design, the Employer's own direct works or other causes which are not the

responsibility of the Contractor. Perhaps surprisingly, the Engineer is given a

discretion as to whether or not to order remedials which seems to extend to
defects which are the Contractor's responsibility. As instructions are not
expressly referred to in clause 2.6 (Engineer to act impartially), the Engineer will
often be required to follow the wishes of the Employer. (See however the
commentary under clause 2.6 and the argument that all of the Engineer's
functions are covered by the impartiality obligation.) This raises issues of
mitigation: is the Employer entitled to employ another contractor to execute the
remedials? If so, has he any right to recover damages from the Contractor? It is
submitted that the Engineer's discretion is limited to whether the remedials are
necessary and the means of carrying out the work. As the work is part of the
contract, the Contractor has the right to do it. Compare the right to omit work,
now expressly limited by clause 51.1 (Variations) item (b). If remedial work was
given to another contractor and the Employer sought to recover the cost from the
Contractor as damages for breach, the Contractor's response would be that the
Employer was also in breach with the result that the Employer may recover no
more than the cost to the Contractor would have been if he had executed the
work. It is arguable that the Employer should recover none of the costs incurred
in breach of contract but as the Contractor was himself in breach by executing
work defectively, this position is more difficult to sustain. If the Contractor is able
to demonstrate that the remedial work would have cost him nothing as
subcontractors would have executed it as part of their remedial obligations, it is
submitted that the Employer is in greater difficulty.

See clause 20.3 (Loss or damage due to Employer's risks) where a similar
discretion is given and clause 65.3 (Damage to Works by Special Risks) where
the Contractor appears to have been given the right to rectify, perhaps
inadvertantly. See also the commentary under those clauses. This clause should
also be read with clause 64.1 (Urgent remedial work). For discussion of the
Engineer's power to waive strict compliance with the specification, see the
commentary under clause 2.1 (Engineer's duties and authority) and clause 13.1
(Work to be in accordance with the contract).

49.3 The reference to implied obligation is one of the areas in the contract in
which the parties are exposed to the vagaries of the law of the contract, usually
the law of the country in which the works are being executed. The opportunity of
the overhaul of the conditions leading to the publication of the 4th Edition was
unfortunately not used to make express some of the commonly accepted implied
terms of the contract in order to reduce the necessity to research and apply local
laws.

If the Contractor is instructed to carry out remedial work which he believes to be

due to a cause for which he is not responsible, it is submitted that he has no
obligation to say so other than in accordance with clause 53.1 (Notice of claims),
that is within 28 days of the event, here the instruction. The notice requirement in
clause 52.2 (Power of Engineer to fix rates) relates to "work instructed to be done
by the Engineer pursuant to Clause 51". Whilst remedial work additional to that

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