People, especially home owners, often want to dictate to their appointed Contractors how and at what pace the Contractor should do their work – say with the installation of a new kitchen or with the extension of their house.
The Common Law generally governs building contracts. In Roman-Dutch law this type of contract falls under the category of letting and hiring of work. I.e. the Contractor supplies all the materials and labour to execute and complete the finished job.
The Contractor performs as an independent Contractor and the Contractor does not provide a service per se, but rather to produce a particular result.
The person who supplies the Contractor with the work and who engages and remunerates the Contractor, is the Employer. However, it is important to note the distinction between the Employer and the Contractor. In terms of our Common Law the Employer does not prescribe the pace of the work or the manner in which the work is conducted.
In the absence of an agreement between the Parties, the Contractor must perform the work in a manner and pace chosen by him as long as he completes the works by the agreed due date in terms of the requirements of the contract.
Similarly, if the Parties have not agreed otherwise and the Common Law is not altered by an agreement, the Contractor will only become entitled to payment once the entire works are completed in accordance with the contract.
At Common Law under a construction contract the Contractor impliedly warrants:
The Employer under Common Law inter alia implies that:
The Employer is also not allowed to make unilateral instructions to the agreed scope of work.
Did you know? In the absence of an agreement on the contract price, the Contractor is entitled to reasonable remuneration.
I will discuss modifications of the Common Law and Construction Contracts in a further article.