Construction Law & Dispute Resolution

This assignment delves into various aspects of construction law, focusing on case studies and their implications. It covers topics such as the validity of adjudicator decisions containing errors of law, factors influencing mediation referral practices in construction disputes, and legal analysis of consequential loss within contractual frameworks. The assignment also examines broader themes like the discourse surrounding contract law and its application to marriage.

Contract law

“An acceptance has been defined as ‘a final and unqualified expression of assent to the terms of
an offer”
In accordance with the provisions of English law, acceptance is unequivocal and final
expression of the assent to the offer provided by the party. In other words, acceptance can be
defined as consent provided by the offerree on the offer given by the offeror. Contract is said to
be formed between parties in situation where acceptance is provided by the offerree in an
appropriate manner.
Provision of English law states that acceptance must be an unqualified expression of
assets. This aspect demonstrates that parties are required to provide acceptance to the aspect
which is offered by the offeror. In accordance with the provisions of English law, acceptance
supported by the condition or significant modification will be considered as counter offer. In
such situation, further acceptance of initial party is required for the formation of valid contract.
Further, in case of conditional acceptance or counter offer there is no contract between parties1.
Due to this aspect, purported acceptance which varies from the terms of the offer is not
considered as acceptance. Further, legal status of such statement will be fresh offer in which
initial free for further acceptance or rejection. For this aspect case of Hyde v Wrench (1840) 2can
be referred. In accordance with its case facts, defendant had offered for the sale of farm to the
claimant in £1,000. Claimant had responded that he will give £950 which was refused by the
defendant. Further, claimant had decided for the purchase at original offer price but defendant
denied for the same. Due to this action, claimant sued defendant for the specific performance. In
this case court held that there is no contract parties because counter offer destroys the initial offer
and offerree is not entitled for its further acceptance3.
In such situation, it is important to consider the correspondence between the parties
because after the counter offer response of initial party can be for inquiry instead of acceptance.
This situation was occurred in the case of Stevenson, Jacques & co v Mclean (1880). In this case,
defendant had offered for the sale of the iron to the plaintiff (provided offer was effective for the
1 Daniel Brawn, Extensions of time and liquidated damages in construction contracts in England and Wales
[2012] 4(1) International Journal of Law in the Built Environment Pl.75 – 90.
2 49 ER 132
3 Philip Britton and Julian Bailey, New homes and consumer rights: England and Australia compared [2011]
3(3) International Journal of Law in the Built Environment Pl.269 – 295.
2

limited time period). Further, plaintiff had made inquiry for the contractual terms on which
response was not provided by defendant. Further, defendant had sent telegraph at 1.25 pm that all
warrants are sold and plaintiff sent telegram at 1.34 pm for the acceptance. Later, claimant sued
defendant for non-delivery of warrant. In this case court held that inquiry cannot be considered
as rejection of offer. Due to this aspect, plaintiff was held liable to provide damages for the same.
An agreement is said to be enforceable by law only in situation where it is supported by
the provision of objectivity. Contracting parties must be agreed to the feasible terms else their
agreement will not be considered for the formation of contract. In the case of Scammell and
Nephew v Ouston 4 House of Lords there was lack of certainty and due to this aspect contract
was not considered valid by court of law. This aspect shows that, in this case agreement was not
held valid even it was supported by the provisions of offer and acceptance5.
By considering the described provisions it can be said that acceptance is to be valid under
provisions of English law if it is different from cross offer, counter offer and inquiry. In addition
to this it must be clear, absolute and unqualified. Mode of acceptance should be in accordance
with the terms of offer and it must be communicated to the offeror6.
Similar facts can be noticed in the case of Sudbrook Trading Estate v. Eggleton [1983]7.
In accordance with this case, tenant had option for purchase of freehold property in accordance
with the contractual terms of lease at a price determined by the two surveyors (one surveyor will
be appointed by landlord and one will be tenants). Further, tenant had sought to exercise the
available option but landlord stated that clause was too vague for the applicability as it do not
provide specification of the price. In this case, court held that clause is not vague because it can
be enforceable by the ascertaining the mechanism for price.
Communication is the most crucial factor for the assessment of validity of acceptance. In
accordance with the general rule of English law, offeror must receive the acceptance before it is
effective. In other words it can be said that acceptance should be provided by the party in
4 [1941] AC 251
5 Aimite Jorge, The subsidiarity rule: the unjust enrichment doctrine in construction law [2013] 5(3)
International Journal of Law in the Built Environment Pl.253 – 270.
6 Sergio Nasarre-Aznar, Robinhoodian” courts’ decisions on mortgage law in Spain [2015] 7(2) International
Journal of Law in the Built Environment Pl.127 – 147.
7 AC AC 444
3

