The eight essential clauses
| Clause | What its absence produces |
|---|---|
| Exact scope of the appointment | dispute about what was owed |
| Price and how it is determined | dispute about what was included |
| Price revision regime | dispute about cost movement |
| Periods and their starting point | difficulty establishing delay |
| Acceptance arrangements | dispute about transfer of risk |
| Hierarchy of documents | interpretation where documents conflict |
| Treatment of variations | works carried out without a price basis |
| Insurance and certificates | late discovery of a gap in cover |
None of these clauses is technical. All concern the organisation of the relationship, which is precisely why they are neglected in favour of technical annexes.
The three most often omitted
They deserve development, because their absence produces the longest disputes. Those clauses are few and easily checked.
Treatment of variations. A project evolves, and without a clause defining how a variation is requested, priced and accepted, works are carried out without a price basis. The question of price then arises after execution, in the worst balance of power.
The starting point of periods. A period running from a poorly defined event, such as obtaining the permit or vacant possession, does not allow delay to be established. Specifying the triggering event matters more than specifying the duration.
The hierarchy of documents. It is covered in the article on the hierarchy of contract documents, and its absence turns any conflict into a question of interpretation.
What the scope must state
The most important clause, and the one most often dealt with by vague reference. It concerns the precise definition of the object.
Three elements to specify.
What is included, stated positively rather than by reference to practice.
What is excluded, stated expressly where a third party might reasonably believe it included.
Who bears what is neither included nor excluded. That closing clause prevents the gap from favouring whoever invokes it.
On an architect's appointment, the most useful exclusions concern specialist technical studies and construction drawings, whose allocation varies by project.
Clauses that serve no purpose
Four frequent and ineffective stipulations. They reassure on reading without guaranteeing anything.
A limitation of ten-year liability. The regime being of public policy, such a clause is set aside, as the article on the layered liability regimes explains.
A clause setting aside the Breyne Act where its conditions are met, that act being mandatory.
A general clause on good faith or cooperation, devoid of operational content.
A reference to standard terms not annexed, whose enforceability will be contested.
Those clauses are not merely useless: they create an illusion of protection which dispenses with drafting effective stipulations.
The order of checking
A four-step method, applicable to any contract received. It takes place before signature and not after.
1. Read the scope and the exclusions, before anything else.
2. Check the pricing mechanisms, including revision and the treatment of variations.
3. Spot the ineffective clauses, which often signal a poorly adapted standard form.
4. Check what is missing, against the list of eight clauses.
The fourth step is the most useful and the least practised. A contract is judged as much by what it does not say as by what it says.
What this means for a professional
Four rules.
Write the scope positively and negatively, and provide for the remainder.
Define the variation process before construction, not when the first variation arises.
Do not confuse length with protection. Eight precise clauses are worth more than thirty pages of standard terms.
Check the absences as much as the content.
This article reflects drafting principles at the date of checking and serves professional orientation. It does not constitute legal advice and does not replace assessment of the individual case.