NEC ECC: Contractor Entitlement to Change of the Price

NEC3 is adopted.

ECC clause 62.2 is amended to delete the Contractor’s entitlement to change the Prices for a compensation event if an event caused by the Employer which stops the Contractor completing the works or stops the Contractor completing the works by the date shown on the Accepted Programme.

If the above term will be treated as a unfair term of the contract and to be unenforcable?

Very difficult to determine what would be an “unfair” contract term in the eyes of the court, but I think the answer would be surprisingly few, plus you have to go all the way to court to find out and test it. Is there such thing as unfair risk transfer when the rules were clear when the Contractor signed up to the contract? Contractors have to very carefully weigh up the implications of Z clauses when they sign a contract. They should try to get a clause amended, or price the risk or walk away from the tender altogether. I would never recommend a fourth option which is ignore it as it may be legally unenforceable and take your chance in court.