2022-04-02（200）Engineering law and the ICE Contracts

CHAPTER 3

Conditions of Contract Clauses 1–19

DEFINITIONS AND INTERPRETATION

THE EMPLOYER AND CONTRACTOR

1. (1) In the Contract (as hereinafter defined) the following words and expressions shall have the meanings hereby assigned to them except where the context otherwise requires:

(a) “Employer” means ................................................................ of ................................................................................... and includes the Employer’s personal representatives,1 or successors.2,3

(b) “Contractor” means the person or persons firm or company whose tender has been accepted by the Employer and includes the Contractor’s personal representatives successors2 and permitted assigns.4

For interpretation generally see pp. 5–6 and cl. 5.

1. “EMPLOYER (CONTRACTOR)…INCLUDES THE EMPLOYER’S (CONTRACTOR’S) PERSONAL REPRESENTATIVES”. By these words the contract continues in force despite the death of either party. So the executors or administrators of a contractor who dies are entitled, and may be required by the employer, to complete the works. And the executors or administrators of an employer who dies may require, and must allow the contractor if he wishes, to complete the works, and must pay for them.

Even in the absence of an express term of this kind in the contract, an engineering contract is not normally affected by the death of the employer. This is because the employer’s assets remain available in the hands of his personal representatives to meet the contract payments so that the contractor does not suffer by having to perform the contract despite the employer’s death. In the absence of a specific term a contract will come to an end on the death of the contractor if, as will very often be the case, the circumstances show that the exercise by the contractor of his personal skill and judgment in relation to the construction of the works was to the employer a material consideration in entering into the contract with him.

Where completion by the contractor’s executors or administrators would not be satisfactory to the employer, “personal representatives” may be struck out in (b) of this clause and “but not the contractor’s personal representatives” added after “assigns”.

2. “EMPLOYER (CONTRACTOR)…UDES THE EMPLOYER’S (CONTRACTOR’S)…ESSORS”. The reference to “successors” covers, for example, a change of Minister where the employer is a Minister of the Crown acting in his official capacity, or an amalgamation by a limited company party. It also covers an assignment of his whole business by a contractor and, where the contractor is a partnership, any change in the membership of the firm by death or retirement, etc., of a partner.