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NEC TSC: Does the wording of Clause 90.2 exclude common law termination?

+2 votes
197 views
Clause 90.2 read in part states, '' The Contractor may terminate only for the reasons identified in the Terminating Table. The Employer may terminate for any reason.''
Its a given under common law that contractual termination rights will operate in addition to common law rights to terminate unless they are expressly or implicitly excluded.Would it be correct to  conclude from the wording of the clause that the Contractor  is excluded from common law termination?Can the words ''-----may terminate only for the reasons identified in the Terminating Table.'', be  taken as express or implied exclusion of the common law right of termination?
On the other hand the Employer is given the right to terminate for for any reason, which one would argue, includes common law rights of termination.
The  Guidance Notes appear to support the  above observations.
asked Apr 12 in Termination by M (350 points)  

3 Answers

+2 votes
 
Best answer
In short, yes it does. The clause is clear that the only rights of C are as stated in Cl. 90.2. That means C’s rights are contractual to exclusion / limitation of those rights existing otherwise under common law. By contrast, the E’s rights are expressed as being for any reason - that means E is not confined in any way by contract therefore full common law rights exist.
 
It will be a secondary question as to the amount of £ payable on termination - in both cases the contract > common law rights to “compensation”.
answered Apr 12 by Sarah Schutte (660 points)  
selected Apr 13 by Neil Earnshaw
+1 vote
I am with you up until the last sentence, except the words for the Contractor expressly, imo, exclude the common law rights.

The clauses you refer give the right for the Employer to terminate for any reason, but the procedure and amounts due are prescribed in the contract. The last of these may be reflective the common law position, but it is expressly and more precisely stated in the contract
answered Apr 12 by Jon Broome (49,300 points)  
+1 vote
This is a really interesting question and generally I agree with Jon and Sarah there is a real difficulty around R11 being just available to the Employer and I think there is a way back in here for the common law.

While I agree that termination is prescribed under 90.2 it does not capture all ways of bringing a contract to an end. So, most relevantly, if the Employer were to repudiate the contract (ie show that it does not consider itself bound by the contract) that would bring the contract to an end. It is not, technically, a termination so 90.2, at least arguably, would not apply.
answered Apr 13 by Rob Horne (18,730 points)  
edited Apr 13 by Neil Earnshaw