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- ItemRestrictedNEC3ECC Clause 10.1: An Enforceable Contractual Duty of Trust and Co-operation in the Construction Industry?(Juta, 2017-06-01) Boxall, Terry; Hutchison, Andrew; Wright, MichelleThis paper discusses the NEC3ECC (a standard form contract widely used in the South African construction industry), with particular regard to its Core Clause 10.1, which creates the obligations to act as stated in the contract and in a spirit of mutual trust and co-operation. The authors, who comprise two legal scholars and a legal practitioner, shed light on this clause, using both textual and contextual approaches. Our aim is to explore how the norms of trust and co-operation – inter-linked notions from the paradigm of relational contracting – are carried through to the performance and enforcement stages of a construction contract based on the NEC3ECC. We also investigate how these norms manifest in the realm of dispute resolution with reference to both formal, traditional legal proceedings and alternative forms of dispute resolution. Our conclusion is that the good faith duties created by clause 10.1 do not translate well into adversarial dispute resolution processes, particularly in a curial setting, and that the phrase “mutual trust and co-operation” is generally viewed as not adding much to the obligation to act as stated in the contract.
- ItemOpen AccessRelational theory, context and commercial common sense: views on contract interpretation and adjudication(Juta, 2017-06-01) Hutchison, AndrewOne of the key insights of relational contract theory is that context matters – in all contracts, but particularly in long-term commercial ones. The use of context in the interpretation of contracts appears to be on the rise in South Africa, in line with increased subjectivity in contract adjudication. Interesting parallels can be drawn with the shifting sands of contract interpretation in the UK, where contextualism is on the rise, but remains controversial. Indeed, even the concept of good faith is under discussion in English law, particularly with regard to relational contracts. Appropriate construction of the agreement seems to be the favoured approach to achieve results which make ‘commercial common sense’. This article will also draw on the English reception of relational contract theory. These comparative insights will then be applied in a discussion of the proper approach to South African contract adjudication, using a case study of the Everfresh case, which is a leading example of a post-constitutional relational contract dispute.