LEGAL DOCTRINES : A BRIEF NOTE
A) Expressio Unius Rule: expressio unius est exlusion altreious
• If some term contains express mention of details, such details are
interpreted to be excluded where they are not expressly provided if
a contract has four sub-works, each having item of Excavation and
the item in three mentions free initial lead of 100 meters as free lead
the fourth sub -work excludes such ‘free -lead’ and could be
charged. No general assumption as to its inclusion is permitted.
B) Ejusdem Generis Rule:
• In Construction Contract many items end their description with the
work “etc - et- cetera”. To interpret the limit of “etc” one has to
interpret to include similar word or description belonging to some
genre “External works like compound wall, gate, roads, drainage
etc. for a housing complex cannot mean Club House or sewage
disposal plant.
C) Contra-Proferentum Rule:
• In case of words creating ambiguity, it is interpreted against
drafter.
• The meaning attached or preference shown by Reader i.e.
Contractor takes preference to the meaning the Owner attaches.
• This rule is based on fact that drafter ( Owner ) has all the time to
clearly draft his statement. He cannot be ambiguous to mislead a
bidder and subsequently take advantage thereof.
• The phrase “Either -or” provides choice to Contractor and not to
the Owner.
D) Waiver
• An important legal issue in construction contract is “Waiver”.
• When a party earns a right against another party and does not
enforce but effects another alternative or substitute, it is said to
have waived the rights.
E) Estoppels
• Estoppel is corollary to waiver in the sense that once a right has
been waived, one is stopped from enforcing the right for that event.
• Your action creating reliance for other party creates Estoppel for
you. One cannot reverse the action without creating a legal
detriment to you.
F) Election
• For relief or otherwise, you may have a few options.
• If you elect one options, then it prohibits for electing other Option.
• You opting for one creates estoppel for other.
• A liquidated damage linked to extension of time is one such
situation so one can put that phrase “without prejudice “ to reserve
rights for compensation, if it is elected to ‘extend time’ where time
was originally of an essence.
G) Alteration
• When one alters a contract, the other party has a right to repudiate
or affirm.
• It is the affirmation that creates new contractual relations and
repudiation becomes “waiver”.
H) Constructive Notice
• It is required to discuss doctrine of Constructive Notice in context
of construction contracts.
• It is evidence of knowledge and not necessarily evidence through
record.
• If under supervision of owner’s representative and his active
presence, an item is being executed he is deemed to have the
“Constructive Notice” though no formal notice is given.
• This is also the situation where contract is being performed without
formal extension.
I) Superior Knowledge
• Basic element of contract is that both parties share all relevant
information necessary for performance of respective promise/
obligation.
• There should not be an element of surprise for either of the
parties for absolutely free consent.
• This requires sharing all relevant knowledge.
• Owner who conceives the project often knows lot more about site
sub-soil conditions and above all socio-political factors and local
customs.
• Under clause of contract related to “Site inspection,” such factors
are not deemed included in its scope. This doctrine is known as
doctrine of Superior Knowledge.
J) Reasonableness
• In construction contracts, Engineers, Architects, project, Managers
have various powers stated to be ‘Final and Binding’ such powers
need be exercised in framework of ‘Rules of Natural Justice’ whose
touchstone has to be Reasonableness of decisions and directions.
• Often the decisions become excluded from scope of reference for
arbitration. This provision of law makes ‘Reasonableness’ as
mandatory requirement of mechanism of decision making.
XXX