reasonable time manner. For this aspect case of Entorres v Miles Far East [1955]8. In addition to
this, mere silence cannot be deemed as acceptance. This provision was applicable in the case of
Felthouse v Bindley [1862] EWHC CP J35. In accordance with the provisions of English law,
acceptance is not required to be in expressed manner as parties can provided it also through
conduct (Butler Machine Tool v Ex-cell-o Corporation [1979]9.
Provisions of communication is supported by the postal rule in situation where
contracting parties having distance agreements as they are not able to present at similar place.
Rule of postal is regarded as historical ruling where came into existence when the quickest and
major form of communication was by post. Further, through the decades different type of
communication came into existence which are now much advanced in terms of speed and takes
into consideration fax, telephone, instant messaging etc10.
Further, central requisites to the development of contract are those associated with offer
and acceptance. The basic rule in the law represents that communication of acceptance takes
place and it has been received by the offeror. This rule is applicable and states that means of
communication are deemed. As the time passes the courts have take decision whether it is
possible to extend the scope of the postal rule to modern development in communication.
Further, with the development of the electronic method the receipt along with the dispatch of the
messages tends to coincide and any other law associated with the delay between the two which
takes into consideration postal rule is regarded as useless11. Further, telephone conversation is
regarded as interaction which takes place between two people in the same room and on the basis
of this receipt rule is applicable. This clearly states that it is required for offeror to receive
communication of acceptance before any new contract has been developed and it seems to be
totally different from the postal rule in fact that the receipt has to be acknowledged by the
8 2 QB 327
9 1 WLR 401
10 Evaldas Klimas, A general duty to co‐operate in construction contracts? An international review [2011]
3(1) International Journal of Law in the Built Environment Pl.83 – 96.
11 Jeremy K. Coggins and Steve Donohoe, The validity of adjudicators' determinations containing errors of
law: A comparison of the judicial approach in England and New South Wales [2012] 4(2) International Journal of
Law in the Built Environment Pl.116 – 125.
4

offeror. Further, in many cases it is possible that dispatch does not matches with the mean
acceptance which has been communicated12.
Modern forms of communication such as fax and email have become almost
instantaneous in the English law. By considering this aspect, court of law had shown a marked
disinclination to widen the rule of postal acceptance rule. In an early case which is associated
with telegram a form of the postal acceptance rule was being undertaken Bruner v Moore (1903).
Further, in the other cases which are linked with telexes courts refused to extend the application
of the postal acceptance rules Entores v Miles Far East Corp (1955) and Brinkibon Ltd v Stahag
Stahl (1982). The cases being present are very crucial for the principles which are being
developed with respect to instantaneous forms of communication. Apart from this English
contract law anticipates for a case which undertakes around instantaneous communication such
as email or fax. Further, it is possible that contract can be developed with the help of such
mediums. Moreover, absence of technology in both these forms of communication is not
regarded to be instantaneous properly. It is well known fact that email may take time to reach to
destination but it totally relies on the route it takes to its recipient. As per view of poole two
approaches are present to email communication of the acceptance and it involves receipt rule
along with postal analogy13
Telex was brought before the court Entores Ltd v Miles Far East Corporation in the year
1955 and Lord Denning provided many examples of when any acceptance is communicated or
not with others and individual concluded the rule which is associated with instantaneous
communication which takes place between the parties and this is totally different from the rule
linked with post. Apart from this any contract is regarded to be complete when acceptance is
being received by offeror and it is being developed at the place where acceptance is received.
Therefore, it is the first and foremost duty of offeree to communicate the acceptance received in
appropriate manner before any contract is complete. This is unlike the postal rule as the law is
12 Andrew Agapiou, The factors influencing mediation referral practices and barriers to its adoption: A survey
of construction lawyers in England and Wales [2015] 7(3) International Journal of Law in the Built Environment
Pl.231 – 247.
13 Adam Connell and Jim Mason, Isn’t all loss consequential?: A review of recent case law and its relevance
to contractual practices within the built environment [2015] 7(3) International Journal of Law in the Built
Environment Pl.176 – 194.
5

