LAWBUILD Letter No. 10

Wednesday, 3 November 2004

Lawbuild provides construction law expertise to save clients time and money. A personal message from Lawbuild's Principal David Lewis

Publication of correspondence, legal disclaimers and warnings: please read first

Design is at the root of good construction, and design – to be worth anything – has to be fit for the purpose for which it’s intended. I can offer no brilliant insights into construction design, but I do consider myself something of an expert on the design of consumer goods and business equipment. And, as I endeavour (at perhaps excessive length) to prove this, you may find yourself learning more about the Lewis home and lifestyle than you ever wished to know.

A few weeks ago I borrowed my wife’s portable compact disc player to listen to my favourite music while walking. After I’d passed the neighbour’s house, with the player in its purpose-built bag over my shoulder, the CD began skipping and jumping. I returned home, studied the manual, applied the digital anti-shock feature, and restarted my walk. Note that I said “walk”, not “run”, “jog”, “hop”, “somersault”, or any other activity more vigorous than a brisk stroll. This time I got a bit further than the neighbour’s house, but before long the CD resumed its skipping and jumping.

Two thoughts occurred to me. First, that the whole point of a portable compact disc player is that it should enable you to listen to a CD while you are carrying it. And secondly, that it seemed to be only the limited size of the memory buffer that was preventing the machine from playing smoothly; in an age of awesome computer power and miniaturisation, the manufacturer had been unable to provide more than about ten seconds’ worth of memory buffer.

(On a similar theme, I have a portable telephone, purchased only a couple of years ago, into which I can program up to 50 names and numbers. Why only 50? And why are the names limited to eight characters each? Is memory really so expensive these days that more space cannot be provided?)

Now instead of carrying the CD player in its bag I could have clipped it onto my belt, using the belt clip attached to the device. (Forget for this purpose whether using the belt clip would have solved the skipping and jumping problem, which it almost certainly wouldn’t.) The belt clip is about 8cm long, and is open at one end (the bottom end when used normally). In theory, the force of gravity should guarantee that the clip will work, provided the user remains upright, even if there is a certain amount of body movement. In practice, the fact that it is open at one end more or less guarantees that sooner or later the clip will fail and the player will detach itself from the belt. Normal body movements will eventually, somehow or other, cause the open end of the clip to move upwards and to slide off the belt it’s attached to. Remarkably, many years of experience had not prompted the manufacturer to design a fully closable belt clip (perhaps with a stud fastener at the open end); nor apparently had the proven bad design of the clip dissuaded people from buying portable cassette and CD/DVD players with this feature.

By this time you may be ready to pay a visit to the Lewis bathroom. On the side of the bath is a shower panel, purchased from a well known DIY store, which, when I fitted it (in strict accordance with the instructions; and in case you’re wondering, I’m quite proficient at basic DIY), was so tight you could hardly move it and leaked near the wall. I then asked our handyman to refit it, after which you could move it easily enough but it now leaked everywhere. This wasn’t the handyman’s fault; it was simply a design which could not combine ease of use with water-resistance. In effect its ability to keep in the water depended on an extremely tight fit with the bath tub.

On the other side of the bathroom is a wash basin fitted over a cupboard, with a new tap having its own inherent self-contradictory mechanism. It has a vertical rod which you use to lift and lower the plug, but after a while this mechanism begins to stick. The solution is to open the cupboard under the wash basin and loosen a furled knob which is somehow connected to the tap. But loosening this knob has the effect, or side-effect, of allowing water to leak into the cupboard. Strangely enough the identical tap in our adjacent WC doesn’t leak and does allow the plug to be controlled without difficulty, so perhaps the bathroom tap is just defectively manufactured, not defectively designed.

While we’re inspecting the more private regions of the Lewis home, how about the wall heater in the WC? When you switch it on, using a pull switch, a light comes on. As it happens, the temperature at which the heater gets too hot for comfort is approximately the same as when it gets too hot for the heating elements. At this point, one of two things will happen: either you switch it off, or it cuts out automatically. In either case the light on the heater (not, thank heaven, in the room) goes out.

As the minutes tick by, if you’re not concentrating on the heater (and let’s face it, you could have other activities to concentrate on) you may see that the light is off but you forget whether that’s because the heater cut out automatically or you switched it off. Get it wrong, and when you enter the toilet a couple of hours later the heater has come on and gone off several times but despite the cut-outs the temperature (and the electricity bill) will have risen and the room will be uncomfortably hot. Why couldn’t the designers have simply arranged to leave the light on when the heater cuts out automatically?

It never ends. I’ve got a label printer which prints a wide margin above the first line of the address but cuts off the bottom bit of the postcode. There’s nothing I can do about it, either by adjusting the position of the label in the printer or by changing the margins in the software. The only solution I can find is to create a blank bottom line by inserting a carriage return after the postcode, which means I’m confined to three- or four-line addresses: usually, but not always, adequate. (This is probably a software, not hardware, fault.)

