164 THE LAW AFFECTING ENGINEEES 



contract value of such portion of the works as cannot, in 

 consequence of delay, be used beneficially. The amount there 

 recommended is five shillings per .100 per week for the first 

 four weeks, ten shillings per 100 during the second four 

 weeks, and so on. 



It is also desirable to provide that penalties may be 

 retained or deducted out of the amounts payable under the 

 contract. In some cases a special clause may be inserted 

 providing that if the works shall be damaged, burnt down, or 

 destroyed by fire, storm or tempest, before completion the 

 contractor shall be relieved from penalties. In a contract for 

 large works, where there are a number of contractors and sub- 

 contractors employed, it may well be that delay on the part 

 of a particular contractor is due to causes over which he has 

 no control, or for which he is only partly responsible. To 

 meet such a case it may be provided that the engineer shall 

 have power at any time, at the request of the contractor or 

 the employer, in the event of any delay taking place for which 

 the contractor alleges he is not responsible, to apportion the 

 delays due to the contractor. Such a proviso may be intro- 

 duced to modify the rigour of the usual penalty clause. 



Penalty clauses are sometimes inserted to prevent a con- 

 tractor paying commissions to any persons acting on behalf 

 of the employer. 



7. Severity of the penalty clause. Before dealing with the 

 question of extending the time in such a way as to relieve the 

 contractor from penalties, it may be well to consider one or 

 two cases in which penalties have been held to be recoverable. 

 Thus, in some circumstances, penalties may be exacted 

 although the delay is caused by alterations required by the 

 employer. In the case of Jones v. St. John's College, Oxford 

 (1871, L. K. 6 Q. B. 115), it was agreed by a building contract 

 that the plaintiff should before a certain date completely finish, 

 according to certain specifications, a farmhouse and buildings, 

 but subject to extras, alterations, or additions which might be 

 made as mentioned in the agreement. It was also stipulated 

 that the time mentioned in the agreements should be of the 

 essence of the contract, so that, if the work was not done by 

 the day named, penalties might be deducted by the defendants 

 from the amount owing from them to the plaintiff. Alterations 

 were ordered, and the plaintiff failed to carry out the works 