not in favor of the consumer but it is regarded to be more practical. Further, in this sense both the
parties are well aware about their position14.
In the case of In the case of Entores v Miles Far East Corporation (1995), the claimant
belongs to London while plantiff was from USA with presence of agents in Amsterdam. Further,
both the parties present has telex plantiffs where orders were placed by telex and agent accepted
by telex. The dispute took place and plantiff demand for breach of contract. Further, the contract
was developed when acceptance was received in London. Moreover, with regard to undertaking
bilateral contract between the two firms a kind of specific standard is expected from the offeror.
As recommended in the Entores case it was being said that the principle present can be used
when specific offer is being accepted by the telephone and it was not possible for offeror to
consider the words of acceptance but individual did not asked for the words to be repeated and in
the case linked with BRIMNES case (1975) when acceptance is being sent by Telex during the
working hours but it was not read by anyone in the Offeror’s office15.
The justification for the same is that instantaneous communication is regarded to
be more acknowledged where post does not. It is based on the assumption that message of
acceptance which is being sent during the normal business hours through the mode of
instantaneous communication is reasonably expected to be received. On the other hand many
time it is possible that problem may arise where an instantaneous method is being considered but
the message is not regarded to be actually instantaneous. Further, Lord Fraser has faced this issue
in Brinkibon Ltd v Stahag Stahl and individual states that moral duty along with risk on the
individual who basically receives the message in case if they select not to man their machines
and other type of equipments. This was reaffirmed and limited to within the business hours of the
firm by the courts in Mondial Shipping and Chartering BV v Astarte Shipping Ltd where
message was being sent on Friday with the main purpose to communicate on the next day during
the working hours. This is regarded to be fair as it is not practical to regard the messages being
shared at all the times as it is indifferent to face to face communication. The law which is linked
with instantaneous seems to be more concise and is more fair as compared with postal rule.
14 Thomas Joo, The discourse of “contract” and the law of marriage, in Dana L. Gold. [2009] ( 24) Emerald
Group Publishing Limited Pl.161 – 187.
15 Alan Whaley and Brodie McAdam, The acceleration dilemma: can English law accommodate constructive
acceleration? [2015] 7(3) International Journal of Law in the Built Environment Pl.248 – 267.
6

Apart from this methods such as instantaneous has been undertaken for past many years
considering the above case and it has very less influence on commerce which is regarded as an
indicator which is perceived to be positive and is acceptable by entire society also16.
It is evident that a contract offer is to be accepted at the time when acceptance is brought
to the attention of the offerer. This fact is applied in the case of instantaneous communication,
that are made through telephone. In such kind of communication methods, parties may give
acceptance while making a clear communication, it case the communication become
unsuccessful then parties will have opportunity to make a proper communication via telephone
and confirming the same. The exception for this rule is applicable at the time when the
acceptance is posted. At such time the offer must be deemed to be accepted at the offeree posts
their acceptance. The use of emails have raised a question of whether the "postal acceptance
rule" are applied to the emailed acceptances or not. It is to be noted that in case the parties wish
to send notices by email there must be some provisions included that are also to be set out when
a notice is sent via email which is deemed to be received.
In a nutshell, it was found that postal rule is not been wholly outdated however, this can
be applied to modern non-instantaneous communication methods i.e. email. The statement made
by the court of Singapore, it was said that email can be seen as a non-instantaneous because
making use of such methods message can be arrived in a ‘in-comprehensive’ form which is
significantly depends on the ‘protocols’ through which is being sent17. The case mentioned also
compares emails which have not been yet accessed to mail that are unopened and subsequently
are persuasive. The postal rule should be applied to such email so as to make a decision over the
contract made through e-mails. As per the actual fact, the parliament has not legislated on the
subject however; they have given clear rule to contracting via websites, in which it is essential
that the parties in contract may suggest that it is their intention in respect with the application of
traditional postal rule18. To the second point of view, email is referred to a system which is
16 Russell Brown, Legal incoherence and the extra‐constitutional law of regulatory takings: The Canadian
experience [2009] 1(3) International Journal of Law in the Built Environment Pl.179 – 193.
17 Julian Sidoli del Ceno, An investigation into lawyer attitudes towards the use of mediation in commercial
property disputes in England and Wales [2011] 3(2) International Journal of Law in the Built Environment Pl.182 –
198.
18 Emma Lees and Edward Shepherd, Incoherence and incompatibility in planning law [2015] 7(2)
International Journal of Law in the Built Environment Pl.111 – 126.
7

