the true work content was a relevant circumstance. . The mere instructing of a (perhaps
quite modest) variation after the original date for completion would not by itself necessarily
mean that a reasonable time had to be assessed afresh by reference only to the variation and
whatever work happened to remain at the date of the variation instruction . Mr Thomas may well
be right that a modest variation instruction given after an original completion date has passed
could, depending on all the circumstances, result in an obligation to complete within a reasonable
time whose assessment would produce a date which was in the past. But I accept Mr Friedman
QCs submission that the question is a composite one. The circumstances in the present case
included that the variations were significant in scope and, importantly, that, throughout most of
the year 2000, Shawton were not insisting on, nor particularly concerned about, early completion
of DGPs drawing work.
It was further held that Shawtons approach to the date of completion was highly relevant:
The original completion dates, and, indeed, the original completion periods had ceased to be of
any relevance. Shawton were, in the language of Denning LJ in Rickards v Oppenheim, not
insisting on the stipulations as to time, nor were they insisting on any times or periods for
completion. This circumstance, in my view, overlaid to extinction any question of calculating
time periods by reference to the original dates for completion and the work content of variations.
In the strange circumstances of this case, a reasonable time for completion was literally at large,
in the sense of being undefined, until Shawton took steps, as they did, on 7th November 2000 to
start negotiating for its better definition.
On this basis and the facts, the Court of Appeal held that DGP was not in breach of contract
The Meaning of Completion
There have been many shades of opinion as to what constitute completion and the use of some
phrases in certain standard forms of building and construction contracts such as practical
completion, substantial completion and others certain do not help. Further, the standard forms
of building and construction contracts also do not define the meanings of such phrases.18 The
completion of the Works comprised within a contract is important as not only it has a direct
bearing on the question of whether the Employer can levy liquidated damages on the Contractor,
but it also usually marks the transfer of certain risks or the crystallization of certain rights
between the Contractor and the Employer inter-se. Further, and as an additional example to
illustrate the importance of the meaning of completion, it may also be used to determine the
extent of the right to payment in those contracts which provide for stage payments. In most
standard contract forms, completion also marks the commencement of defects liability period
and also the release of half of the retention monies.