What each register governs
Contractual clauses govern the relationship between the parties. Time for completion, payment, handover, warranties, liquidated damages, insurance, termination.
Technical clauses describe the building and its execution. Materials, workmanship, dimensional tolerances, testing, conformity checks.
A simple test: if the provision would hold good on another site of the same kind, it is probably contractual; if it describes this building, it is technical.
| Register | What it governs | Who applies it |
|---|---|---|
| Contractual clauses | Rights, obligations, time, payment | The contracting parties |
| Technical clauses | Materials, workmanship, tolerances | The site teams |
Why mixing them is costly
Three concrete consequences.
A contractual requirement placed in a technical clause is not read by the right person. The site manager reads the technical part, management reads the contractual part.
A technical requirement placed in a contractual clause is not priced. It does not appear where the contractor builds their price, and it resurfaces during the works.
Both cases produce the same result: a claim during execution, a dispute over whether it is additional, and a negotiation from a weak position.
This mechanism is covered from the angle of its consequences in the article on additional works.
The borderline areas
Four categories that hesitate between the two registers. They belong as much to the contract as to the technical part.
Access and site set-up conditions, which concern organisation but have a direct technical cost.
Samples and prototypes, a contractual procedure bearing on a technical object.
Documents to be produced by the contractor, working drawings, calculations, as-built records.
Safety and coordination obligations, which bind the relationship while conditioning execution.
These four categories must be addressed expressly, failing which each party assumes the other has covered them.
The rule of the priceable
An operational test, more reliable than doctrine. It consists in asking who has to apply the provision.
Any provision with a cost must appear where the contractor builds their price.
If a contractual requirement has a cost, it must find expression in the schedule, or at minimum be flagged in the particular technical clauses.
Site set-up required without a corresponding item in the schedule will be priced by guesswork, or not at all.
This rule explains why some requirements appear twice in a well-built specification, from two angles and without contradiction.
The method of classification
Four questions, for each provision drafted. They determine where it belongs in the specification.
Does this provision govern the relationship or describe the building.
Would it be identical on another site of the same kind.
Does it have a cost, and if so, where does the contractor price it.
Who will read it, and at what point in the project.
The fourth question is the most useful in practice, since it immediately reveals misplaced provisions.
What this means for a professional
Four rules.
Classify each provision before drafting it, rather than placing it wherever it comes to mind.
Carry any requirement with a cost into the schedule, whichever register it sits in.
Address the borderline areas expressly, rather than leaving them implicit.
Reread the document from each reader's viewpoint, technical and contractual, before issuing it.
This article sets out a method of professional orientation. It reproduces no content from normative documents and does not replace consulting them.