What Lies Beneath: Site Conditions and Contract Risk

Accessing papers

If you are logged in as a member or a registered academic, you will see a link to download the paper for FREE. The link is just above the Add to Cart button.

If you wish to purchase the paper, you must be logged in first (click here to log in, or click here to register). You will then see the Add to Cart button. You may also have a choice of preferred format if both are available - PDF download costs £3 inc VAT, printed version costs £7.50 inc postage (no VAT). Choosing one or the other changes the price displayed.

When you are ready to check out, use the 'View basket' link in the top left of the website.

Julian Bailey

May 2007

A paper based on the first prize entry in the SCL Hudson Prize essay competition 2006, presented to a meeting of the Society of Construction Law in London on 1st May 2007

Where site conditions make a project more time-consuming or expensive (or both) than expected, how is the risk of this allocated between the parties? In this 2006 Hudson Prize paper Julian Bailey looks at the default position - if the parties do not provide expressly for this category of risk in their contract; at how the common standard forms provide for site conditions risk; and at other relevant legal doctrines, including the law of misrepresentation. His examples and sources come from a wide range of common law jurisdictions and his paper suggests preferred ways of addressing site conditions risk, in order to reduce the uncertainty and disputes which such issues can cause.

Introduction - 1 General Position - 2 Allocation of risk by contract -3 Information provided to the contractor - 4 Contractual relief for adverse ground conditions - Conclusions.

The author: Julian Bailey is a solicitor with CMS Cameron McKenna LLP.

Text 21 pages.

PDF file size: 266k

Paper number: 
May 2007, printed/online, 266k

Our papers

The Society has published nearly 400 papers since 1984. Some are published both in hard copy and electronically (numbered), others in electronic format only (number prefixed 'D'). The hard copy papers can be purchased (except those marked with an asterisk which are no longer available). They are all also available as PDF files to download.

Those available as downloads can be accessed free by members and registered academics (students and staff) - if logged in, they will see a link to the file just above the Add to Cart button on each paper's page. Others can purchase the PDF file for a cost of £3.00. Note that this sum includes VAT, since VAT is chargeable on digital files.

For further instructions on downloading, click here. The PDF file will only open on your computer if you have Adobe Acrobat installed (to obtain a free copy, click here). To save the paper to your computer, choose the 'save' icon on the Acrobat toolbar before opening the paper.

For personal use only

The papers on this website are for use by SCL members (and those who pay for them) only, and papers may be downloaded, printed and/or otherwise retained for that purpose only by members of the SCL (and those who purchase them).  The availability of all papers past and present represents a significant benefit to members of SCL and wider dissemination of SCL papers dilutes that to the detriment of the membership.  Further and more importantly, copyright in the papers belongs jointly to the writers of the paper and to the SCL, and the SCL is not therefore in a position to provide any wider licence.  Accordingly the SCL asks members and those who purchase papers not to disseminate papers more widely than their licence allows (e.g. by posting them on internal legal resource intranet databases and the like).