Legal Advise Essay Example | Topics and Well Written Essays - 2500 words

Legal Advise - Essay Example MSO  §113(1) hereinafter â€Å"HFCRA†). The question is whether this provision applies here. If it does, then the provision would be regarded as ineffective, therefore void. The analysis of this would begin by analyzing the parties. The parties to the construction contract are Strummer Construction Ltd. and Clampdown Developments, Inc. Celtic Tiger Bank is financing the project, but is not a party to the contract, therefore would be considered to be a third person. Yet, Celtic Tiger Bank is essentially running the show, as their officers would be the individuals who must approve extensions, variations more than ?25,000, loss and expense determinations. If their officers do not approve this, then the party requesting any of the above would not get paid, and the extension of time would not be approved. Therefore, this clause may be invoked, as the CTB is the contract administrator, and is not a third party, and they dictate as to whether or not money will change hands. Moreove r, they are not insolvent, so this clause may hold water. CTB is a third person, yet they are creating the conditions by which both parties must abide. But is this amendment â€Å"A provision making payment under a construction contract conditional on the payer receiving payment from a third person?† Clampdown Developments is the party who is in charge of making payments to Strummer. If Strummer does not comply, then the payments would not be made from CTB to Clampdown Developments, and this, in turn, would cause Clampdown Developments to not make payments to Strummer. The architect was the one who was issuing the offending variations, and, as a result, CTB has refused to pay monies to Clampdown, and, in turn, Clampdown has not paid Strummer. So, it seems that the payment from Clampdown to Strummer is, in fact, conditional upon Clampdown receiving payment from CTB, who is a third person, and that these payments are conditional upon CTB approving them. Therefore, there is the possibility, if a court can interpret this clause in such a way, that the clause would be ineffective. Another issue is whether or not there was even a contract formed anymore, because this Bill of Quantities in effect substantially changed the contract that the parties had already formed. This would be considered to be a counteroffer, which effectively cancels the original offer (Hyde v. Wrench [1840] EWHC Ch J90). However, this situation is similar to that in the landmark case Butler Machine Tool Co. Ltd. v. Ex-Cell-O Corp. Ltd. [1977] EWCA Civ. 9. This is the case that established that, in a battle of forms, the form that was accepted last would the one that controls. Certainly the parties accepted the additional terms, as they performed without objection to the terms. Therefore, Butler controls, and the last form, which is the one that contained the amendment, is the one that formed the contract. So, the amendment would be a part of the contract, if there were not the issue of t he privity of contract and