‘Time is of the essence’ is a term used in Contract Law expressing the need for a timely completion. This means that a contract must be completed in a reasonable time, ‘reasonable’ depending on the circumstances and facts in the case.
If Time is of the Essence (OTE) is included in a contract, the wording must be very clear in stating the circumstances under which the contract shall be deemed to have complied with or failed to meet that strict time limit. Usually used in a COMMERCIAL business contract, it means a deadline as a condition of the contract being awarded. Failure to meet the imposed time limits entitles the OTE buyer to terminate the contract (entitles but does not oblige) even if the deadline is missed. (Often used in house purchasing agreements, but occasionally it slips into non-commercial or domestic contract language as clients are aware of the phrase in their working environment and include it in their private lives)
If the contract is OTE, a client cannot cancel or invoke the termination of the contract if the delay was caused by the customer by making it impossible or impractical for the other Party to meet that deadline. In these circumstances, the specified deadlines are replaced with a Duty to Perform within a reasonable time. (This clause prevents a customer from creating obstacles in a vexatious or unreasonable manner, causing the contracted time scale to slip or fail to be met on time, thus allowing a claim to be made for damages and costs)
Irrespective of the inclusion in a domestic landscape contract (or Designer Agreement) of the precise phrase of OTE, some customers will add a particular codicil (a term used to add or supplement something that explains, modifies or revokes a contract of part of it (often used in wills) that expressly demands that certain deadlines are met. Perhaps a planned wedding or party, or to meet a Planning requirement, where deadlines form an important element of the contract being awarded in the first instance. In other words, the deadline factor was the deal binder, your agreement to meet set deadlines setting you apart from your competitors, over and above price considerations.
As Landscape Contractors, we are using a wide variety of materials, mainly ‘hard’ or construction products that are exactly the same as those used in by Builders when housebuilding. Sand, cement, bricks, blocks, paving, tiles, adhesives, bonding agents, pointing compounds, and a wide range of similar universal building units.
As Landscape Contractors, we are used to producing Terms & Conditions, work schedules, CDM Plans and Contracts where Time is of The Essence, whether or not we actually use that term. Landscapers, when working, tend to be time orientated, with a fixation on targets, determined to meet the works schedule irrespective of site conditions, weather factors or anything except to finish each section, one at a time, moving forward, forward, trying to get the job done before moving on to the next site.
As Landscapers, we attempt to mitigate weather conditions with tents, shelters and ground boards, heat guns and blowers, working through temperatures and humidity levels that we know are on the limit of those set out in the instruction leaflets. Carefully checking the weather forecast for frost and night temperatures. Covering the works with hessian, adding anti-freeze to the mortar mix. Rapid hardening compounds to accelerate the curing process before the weather deteriorates……..
Because we are deadline fixated, to finish on time at all costs, irrespective of sound practice when it comes to ignoring temperatures, applying grout when conditions are too hot/cold/wet etc; we continue to take chances that frequently come back as Dispute issues, when the pointing has cracked/failed, or heat has caused problems with cementitious films covering the paving. Because the contractor was in too much of a hurry, even though the customer is vocal in demanding more speed, more action, hurry, hurry, the project often fails at a later date. By which time of course, the customer has forgotten all about their part in the problem, and start litigation.
‘I employed a professional Landscape contractor to know what they were doing. They cannot blame me for anything!’
For whatever reason, Landscapers have allowed customers to believe that we are able to carry out works in a different fashion and under a different set of compliances than those imposed by clients on a Builder.
Customers seem to understand and believe that certain elements of a project – using the same materials – a Builder has an aura of steady compliances that a Landscaper does not.
If a Builder must lay a concrete foundation, if the excavation is full of ground water, the concrete cannot be poured until conditions are right. They do not expect and demand that a Builder lays bricks when weather conditions are too hot/cold/wet. They KNOW that concrete must cure for a number of weeks before the side boards are struck, and bricklaying can commence.
Tilers will not think about commencing laying activities until the foundation screed is 100% dry, checked with a hydrometer.
Rendered walls cannot be painted for at least thirty days after finishing, and a customer would be surprised to see a painter working on a newly fitted sand and cement surface. They would be agitated to see a tiler working on a newly rendered bathroom wall, yet expect Landscapers to do continue laying without any curing times!
These variations in expectation may be explained in simple terms of communication. Builders know their work schedules and product curing times. They will adhere rigidly to instructions on products labels, as to do otherwise would leave them wide open to litigation. All of these factors are included in their programmes and contract terms, especially when it comes to payments. These are not based on ‘completed project’ conditions, but on time and calendar dates. They have no need, or wish, to accelerate the project, as their curing times allow for a number of time ‘cushions’ that may be moved around according to site conditions at the time.
A major problem for Landscape Contractors is finishing projects on time. Meeting deadlines despite delays, adverse weather, ground conditions, carrying out specific works knowing that conditions are not right, just to finish on a schedule written months ago can be fraught with difficulties.
Many of these problems are self-imposed if you consider the nature of our work. Instead of creating a series of contractual blockages surrounding fixed points within a contract, irrespective of site conditions, why not devise less stringent time scales, and allowing products and their restrictions to dictate the speed of works? Less speed, more recognition of the materials we are working with, taking greater care in meeting product specification regarding curing times, temperature and moisture conditions will enable you to prevent the rush to ‘finish on time’, and allow your labour force to gradually reduce on one scheme and start another without the unnecessary clamour of ‘Start One Project, and Finish Before Starting The Next’.
And greatly reduce the risk of an expensive dispute involving the Courts……………
Alan Sargent FCIHort PMGCA