We are the subcontractor on a highways scheme, one of our sub-subcontractors has delivered materials to site within the working area but they have been stolen overnight. The contract we have with the main contractor includes a Z clause which deletes clause 70 and replaces it with the following line:
“70.5 The Contractor’s title in Plant and Materials passes to the Client when it is brought within the Working Areas, but (subject to clause 80.1) the risk of loss or damage to the Plant and Materials remains with the Contractor.”
We have passed this same clause onto our Sub-subcontract under an NEC4 format subcontract, but they are refusing responsibility for the materials and believe that the client was responsible for the materials while they are on site, the main contractor will not accept this. Under the attendances schedule which forms part of our contract with the main contractor, they are responsible for providing storage space for the materials, but I don’t believe this has been provided.
The sub-subcontractor has not returned their signed sub-subcontract, have they accepted by conduct if they have begun carrying out the works in line with the contract prior to signing and returning?
I believe theft from site will be an ongoing issue unless security is increased, what is my best course of action if the main contractor doesn’t want to provide further security?
Trying to address your queries.
There is a contract in place with your sub-subcontractor but what it is will depend upon the facts. Did you send them a contract for executing or did you accept an offer from them. If you sent them a contract for executing and this has not happened then you will need to check any correspondence leading up to their start on site, google search battle of the forms.
Regarding theft, the risk will depend upon the actual wording of your subcontract and sub-subcontract. You have said the Z clause in your subcontract states “Contractor” in which case it is the Contractor (unless there are expressed provisions regarding interpretation). Likewise if you have passed on the same wording in the sub-subcontract then they are not responsible.
Wording of the subcontract needs to be confirmed, if it was an NEC short subcontract or just short contract. The parties are defined differently in each. Also check the materials delivered have been paid for in full by the subcontractor otherwise the title cannot be transferred on delivery, I would say the lack of signed subcontract would only help support this. Can you confirm the insurances held by the subcontractor without the signed contract? His insurance may cover this as a last resort, but it may null and void without a contract.
At any rate, the instruction to supply and deliver materials was acted upon, invoking some form of contract, proof in writing would support this.
Thanks for your response to the above, I appreciate it has been a few weeks since you responded, but to confirm I sent a contract for executing, I did not accept their offer and there is correspondence for coordinating the works prior to attending site and these did not contest the contract terms.
There is a provision which changes the interpretation to the contracted party i.e. the ‘Contractor’ shall mean the ‘Subcontractor’ and we have also included this within the contract with our Sub-subcontractor stating it shall mean the ‘Sub-subcontractor’.