Suspension of construction
(Правовое руководство по составлению строительных контрактов)
This chapter deals only with the suspension of construction and not with the suspension of any other obligations under the contract. As no developed doctrine of suspension exists in most legal systems, the parties may wish to consider the inclusion of a clause in the contract permitting suspension of construction, defining the circumstances in which suspension may be invoked and describing its legal effects (paragraphs 1 and 2).
The parties may agree to permit the purchaser to order the suspension of construction only upon grounds specified in the contract (paragraph 3). Alternatively, the parties may consider including a provision enabling the purchaser to order suspension of the construction of works for his convenience (paragraph 4).
The contract may give the contractor the right to suspend construction in two specific circumstances. The contractor may be entitled to suspend construction firstly as an alternative to the more drastic remedy of termination in cases where the failure to perform an obligation by the purchaser is serious enough to justify such termination, and secondly when a failure of performance on the part of the purchaser makes it unreasonably difficult for the contractor to proceed with the construction (paragraphs 5 to 7).
The contract may settle the procedure to be adopted for suspension. Thus, the suspending party may be required to deliver a written notice of suspension to the other party. The purchaser may be required to deliver a written notice of suspension to the contractor specifying the effective date of the suspension and the construction activities to be suspended (paragraph 8). Furthermore, the parties may wish to consider whether the exercise of the right to suspend by the contractor for failure of performance by the purchaser should be conditioned upon a written notice being given to the purchaser requiring him to perform within a specified time and what exceptions there are to be to this (paragraph 9). The contract may also provide a method of determining what the duration of the suspension is to be (paragraphs 10 and 11).
The contract may provide that when suspension of construction has been ordered, all the construction activities to which the order relates are to cease, but that the construction of other parts of the works is to continue (paragraph 12). The contractor may be entitled by the contract to an extension of time to complete the construction in order to make up for the period of suspension and the time required to remobilize personnel and equipment (paragraph 13).
The contract may provide for the application of its terms to the resumed construction following the period of suspension. However, other contract terms, in addition to those directly affected by the suspension, may need to be harmonized with the suspension clause (paragraph 14).
Suspension may have a considerably disruptive effect on the construction of the works by the contractor and may put into question the financial viability of the contract to the contractor. Accordingly, the contract may make the purchaser accountable to the contractor for any losses suffered by him. It may be difficult after suspension has occurred to determine the losses to be compensated by the purchaser. It may therefore be desirable for the contract to list the losses to be compensated (paragraphs 15 and 16).
In certain circumstances the contract might permit the contractor to terminate the contract rather than to continue the suspension (paragraph 17). The contract may obligate the contractor to resume work only after a reasonable period of time has elapsed since the ending of the suspension (paragraph 18).