I could go on, but you get the drift. I’ve come to the conclusion that many designers of consumer goods and business equipment lack common sense and have little or no interest in ergonomics or in finding out and acting on the experience of users.

My final observation is that software writers and website designers seem for some reason to be far more receptive to users’ experience. When I beta-tested software a few years ago the writer implemented many of my recommendations for improving the product, and I’m currently using and commenting on an interactive website whose designer is only too pleased to receive and act on input from me and other users.

I will gladly publish any readers’ experiences of poor design, especially if they relate to the construction industry.

With kind regards.

Principal of Lawbuild, solicitors
Editor of the Lawbuild Newsletter

Termination for breach of contract

And the parties’ claims when this happens

As a general principle, if one party breaks his contract this doesn’t entitle the other party to stop performing his obligations.

Consistently with this principle, there is no general right at common law for a contractor to suspend work if payment is wrongly withheld.

There are two main exceptions. The first is where there is a fundamental breach, i.e. one which deprives the other party of substantially his whole benefit from the contract.

The second main exception is repudiation, which occurs if one party acts or expresses himself so as to show that he does not mean to accept the obligations of a contract any further.

A wrongful suspension of work can amount to repudiation if it meets that criterion.

An absolute refusal to carry out the work or an abandonment of the work before it is substantially completed, without any lawful excuse, is a repudiation.

If the other party chooses to “accept” the repudiation, this releases both parties from further performance.

However, “accepting” a breach of contract as a repudiation when it is not is itself a breach of contract and a repudiation.

It is a good precaution to give notice before treating delay by the contractor as a repudiation; and I suspect that this principle can be extended to other potentially repudiatory breaches of contract, chiefly an apparent suspension of work. Effectively non-compliance with the notice can turn a non-repudiatory breach into a repudiation.

Depending on circumstances, a sensible response to a serious breach of contract can be to avoid accepting it as a “repudiation”. This won’t prejudice the innocent party’s claims for damages for breach of contract. But sometimes an employer does need to accept a contractor’s repudiation because he wants to engage other contractors to make good defects and complete the works. It has been held that the engagement of additional contractors to execute the same works already contracted to another contractor is itself a repudiatory breach, so it makes sense for an employer to terminate the contract safely and lawfully before doing that.

Where a contractor fails to complete, the normal measure of damages is:

Where contract work has been partly carried out and the contract is brought to an end by the employer’s repudiation – including, in my view, “accepting” an non-existent repudiation by the contractor - the contractor is entitled to be paid the value of the work done at contract prices and the loss of profit on the unfinished balance.

A glossary of construction law expressions: M is for .

Management contract

A "fast-track" procurement method in two stages. In the first stage, the management contractor obtains tenders for each work element from works contractors (who would be subcontractors under traditional procurement). In the second stage the management contractor enters into works contracts (subcontracts) with the works contractors in order to carry out and complete the works. The two stages naturally overlap. The employer pays the management contractor a management fee on top of the "prime cost" of the works.

The main weakness of the system is that if defects occur the employer can recover damages from the management contractor only to the extent that the management contractor can recover damages from the works contractor. Apart from certain legal problems this raises, it means that the risk of a works contractor becoming insolvent is borne by the employer instead of by the contractor.

Business Network International^®

Lawbuild and David Lewis are a member of the Victoria (London) Chapter of Business Network International (BNI).

BNI is a business and professional networking organisation whose purpose is to generate quality referred business for its members. BNI can claim to be the most successful organisation of its kind in the world, as it records the business transacted on a weekly basis. In 2003 members of BNI worldwide passed over 3,000,000 referrals generating £750m of business. Currently, there are more than 3,400 active groups, of which 450 are in the UK and Ireland.

BNI groups limit membership to one person per business, so members have an opportunity to lock out their competition.

You can contact us to ask about the benefits of becoming a BNI member, and we can arrange for you to attend one or two meetings as a visitor and without obligation.

To learn more, visit BNI Europe and BNI Victoria.

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About Lawbuild

Lawbuild is a specialist construction law practice offering expert advice and services to anyone carrying out or lending money for construction, and to any buyer, seller, landlord or tenant of recently built or refurbished property.  We are experienced, thorough and professional.  Our aim is to save clients time and money, and our charges are very reasonable.

Lawbuild is equally at home with contracts for services and with many other kinds of non-specialist agreement.

Lawbuild's principal, David Lewis, has more than 25 years' experience in contracts and construction law.

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David Lewis
Lawbuild, solicitors
37 The Grove
LONDON
N3 1QT

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www.lawbuild.co.uk

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