or engineering nature, whether it be the design and construction of a building, a ship or aircraft, a guided missile, the fabrication of a bridge or the erection or an industrial pro- cessing plant.
REQUIREMENTS FOR A GOOD CONTRACT
What then are the requirements for a good building contract? Essentially, it is necessary that contracts shall be fair, definite and certain.
If I may adapt from a French proverb dealing with accounts, I would say that good contracts make good friends, and conversely, bad contracts make bad friends. The contract should be cer- tion as to the work to be done, the time at which it is to be done, and the price to be paid for it. In appro- priate cases, it must be quite definite and certain also as to the allocation of responsibility.
This will not be achieved by an agreement which is thrust upon the other party. It can only be reached through patient negotiation, in which each comes to appreciate the other's point of view, and a fair solution is worked out between them.
It is therefore very important that each of the parties to the contract, or the classes of persons affected by it through their various organisations, should constantly revise the common forms, and elaborate in a spirit of co-operation, new forms, or new clauses to be worked into the old, which will enable persons engaged in the industry to enter safely upon the new kinds of relationships necessitat- ed by the changing times.
TEAM WORK
CO-
Perhaps now more than ever an essential idea which should run through the building contract is the necessity for team work and operation between the architect or engineer, on the one hand, the builder or contractor on the other, the sub- contractors and suppliers, and the building workmen, coupled with a proper allocation of final responsibi- lity. The collapse of Melbourne's King's Bridge serves as a warning of what may happen if we fail to learn the lessons which it has to teach us in this regard.
I should It is also right that emphasise the importance of consis- tency in the contractual documents. Too often we see clauses written into the specification which are really quite contradictory of, or at least very difficult to reconcile with, the
clauses in the actual conditions of contract. And there are many in the industry who deprecate the insertion in the specification of the so called "blanket” clauses, of uncertain scope or meaning, designed to cover by catch-all phrases, deficiencies in the drawings and specifications.
GOOD FAITH
There are many who will say that good faith is or should be the corner stone of the building industry, and that contracts are consequently of little value. In a sense, I must agree
the capacity, skill and good faith of the persons concerned, their wish to preserve their reputation and good name, are all factors of tremendous importance. But the importance of the contract itself is not diminished by these considerations. Even if all goes well, the contract is a code to which all must refer from time to time. And if things go badly, a contract fair, definite, and certain will be found to be of tremendous value in keeping disputes to a mini- mum and enabling the operation to be carried through to a successful conclusion.
THE LAWYER CAN HELP
For better or worse, the building industry and the lawyers must become better acquainted with one another.
Those who would throw the law and lawyers overboard are adopting a policy of despair, and will find themselves in worse trouble than those who realistically attempt to come to terms with both.
For too long the industry has endeavoured to get along without the constructive help that the lawyers can give, only coming to them per- haps when things have gone wrong.
The man who would not dream of signing a contract for the sale of his house without first consulting a lawyer will cheerfully negotiate and sign a building contract involving millions of pounds without going near him. And if now the builder should turn to his lawyer for his help in the initial stages of a contract formation, he may at first be disappointed.
As I have indicated earlier, law and lawyers do not operate in a vacuum. It will first be necessary for the lawyers in greater numbers to learn something about the building indus- try, before they can give it adequate help.
They will not gain that knowledge, in all probability, human
THE HONG KONG & FAR EAST BUILDER VOLUME 19, NUMBER 2
nature
being what it is, unless people in the industry first give him the opportunity to acquire it and then show some patience with him until he has found his feet. From that point onward. I predict, you will wonder how you ever got along without him.
EDUCATION IN THE LAW
It will be for the building industry to work out in conjunction with the lawyers how people in the industry can best be given some basic instruc- tion in the meaning and operation of building contracts. Provision can be made of course for some more practical instruction in the field of building contracts to be incorporated in the courses of study now under- taken by would-be architects, gineers and builders, but that is not enough. Some provision should be made also for the further education
I say it with all respect
of per- sons who have perhaps spent all their lives in the industry, but now find themselves facing new problems.
courses
en-
Through articles in your journals,
of lectures through
and seminar discussions, through con- ferences such as this on which we are now embarking, the industry will become more familiar with the pitfalls and difficulties and the ways in which lawyers may help to avoid them. Instead of being brought in like sur- geons, to operate upon chronically ill patients, the lawyers may perhaps now be regularly consulted as phy- sicians to keep the patient in health.
THE ULTIMATE AIM
The final end and aim in all of this discussion concerning the building contract is surely the provision of fitting instruments for the realisation of the full dignity of man - houses and homes which are not mere "machines for living," but places fit to accommodate the love and in- timacy of family life at its best, offices and factories in which the works of man may be fashioned and directed with dignity, in health and comfort, schools, hospitals, and in- stitutions in which our children may be raised to their fullest moral, physical and intellectual stature, and the sick and needy may find health and rest; the great wharves, highways, railroads, and airports from and through which man reaches out to man, and the great globe itself is brought within the manageable com- pass of mankind all these things and many more are made possible for us through the great industry with which you, gentlemen, are identified.
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