| Calming Claims by prioritizing Intention - by Eng. S.D.S. Deshapriya, RDA |
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It was a debatable matter in the law field few days back regarding the validty of contesting for third term by the previous president . The argument from one side is that he was not qualified because of not following the procedure correctly to get qualified for contesting. The other party denied it saying that the intention or objective is of prime importance and hence the adherence to the procedure is a secondary matter. That seems to be a very valid argument because, a simple mistake or deviation of one party should not make a chance for the other party to defeat the intention & to change the whole scope or the whole matter . {Not only in this case ,but in general also (willful)intention is given the prominence in law when deciding the cases (specially the murder cases);hence in one hand, the above argument is not a new thing to the law.Hence the writer has taken the above particular issue and mentioned the importance in this instance not to favour any party (those who are involved),but solely to extend it to the Civil Engineering field also & only to get the advantage of it for solving the disputes in this field }
Contractual claims are formed based on the conditions of contract , according to the provisions there in & interpretations. Contract agreement comprises of a set of conditions of which agreed upon by the contractor & the client to perform & fulfill during the construction is going on. Both the parties of the agreement are with a general norm that no party is coming to the agreement, with a willful intention of loosing or falling the other party in trouble & they are in good faith. In the context of contractual claims , there are very obvious claim situations such as delay in instructions & decisions, machines ideling due to work stoppage, idling due to shifting of services ,due to attending for extra work, instructions for acceleration,etc. This is the first category of claiming. In addition to these obvious situations ,claims are seems to have been lodged for some other situations also, which are not much clear & not straight forward as above. Some of the loop holes in the clauses,some of the discripancies,ambiguities in contract clauses, when some requirement is not very specifically stated in writing or covered situations in the document, laps in the contractual procedure (not following & fulfilling the correct contract procedures) , deviations & omissions, way of interpreting,ignoring implied terms ,general practice ,norms,back ground , innocent mistakes,wrong assumptions etc. are the examples to such unclear situations. It can be considered as the second category of claiming.
With regard to the occurrences of the first category,claim situation is very obvious & no arguments ;hence the contractor is entitled for claiming extra . Compare to the first ,mostly for the second category will be having strong points to be argued by the both parties for & against the claim .It is resulted, because of this unclear & disparity nature of the claim.Hence,mostly the second category ,due to this unclear nature will lead to extend (drag-on)the matter till arbitration for a final decision . Hence this paper will look into the latter type(second category ) of claims which mentioned as unclear situations ,ambiguities etc & solving of the claims promptly by stressing the intention & with due respect to the same (as in above court case) without dragging –on till arbitration.
In contractual claims, some times the contractor is trying to get the advantage of the situation by claiming from the client in extra sum of money & some times the client is trying to get the advantage by requesting the contractor to do at his cost while assuming that it has been covered in the document & included in the rates. Sometimes the procedural errors (of claiming process) of the contractor also will lead to loose his entitlements. Hence due to this situation is equally affected to the both parties.Hence the application of technique (giving preference to the intention) to solve the claims, will benefit to both parties equally.
Hence above application (of giving preference to the intention) is considered here for three claim situations. Claims with procedural errors,claims due to other factors,claims with willful (wrong)intention are the three types which taken up here for solving by the above technique. These three claim situations are considered separately.
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As far as the contractual claims are considered ,argument made for the validity (supremacy) of intention over the procedure (which had been raised in the above court case) is also very important Hence ,with respect to the first category of claims, above court case is having a direct relationship & similarity in nature.Therefore same technique (of preference) can be applied directly to solve the first category of claim situations by disregarding the procedural errors in claim processing .Therefore the claim will not be nullified merely due to the procedural errors & it will be taken to proceed further ,since the intention of the party who lodged the claim, dominates. |
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Apart from the procedural errors, there are many other factors & situations such as discripancies,ambiguities,unspecified matters, exclutions,deviations, omissions, mistakes etc. as stated earlier , which give rise to clam situations.In the light of this concept (of preference to the intention),these factors are to be considered.In otherwards all the factors,situations etc. have to be analized with respect to the intention (prioritizing intention or objective).Hence through this approach, will cause to nullify many claims.
Stressing the intention(or objective) is seems to be a very strong concept & a technique ,to solve the conflict situations which are debatable.Since this concept works in conflicts beyond logic,same can be used to solve the conflicts which are arguable & having stronger points by the both parties. This will give rise to more sensible ground for the solutions beyond logical mechanism & back ground.Hence through this mechanism( of giving preference to the intention) will facilitate for both justification/nullify & evaluation of the claim in balance manner.
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Some times for the sake of arguing it seems that even very obvious situations are not considered & ignored intentionally. As a result of this ,role of fare play is disappeared . It is not relevant or limited to an one party only. This is the case which relevant to both the client as well as the contractor. Similarly this is not limited to one organization or one particular client but this is common in the construction industry. Most of the foreign contractors are claim conscious & Therefore the claim departments are maintained separately for thisd purpose.Bidding less to win the bid with the intention of claiming extra later on is the technique they follow usually.Hence undoubtedly ,the claims are to be expected from them & the care must be taken to find the direct as well as the hidden intentions of these contractors who lodge the claim ,before proceeding.Then this suspicious looking it will give the access to find their hidden objectives & intention & also more factors which were hided intentionally perhaps which nulifing the claim at all. Hence the concept of “giving preference to the intention” has been manipulated in three different ways in these cases.Role of domination,as a basis for the evaluation,(hidden)intention & decisive factors to be find out , are these forms which highlighted here. |
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| Above three situations shows that ,through this method will be able to solve many claim situations without resorting for arbitration . How ever, technically it is a issue which connected to the documentation.Further , as far as considering the difficulties & time spending, prevention as much as possible is the best than trying to solve the claim once it occurs .It seems that most of the ambiguities,discrepancies,doubts etc. are avoidable & these can be addressed at the document stage .Hence the document updating is essential with regard to the prevention of claims are concerned. Mostly the occasions & situations which are not covered by the documents will give rise to the claim situations.Hence inclusion of all possible situations & its combinations (combined situations) to the documents,giving preference,arresting through further detailing at the second stage,giving inter-pritations will be very meaningful & become the major steps to be taken at the documentation stage ,in order to mitigate the claim situations. |
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