Ambiguity factors in construction contracts entailing conflicts

PurposeConflicts, claims and disputes are inherent in most construction projects. Acceptable degree of commonality in the interpretation of contract provisions is critical in effective contract administration. This study aims to assess the effects of contract ambiguity factors on construction conflicts, highlighting the causes of divergent interpretations using fuzzy technique for order of preference by the similarity-to-ideal-solution (TOPSIS) method.Design/methodology/approachFuzzy TOPSIS framework with 27 ambiguity factors is constructed by conducting a comprehensive literature review, accompanied by a pilot study. Questionnaire survey is formed, and one-to-one interviews are arranged with 35 contract administration experts.FindingsThe findings indicate that (1) ambiguity due to excessive changes in the bill of quantity (BOQ) (including ambiguous provisions related to BOQ changes), (2) incomplete clauses that do not describe the scope of the intended work purely, (3) ambiguity due to excessive amendments in the scope of works (including ambiguous provisions related to scope changes), (4) ambiguous enforceability including excessive demands and (5) ambiguous goal and performance requirements are the top five ambiguity factors affecting construction conflicts.Research limitations/implicationsPresented framework is performed referring to ambiguity factors in all type of construction contracts in the general sense. However, the identified factors may vary depending on the project type, contract type, procurement method or use of standard contract forms (such as NEC, FIDIC).Originality/valueThe literature lacks the investigation of ambiguity factors in construction contracts, yet the assessment of the effects of contract ambiguity is essential to minimize conflicts.

Case Note: Uneasy Lies the Head that Wears a Crown: Moyo v Old Mutual Limited (22791/2019) [2019] ZAGPJHC 229(30 July 2019) and Old Mutual Limited v Moyo (2020) 41 ILJ 1985 (GJ)

Confidentiality is seen as one of the pillars of mediation. Parties to mediation rely on this essential aspect of mediation in order to protect themselves against the subsequent use of confidential information which has been divulged during mediation and outside the mediation process. The mediation agreement is seen as one of the basic legal foundations for the application of mediation confidentiality as it constitutes a contract between the parties, and it also contains a confidentiality clause. This article deals with contract as a basis for mediation confidentiality. It considers the nature of mediation as well as the parties involved in mediation. It further discusses some of the principles of contract law and the interpretation of contract law in South Africa in the light of the mediation agreement.

Contract as a Basis for Mediation Confidentiality

Confidentiality is seen as one of the pillars of mediation. Parties to mediation rely on this essential aspect of mediation in order to protect themselves against the subsequent use of confidential information which has been divulged during mediation and outside the mediation process. The mediation agreement is seen as one of the basic legal foundations for the application of mediation confidentiality as it constitutes a contract between the parties, and it also contains a confidentiality clause. This article deals with contract as a basis for mediation confidentiality. It considers the nature of mediation as well as the parties involved in mediation. It further discusses some of the principles of contract law and the interpretation of contract law in South Africa in the light of the mediation agreement.

The Interpretation of Contract in Chinese Contract Law: A Comparative Perspective

This chapter examines two closely connected issues in defining the contents of contracts in China: first, the approaches adopted in interpreting the meaning of agreed contractual terms and, second, to what extent additional terms are implied to supplement the express terms. It discusses the underlying philosophy of interpretation with regard to the dichotomy of ‘objective’ and ‘subjective’ approaches; it details the various interpretative aids, such as customs, usages, the commercial background, and the negotiations of the parties; and it shows how Chinese law resolves the tension between literalist and contextualist approaches to interpretation. A number of hypothetical scenarios illustrate how Chinese courts deal with issues of contractual interpretation and gap-filling in practice.