Guide to Using the RIBA Professional Services Contracts 2018 - Other - Page 34
Contract terms
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before the agreement is made, the negotiations may become one-sided or some
terms may become void in a dispute. If the two parties cannot agree to standard
practices, each should consider their risks before proceeding.
The discussions are intended to enable the consumer client to ‘influence the
substance’ of the terms and minimise the risk that subsequently they would be
consider to be unfair to the Client. It is not unheard of for a consumer to claim
subsequently that they did not understand the implications of a term.
Adequate time must be given to the domestic client to study the proposed Contract,
to seek more information, or to discover the meaning of certain provisions. It may
prove beneficial to send a draft of the proposed Contract to the Client to peruse
before the agreement is finalised.
The obligation to negotiate can be quite onerous for both parties, and it cannot
be hurried. The Architect/Consultant should make a note of the negotiations, in
particular drawing attention to those terms relating to payment, liability and dispute
resolution and any amendments that are appropriate.
Any disagreement needs to be discussed/negotiated as a first step but if the Client
requires amendment to or deletion of any of the provisions, the Architect/Consultant
will need to consider whether the changes are acceptable or whether there would be
any change in liability. Ultimately this could lead to the Architect/Consultant declining
the appointment.
If the discussions are protracted or agreeing the appointment is delayed, it may be
appropriate to send a note of the discussions to the Client immediately after any
meetings as a record.
Note that only if the negotiations to agree the dispute procedures are recorded can
an Architect/Consultant be assured that the decisions of an adjudicator/arbitrator
could not be challenged by a consumer client on the grounds of no jurisdiction.
Copy any note to the Client or attach it to the agreement as a record so that it can be
demonstrated that the negotiations were carried out in good faith, and the reasons
and consequences were clearly explained
The RIBA Domestic Professional Services Contract 2018 is designed to avoid
conflict with a consumer’s rights and simplify the sometimes onerous task of
agreeing the terms of a consumer contract.
In addition to discussing the terms of the appointment, any Architect/Consultant
providing pre-construction services has an implied duty to advise a Client about the
terms of the Building Contract at the appropriate time.
Quite apart from the requirements of the RIBA and ARB Codes to do so, the Architect
should use every endeavour to have all PSCs signed before starting work and
investing time and energy on the project. Should a consumer have second thoughts,
even though the Regulations provide for protection of costs due for work up to the
end of the 14-day period, there is no guarantee that any work would be paid for.
Consumer case law
The importance of ensuring that Architects and Consultants fully agree the terms
of consumer contracts with their Clients have been shown by a number of court
verdicts.
Picardi v Cuniberti1 The Client did not sign the draft agreement with the Architect.
The Architect submitted fee invoices that referred to a revised cost of works, but did
not refer to the draft Agreement. The Architect sought to enforce an adjudicator’s
award and asked the court to declare that the contract should be based on the
[1] Picardi v Cuniberti [2002] EWHC 2923 (TCC) 19 December 2002.
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