Book Review – Finsen’s The Building Contract

A Commentary on the JBCC Agreements (3rd Edition)

by Stan Segal (601 pages)
Juta & Co (Pty) Ltd www.jutalaw.co.za

Finsen's The Building Contract“When we build, let us think that we build forever.”– John Ruskin (1819-1900)

In the preface to the second edition of this book (2005), the author Eyvind Finsen observed that

“…the building industry, like almost every aspect of modern life, doesn’t stand still…”.

The pace of that transformation continues to increase. Arthur Mamou-Mani, a lecturer at Westminister University, is a proponent of computer-generated design in architecture. He says:

“I feel its evolving into a much more material craft. It’s not about computers. It’s about developing and understanding the craft of marrying new machines and new materials.”

Mamou-Mani’s practice seeks out ways of building that will make architecture, engineering and construction merge into a single field.

“We don’t need to surround ourselves with buildings that we construct when everything is going well, only to leave them empty when their time is past. Why do we think that permanence is necessary?”

This school of thinking proclaims that the best cities are the ones that don’t leave ruins. Mamou-Mani urges that we “…think about our materials in a new way, from their growth to their assembly, to their disassembly and their reuse or recycling.”

The publication of this revised and updated third edition of what is widely recognised as a leading reference work in the construction industry will be welcomed by all who use building contracts in their daily work: architects, quantity surveyors, contractors, sub-contractors, project managers, client bodies and legal practitioners involved in construction dispute resolution and litigation.

The format of the book makes it an effective and practical aide to the task it addresses. Successive chapters set out the terms of the respective agreements – the Principal Building Agreement, the Minor Works Agreement, and the Nominated / Selected Subcontract Agreement – followed by explanatory commentary on that particular portion of each agreement.

The suite of agreements are those of the Joint Building Contracts Committee (JBCC), which is representative of building owners and developers,
professional consultants and general and specialist contractors who contribute their knowledge and experience to compilation of such documents. They reflect the consensus view of the constituent members and are published in the interests of standardisation and good practice with an equitable distribution of contractual risk.

All aspects of the construction contracts are dealt with such as tenders and letters of intent in the formation of the contract, indemnities, design responsibility, penalties for late or non-completion, termination and dispute resolution.

The final section of the book includes the standard JBCC documents available, including general preliminaries, certificates of site possession, completion and payment, adjudication rules, and practical completion guidelines.

Primarily intended as a reference guide for the construction industry, this work does not pretend to do more than provide a brief survey of the law of contract. Indeed, in his preface to the second edition, Eyvind Finsen acknowledged that as most of the readers were likely to be laymen in the field of law, he had only included a consise and

“…elementary statement of the law of contract, and I trust that members of the legal fraternity will not be offended at the excessively simplistic manner in which I have treated what is a vast and complex subject.”

That is a sensible and entirely appropriate approach. Nevertheless, lawyers will find it somewhat odd that the bibliography of only twelve books includes works published as long ago as 1929, 1951, 1955, 1979, 1989, 2004, 2005 and 2007.

The author of this edition, Stanley Segal, is a seasoned architect, arbitrator, adjudicator, mediator and expert witness, with a lifetime of service to the architect’s profession and construction industry in many office-bearing and leadership capacities. As a long-time associate of the late Eyvind Finsen, he is ideally equipped to master the daunting task of updating this third edition.

The challenge of creating, maintaining and integrating a built evironment in a developing country such as South Africa which meets the evolving needs of its people and economy is fundamental to a cohesive application of precious
resources, technology and best practice planning. The wealth of information, guidance and hands-on advice within the pages of this book promises to make a significiant contribution to that endeavour.

The virtually annual reprints by publisher Juta of the second edition is eloquent testimony to the continuing demand this book has always generated. That pattern will doubtless continue, and justifiably so. Like bricks and mortar, knowledge is best based on solid foundations.

Review by Louis Rood BA LLB (UCT), Consultant at Fairbridges Wertheim Becker Attorneys.

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