2013 10 -31

Terms and conditions
of contract
Jonathan Hazell
31 October 2013

© Jonathan Hazell Scottish Branch seminar 31/10/13 Page 2
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• Don’t write too much down
• These slides are freely available
• There are notes too!
• But, if you’re compelled to
scribble I’ve flagged the key
messages

The best things come in threes

• Hopefully, I can impress on you
• Why you should bother

• Why you should bother, and
• what you can do

• Why you should bother, and
• what you can do, and
• when you should do it.

Why should you bother?

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Look after your world

Look after our world

So, how do you go about it?
http://daveharman.com/wp-content/uploads/2011/11/jigsaw-puzzle-2.jpg

Manage expectations
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“You can’t always get what you want,
http://www.gigslutz.co.uk/wp-content/uploads/2013/07/Rolling-Stones-Hyde-Park-2.jpg Writer: JAGGER, MICK / RICHARDS, KEITH Lyrics © ABKCO Music Inc.

but if you try sometimes you just
might find you get what you need”
Writer: JAGGER, MICK / RICHARDS, KEITH Lyrics © ABKCO Music Inc.
“You can’t always get what you want,

Define, design, deliver
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Beware Greeks bearing gifts
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“A verbal contract isn’t worth the
paper it’s written on”
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Write things down

“As every lawyer knows, setting
out clear Terms for any contract,
at the outset, is essential if
subsequent problems are to be
avoided.”
https://www.jspubs.com/
Write things down

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Be risk averse

Balance the risks
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De-risk your situation

Let’s start at the very beginning
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A promise or set of promises
which the law will enforce.
• The normal method of enforcement is an action for damages for
breach of contract, though in some cases the court may order
performance by the party in default.
http://www.lawteacher.net/contract-law/introduction.php
What’s a contract?

Elements of a contract
1. Agreement
An agreement is formed when one party accepts the offer of another and
involves a "meeting of the minds".
2. Consideration
Both parties must have provided consideration, i.e., each side must promise to
give or do something for the other.
3. Intention to create legal relations
The parties must have intended their agreement to have legal consequences.
The law will not concern itself with purely domestic or social agreements.

4. Capacity
The parties must be legally capable of entering into a contract.
5. Consent
The agreement must have been entered into freely.
Consent may be vitiated by duress or undue influence.
6. Legality
The purpose of the agreement must not be illegal or contrary to public policy.
Elements of a contract

• The Association has supported the market place
by developing standard terms and conditions
• for contractors, and
• for consultants
http://www.trees.org.uk
. . . riding to the rescue

• Ts and Cs set the rights and obligations of the
contracting parties, when a contract is awarded
or entered into
• general conditions are common to all types of
contracts
• special conditions are peculiar to a specific contract
(such as contract change conditions, payment
conditions, price variation clauses, penalties).
http://25thjdc.com/wp-content/uploads/2012/11/Scales-of-Justice2.jpg

• There’s very little need to write your own as
Ts and Cs pre-exist
• in the canon of work produced by the AA and
other industry bodies
• in the canon of work produced by the legal
profession
http://25thjdc.com/wp-content/uploads/2012/11/Scales-of-Justice2.jpg

Civil Procedure Rules
http://www.justice.gov.uk/courts/procedure-rules/civil

http://www.expertwitnessscotland.info/home.htm

• Exactly what remains for you to do depends
upon where you fit in the market place,
which role are you trying to fulfil?
• custodian, or
• client, or
• contractor, or
• consultant
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What steps are left for you?

• From my experience . . . for every
instruction
• what will you do?
• what will you accept responsibility for?
• what will you charge?
Define

“. . . I will . . .”
http://images4.wikia.nocookie.net/__cb20110807000428/muppet/images/0/07/Marriage.jpg

“. . . I will . . .”
1. Under this proposal as the consultant I will:
1. undertake a tree survey and provide a report against the requirements of
Design Stages A – D as referred to in Figure 1: The design and construction
process and tree care of BS 5837:2012 Trees in relation to design,
demolition and construction – Recommendations (referred to hereafter as
BS 5837) at the site shown on [raw data] as supplied by [name] by
[email/post] on [date received].

