This is part 13 in an ongoing series on notices under FIDIC Silver Book 2017. This post covers the provision for notices in Clause 17 (Care of the Works and Indemnity) and Clause 18 (Exceptional Events).

Clause 17 (Care of the Works and Indemnities)

Sub Clause 17.2 (Liability for Care of the Works). The Contractor shall have no liability whatsoever, whether by way of indemnity or otherwise, for:

  • loss or damage to the works
  • goods, or
  • Contractor’s documents

caused by any of the events, like:

  • interference with any right of way, light, air, water, or other easement
  • use or occupation by the Employer of any part of the permanent works,
  • fault, error, defect or omission in any element of the design of the works by the Employer,
  • unforeseeable forces of nature or operation,
  • any of the events or circumstances listed under Sub-Clause 18.1 (Exceptional Events) and/or
  • any act or default of Employer’s personnel or Employer’s other contractors.

If any of these events occur and results in damage to the works, goods, or Contractor’s documents, the Contractor shall promptly give a notice to the Employer.

Thereafter, the Contractor shall rectify any such loss and or damage that may arise to the extent instructed by the Employer. Such instructions shall be deemed to have been given under Sub-Clause 13.3.1 (Variation by Instruction).

Sub-Clause 17.3 (Intellectual and Industrial Property Rights). Whenever a Party receives a claim but fails to give notice to the other Party of the claim within 28 days of receiving it, the first Party shall be deemed to have waived any right to indemnify under this sub-clause.

Clause 18 (Exceptional Events)

Sub-Clause 18.2 (Notice of an Exceptional Event). If a Party is or will be prevented from performing any obligations under the contract due to an exceptional event, then the affected Party should give a notice (within 14 days after the affected Party becomes aware of the exceptional event) to the other Party of such an exceptional event, specifying the obligations of which performance is affected.

The affected Party shall then be excused performance of the prevented obligation from the date such performance is prevented by the exceptional event.

If this Notice is received by the other Party after this period of 14 days, the affected Party shall be excused performance of the prevented obligations only after the date on which this notice is received by the other Party.

Sub-Clause 18.3 (Duty to Minimise Delay). If the exceptional event has a continuing effect, the affected Party shall give further notice describing the effect every 28 days after giving the first notice.

The affected Party shall immediately give a notice to the other Party when the affected Party ceases to be affected by the exceptional event.

On the failure to give notice, the other Party may give a notice to the affected Party stating that they consider that the affected Party’s performance is no longer prevented by the exceptional event with reasons.

Sub-Clause 18.5 (Optional Termination) If work is prevented for a continuous period of 84 days or for multiple periods of a total of more than 140 days due to the same exceptional event, then either party may give a notice of termination of the contract.

The date of termination shall be the day seven days after the notice is received by the other Party and the Contractor shall proceed in accordance with Sub-Clause 16.3 (Contractor’s Obligations after Termination). The Employer shall issue a notice under Sub-Clause 14.6.1 (Notice of Interim Payment) for the amount agreed or determined without the need for the Contractor to submit a statement.

Sub-Clause 18.6 (Release from Performance Under the Law). In addition to any other provision of Clause 18, if any event arises outside the control of the parties (including but not limited to an exceptional event) which:

  • makes it impossible or unlawful for either or both Parties to fulfil their contractual obligations or
  • under the law governing the contract, entitles the Parties to be released from further performance of the contract, and

if the parties are unable to agree on an amendment that would permit the continued performance of the contract then,
either Party gives a notice to the other Party of such events. and

  1. the Parties shall be discharged from further performance and
  2. the amount payable by the Employer to the Contractor shall be the same as would have been payable under Sub-Clause 18.5 (Optional Termination), and it shall be paid by the Employer as if the contract has been terminated under that Sub-Clause.

This series is now complete and is available as a PDF by emailing the subject line Silver Book Notices to hello@instituteccp.com. Each post can be read on the blog at these links:
Part 1: An Introduction to Notices under FIDIC Silver Book 2017 Edition
Part 2: The Objective of Notices and What to Avoid
Part 3: Notices under Clauses 1-3
Part 4: Notices under Clause 4
Part 5: Notices under Clauses 5-6
Part 6: Notices under Clauses 7-8
Part 7: Notices under Clauses 9-10
Part 8: Notices under Clause 11
Part 9: Notices under Clause 12
Part 10: Notices under Clauses 13-14
Part 11: Notices under Clause 15
Part 12: Notices under Clause 16
Part 13: Notices under Clauses 17-18
Part 14: Notices under Clause 20
Part 15: Notices under Clause 21

This guest post was written by Mansoor Ali, FICCP and Jishma Joy. It is the thirteenth post in a multi-part series and was originally published as two LinkedIn videos, viewable here and here

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