Disputes Arising from Unclear and Absent Clauses in Construction Contracts - Focus on the Model Contract for Construction Procurement

• Main Authors: YAN-YU LIN, 林彥妤
• Other Authors: SHENG-MIN WU
• Format: Others
• Language: zh-TW
• Published: 2016
• Online Access: http://ndltd.ncl.edu.tw/handle/gdqmd9

碩士 === 朝陽科技大學 === 營建工程系 === 104 === Under the construction procurement system in Taiwan, the government agency and winning tenderer are required to sign a contract in order to officially establish a contractual relationship between the two respective parties. If construction disputes were to occur, this contract would then serve to validate the contractual relationship and contract details agreed upon between the parties, as well as to provide credible evidence for any third parties as needed. For public construction project contracts, the “Model Contract for Construction Procurement” issued by the Public Construction Commission is used as a foundation. Because of the comprehensiveness of this model contract, many government agencies have adopted it for use over the years. However, as the construction industry and technology has advanced, clauses in the model contract may become unclear or even absent with respect to modern practices and circumstances. This becomes problematic when disputes arise and the parties cannot agree on definitions of a certain contractual language due to such unclear or absent clauses. Due to the comprehensive nature of construction projects encompassing a vast range of disciplines, the content of construction contracts tend to be more complex, thus leading to greater probabilities of encountering unclear and absent clauses. For example, contract clauses involving warranty period coverage are often determined by designations of elements as either structural or non-structural, yet the definition of what is considered structural or non-structural is frequently unclear in and of itself. If defects were to happen involving elements at interfaces of such structural and non-structural areas, the unclear or absent clauses and lack of relevant definitions may lead to disputes and a failure to compromise between the contractual parties when one side demands warranty responsibility from the other. Based on the situation described above, this study examined real-world circumstances where unclear and absent clauses occurred in construction contracts. With a focus on warranty clauses, the study aimed to establish a complete and thorough set of countermeasures for dealing with unclear and absent warranty clauses in construction contracts. Through the examination of such occurrences of construction disputes, this study aspires to invoke and stimulate considerations for establishing clauses in other areas of construction contracts.