Guide to Using the RIBA Professional Services Contracts 2018 - Other - Page 37
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Guide to RIBA Professional Services Contracts 2018
circumstances, the Architect/Consultant should all confirm such actions to the Client
without delay and in writing.
The Contract gives the Architect/Consultant the right to publish photographs of the
Project for 2 years after practical completion of the construction works. Approval to
do this must be obtained from the Client but that permission cannot be withheld or
delayed, without good reason.
All parties to the Contract have a mutual confidentiality clause.
Key watchpoints
• In any contract with a consumer client, discuss and agree the terms of the PSC.
• Keep an accurate record of the discussions and send a copy to the client.
• Do not proceed with the services if there is any uncertainty about the terms of
the Contract.
• Ensure that either the client gives instructions to proceed with specific tasks,
or can be shown to have done so. In either case, make certain that the terms,
and in particular the fees, for undertaking the work are clear in each invoice.
• Ensure that a consumer client understands their role and responsibilities
under both the PSC and the building contract.
• Do not accept the standard of ‘fitness for purpose’.
• You may have to consider walking away from the project if the standard terms
are not accepted and discussions with the client fail.
4.3Assignment
This section covers the right of either the Client or the Architect/Consultant to be
able to transfer their roles and responsibilities to a third party and relates to matters
that the Architect/Consultant needs to consider when assessing the assignment
options to minimise extending their liability. These clauses require the consent of the
other party to the Contract before the assignment can take place, also the Architect/
Consultant is required to obtain the Client’s prior approval before sub-contracting any
part of the Services and/or for others to perform part of the Services.
A basic principle of Contract law is that only the parties who have entered into the
Contract are bound by the Contract. This is called ‘privity of contract’. However, there
are exceptions to the general rule, including the important concepts of Assignment
and Novation. When a party to a contract wishes to assign the benefit of the Contract
to a third party, the consent of the other original contracting party is not required. All
that is required is an agreement between the original contracting party and the third
party. However, many Contracts, including the RIBA Professional Services Contracts
2018, prohibit assignment of specific rights, or even all the rights under a Contract in
which case the terms of the specific Contract must be checked.
Assignment
An Assignment occurs when an original party to an existing Contract transfers the
rights and duties of the Contract to another party. A party can assign the entire
contract, meaning that the party assigns both the rights and the obligations of the
contract. Ideally, the original party wants the new party to step into their shoes and
assume all their contractual obligations and rights. To do that, the new party to the
Contract must be properly notified. However, Assignment should not be confused
with Delegation. Assignment and Delegation are two distinct legal concepts that
must be separately addressed because they may have different consequences.
The RIBA Professional Services Contracts 2018 include a standard contract
provision also known as an anti-assignment provision. This provision provides for a
contractual limitation on the assignability of contractual rights and the delegation of
contractual duties. This prevents either the Client or the Architect/Consultant from
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