• From my experience . . . for every
instruction
• what will you do?
• what will you accept responsibility for?
• what will you charge?
• what will you not do?
• what will you not accept responsibility or
liability for?
Define

“. . . I will not . . .”
http://eofdreams.com/data_images/dreams/tarantula/tarantula-10.jpg

2. Under this proposal as the consultant I will not:
1. meet or contact the local planning authority’s officers to discuss the project
that is the subject of the consultancy service; if required those actions will
be considered to be a variation (see below)
2. accept any liability that may arise from third-party post-processing of the
data that I have captured or recorded unless I have been given adequate
opportunity to confirm the veracity of those outputs before they are
forwarded to another party.
“. . . I will not . . .”

• From my experience . . . almost without
exception
• the client or customer may need firm guidance
• the process flow chart will be tortured
• you will learn something to use later
Define

Define – mean what you say

Design
• From my experience . . . start by looking the
wrong way down the telescope
http://www.365astronomy.com/images/21094_celestron-omni-xlt-150-refractor-telescope-m.gif

Scottish Branch seminar 31/10/13
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Design
• From my experience . . . agree the
deliverables

James England – james@England.ac

Design
• From my experience . . . only collect the
information you need

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Design
• From my experience . . . don’t over-promise

Deliver
• From my experience . . .
• this can be fraught
• control is vital
• a timetable is important
• flexibility can be a strength
• Make sure you have all the information
you need
• Deliver client-ready data

When?
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When?

When?
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Tools for the job?
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© Jonathan Hazell Page 57
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http://www.treesjerrydicker.co.uk/userimages/IMG_0327.JPG

Every picture tells a story
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Have you delivered?

“. . . when there is in prospect
a good that is certain and an
evil that is uncertain, it is
wrong not to do the good for
fear of the evil.”
Somerset Maugham, W. (1946) Then and now. London: Vintage 09 928686 6, p. 100
http://upload.wikimedia.org/wikipedia/commons/3/3e/Niccolo_Machiavelli_uffizi.jpg
Foreseeability

Client ready data

Don’t get carried away
• Don’t go beyond
your competence
or expertise
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• Do you need a sub-
contractor?
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• Got the paperwork sorted?
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Wrapping up
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• Have you delivered to your client’s
expectations?
• Have you answered the question that
you framed?
• Have you got the data you need?
• Have you done your research?
• Do you have the references you need?
• Are you comfortable with your
output?
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What was the question?

Remember your audience
1. Never use a metaphor, simile, or
other figure of speech which you are
used to seeing in print.
2. Never use a long word where a short
one will do.
3. If it is possible to cut a word out,
always cut it out.
http://whyevolutionistrue.files.wordpress.com/2010/07/george-orwell.jpg http://www.orwell.ru/library/essays/politics/english/e_polit

4. Never use the passive where you
can use the active.
5. Never use a foreign phrase, a
scientific word, or a jargon word if
you can think of an everyday English
equivalent.
6. Break any of these rules sooner than
say anything outright barbarous.
http://whyevolutionistrue.files.wordpress.com/2010/07/george-orwell.jpg http://www.orwell.ru/library/essays/politics/english/e_polit
Remember your audience

• By invoicing you confirm that you have
completed your commission and you are
fully satisfied that the work meets the brief.
• BUT – queries you receive after the issue of
your invoice will require you to answer
them, these may not be variations.
• It is not unreasonable to expect you to do
everything in your power to resolve any
questions raised, which may mean a return
site visit at your expense.
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Finally . . .

‘coz it says so . . .
“4. Limit of consultant’s liability
1. If any part of the consultancy services are performed negligently
or in breach of the provisions of this agreement then at the
request of the client (if the request is made within six months of
the date of completion of the consultancy services) the
consultant will re-perform the relevant part of the consultancy
services subject to clauses 4.2 and 4.3 below.

4. Limit of consultant’s liability
2. Except in the case of death or personal injury caused by the
consultant's negligence the consultant's liability under or in
connection with this agreement whether arising in contract tort
breach of statutory duty or otherwise shall not exceed the
greater of the consultant charges or the amount recoverable
under the consultant's professional indemnity policy (if
applicable).

4. Limit of consultant’s liability
3. The consultant shall not be liable for any loss or damage or
expenses of any nature incurred or suffered by the client of an
indirect or consequential nature including without limitation any
economic loss, loss of profits turnover, business or goodwill.”

If it all goes pear shaped . . .
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. . . see you in court
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• I’ve put a model proposal for
consultancy services on
http://jhazell.com/?page_id=200, or
• I’ve also put an example of tender
documents for tree work services there,
but you’ll need to refer to both GN8 and
BS3998 to understand it
So, some examples

2013 10 -31

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2013 10 -31