similar to post but on a speedier basis. This fact is based on a logic, as at the time when email
messages between parties are truly instantaneous and direct if the ‘receipt’ rule is to be
considered or not. From the arguments and overall study, it can be said that contract are formed
when acceptance is communicated to the offeror. The above mentioned rule may provide some
problems in face-to-face negotiations but the development of modern methods of communicating
over distance such as emails .The issue can be resolved in both the cases, by deciding whether
the acceptance is communicated to the offeree when it is sent or when it arrives. However, at
present there is not a single statutory law in regard to the present point. The contract is to be
valid when email acceptance is read or when it is sent.
8

REFERENCES
Books and journals
Adam Connell and Jim Mason, Isn’t all loss consequential?: A review of recent case law and its
relevance to contractual practices within the built environment [2015] 7(3) International
Journal of Law in the Built Environment Pl.176 – 194.
Aimite Jorge, The subsidiarity rule: the unjust enrichment doctrine in construction law [2013]
5(3) International Journal of Law in the Built Environment Pl.253 – 270.
Alan Whaley and Brodie McAdam, The acceleration dilemma: can English law accommodate
constructive acceleration? [2015] 7(3) International Journal of Law in the Built
Environment Pl.248 – 267.
Andrew Agapiou, The factors influencing mediation referral practices and barriers to its
adoption: A survey of construction lawyers in England and Wales [2015] 7(3)
International Journal of Law in the Built Environment Pl.231 – 247.
Daniel Brawn, Extensions of time and liquidated damages in construction contracts in England
and Wales [2012] 4(1) International Journal of Law in the Built Environment Pl.75 – 90.
Emma Lees and Edward Shepherd, Incoherence and incompatibility in planning law [2015] 7(2)
International Journal of Law in the Built Environment Pl.111 – 126.
Evaldas Klimas, A general duty to co‐operate in construction contracts? An international review
[2011] 3(1) International Journal of Law in the Built Environment Pl.83 – 96.
Jeremy K. Coggins and Steve Donohoe, The validity of adjudicators' determinations containing
errors of law: A comparison of the judicial approach in England and New South Wales
[2012] 4(2) International Journal of Law in the Built Environment Pl.116 – 125.
Julian Sidoli del Ceno, An investigation into lawyer attitudes towards the use of mediation in
commercial property disputes in England and Wales [2011] 3(2) International Journal of
Law in the Built Environment Pl.182 – 198.
Philip Britton and Julian Bailey, New homes and consumer rights: England and Australia
compared [2011] 3(3) International Journal of Law in the Built Environment Pl.269 –
295.
Robert J. Morris, The teaching of law to non‐lawyers: An exploration of some curriculum design
challenges [2010] 2(3) International Journal of Law in the Built Environment Pl.232 – 245.
9

Russell Brown, Legal incoherence and the extra‐constitutional law of regulatory takings: The
Canadian experience [2009] 1(3) International Journal of Law in the Built Environment
Pl.179 – 193.
Sergio Nasarre-Aznar, Robinhoodian” courts’ decisions on mortgage law in Spain [2015] 7(2)
International Journal of Law in the Built Environment Pl.127 – 147.
Thomas Joo, The discourse of “contract” and the law of marriage, in Dana L. Gold. [2009] (24)
Emerald Group Publishing Limited Pl.161 – 187.
10