Most construction disputes are decided long before anyone goes to court. They are decided by the contract you signed, and by whether it said clearly who carries which risk.
Whether you are a developer, a main contractor or a sub-contractor, these five clauses deserve your closest attention before you sign.
1. Payment and certification
Set out how and when work is valued, who certifies it, and the period for payment after a certificate is issued. Specify interest on late payment and your right to suspend work if you are not paid.
2. Variations
Changes are inevitable. A good variation clause says who may instruct a change, how it must be recorded and how it will be valued. Insist on written instructions: oral variations are the source of countless claims.
The contract you sign today is the evidence you will rely on tomorrow. Write it as if you will one day have to prove it.
Adv Slysken S. Makando
3. Delay and extension of time
Define what entitles the contractor to more time, the notice that must be given and by when. Pair this with a clear penalty or liquidated damages provision so that both sides know the cost of delay.
4. Defects and practical completion
Agree what "practical completion" means, how defects are listed and remedied, and how long the defects liability period runs. Tie the release of retention money to these milestones.
5. Dispute resolution
Choose a process that suits the project: negotiation, then mediation or adjudication, with arbitration or court as the final step. Name the rules, the seat and how the decision-maker is appointed.
Before you sign
- Read the special conditions as carefully as the standard form.
- Check that notice periods are realistic for your team.
- Keep a contemporaneous record from day one.
This article is general information, not legal advice. For advice on your specific project, please contact our construction team.
Founder & CEO. 32 years before the High and Supreme Courts of Namibia.
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