Greeff, T N (2018) Justification for the recognition of a new nominate contract based on project defect management. LLD thesis, University of Pretoria, South Africa.
Abstract
This research sought to establish whether the general acceptance that the common construction and engineering contracts as falling within the classification of the locatio conductio under South African law is correct. As the classification of a contract attracts specific essentialia and naturalia, and then too certain implied terms one example of an implied term that would have practical relevance is specifically investigated: The warranty against latent defects. Through this example I seek to demonstrate the relevance and importance of establishing what the classification of these contracts is, and its ensuing essentialia and naturalia. The investigation commenced by firstly considering the classification of the common building, construction and engineering contracts, with reference to the South African publications of JBCC and GCC, as well as the internationally published FIDIC Silver Book, FIDIC Yellow Book, and FIDIC Red Book, as well as the NEC ECC Option A and Option B. With alternate dispute resolution mechanisms, such as adjudication and arbitration, resulting in limited publications by way of case law and academic writing on the subject (specifically in South Africa), English law and German law were also consulted. It was established that, unfortunately, the classification of the common building, construction and engineering contracts under South African law is problematic: It does not fit the ordinary and previously accepted classifications, specifically that of the locatio conductio. This makes it questionable whether the warranty against latent defects could be, and should be, implied into any one of these contracts. The recommendation, accordingly, is that it is crucial for the construction and engineering industry to carefully consider and develop the true and relevant essentialia and naturaliaapplicable to these contracts. Only then will there be certainly as to what may be implied into these contracts, and what will not so be implied. Until this is achieved, the parties to these contracts, in order to have certainty, must deal with aspects such as the warranty against latent defects by way of an explicit written term in the particular contract.
| Item Type: | Thesis (Doctoral) |
|---|---|
| Thesis advisor: | Barnard, J and Kuschke, B |
| Uncontrolled Keywords: | FIDIC; South Africa; adjudication; arbitration; dispute resolution |
| Index terms: | case law, dispute, investigation, South Africa, option, resolution, arbitration, publication, defect management, FIDIC, warranty, adjudication |
| Subjects: | quality assurance, dispute resolution, legal systems, data collection methods, performance measurement, research dissemination and communication, conflict resolution, standard forms of contract, Geography, decision analysis |
| Topics: | Research Practice, Information Management, Stakeholder Management, Quality Management, Procurement, Geographical Context, Legal Issues, Risk Management |
| Descriptive scope: | 3 PCA |
N.B. Descriptive scope is a count of how many of the five facets of empirical research are indicated by the words used in title, abstract and keywords. It is not intended as a judgement on the research; merely a count of the kind of word we would expect to indicate Phenomenon, Concepts, Theoretical framing, Empirical techniques, Analytical techniques. If all five are present, then a code of “5 PCTEA” will indicate this. If you feel the coding for this record is questionable, we welcome discussion around the terms we matched or the way we categorized them. The facet you would expect may not be coded, or a facet may be coded inappropriately. This can also bear on a larger question, of which facets should be treated as defining in construction management research. Please get in touch, and we will look at it. More details here