Everything You Need to Know About N/A

Not Applicable N/A

1????????Standard contract.

1.1??What happens when N/A is used.

1.1.1????It is common practice for the employer or the contractor to strike out an applicable clause with the term N/A believing that is therefore not applicable to their agreement.

1.1.2????What they have actually done in practice is ?to declare that this particular clause forms no part of their agreement.

1.1.3????If they intended that the risk should be borne by either the contractor or subcontractor then a specific phrase should be used to denote this is the case.

1.1.4????If the person who’s draft of the contract had amended it by stating phrase such as “All At Contractor’s Risk” then that would have been sufficient for the purpose.

1.1.5????It will need such specific words to make it binding on the contracting parties.

2????????Result of N/A when used.

2.1??On non-risk clauses.

2.1.1????If the clause is merely explanatory and does not convey any risk to either party then it is clear that the contracting parties consider it unnecessary.

2.1.2????Typically they would apply to descriptions of such things as:

2.1.2.1???Sectional completion.

2.1.2.2???Insurance options.

2.1.2.3???Fixed price or fluctuation options.

Etc

2.2??Risk clauses including time and money.

2.2.1????If a particular clause is no longer applicable to the contracting parties then the party that struck it out as being N/A would normally be accountable when that risk arises.

2.2.2????This is based on the principle of Contra Preferentum, where he who makes the changes bears the risk.

2.3??Time Risk.

2.3.1????This is particularly applicable where relevant events causing delay are struck out as N/A such as:

2.3.1.1???Exceptionally adverse weather conditions.

2.3.1.2???Works carried out by statutory undertakers.

Etc.

2.4??Money Risk.

2.4.1????Any divergence between Employer’s requirements and Contractor’s proposals.

3????????Conclusion.

3.1??N/A does not mean “not applicable”.

3.1.1????In practice it means the start of a dispute whereby the contractual risk can be applied to the party that drafted the contract in the first place.

3.1.2????It will take clear and specific wording in the contract to transfer the risk to either the contractor or the subcontractor involved.

3.2??Disclaimer.

3.2.1????There are no recent cases that I can call on to substantiate this opinion of mine.

3.2.2????The earliest case that mentions “not used” is Inglis v Battery 1878 where is decided that the term “not used” meant that the clause was completely obliterated.

3.2.3????My opinion therefore is that if the clause was completely obliterated than the risk should fall on the party that obliterated it.

Contact:

Mike Testro

01986892345

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