국제건설계약에서 완공의 지연 - 방해이론(Prevention Principle)과 Time-Bar 조항 -

This article addresses the issue of whether liquidated damages for delayed performance can be enforced against a contractor for periods of delay caused by the owner, and for which the contractor cannot obtain extensions of time due to the operation of time bar provisions in the extension time clause. The former is in regard to the so called “prevention principle,” and the latter is an effect of time‐bar clause. This issue has been the subject of considerable judicial and other comments in the United Kingdom and Australia. With respect to the prevention principle, an owner will lose the right to claim liquidated damages if some of the delay is due to its own, employees’ or agents’ defaults, unless (i) the extension of time clause, strictly construed, allows for extensions to be granted for delays caused by acts or defaults of the owner; and (ii) an extension has been validly granted thereunder. This will be the case even if the owner’s delays form only part of the total delay. The court will not seek to apportion delay, at least when considering enforceability of the liquidated damages clause. If the liquidated damages clause is held inoperative because of the application of this principle, the owner will still be entitled to sue the contractor for any general law damages that it can prove flow from the contractor’s default. While it is easy to state the prevention principle in general terms, it is more difficult to identify just what “acts or omissions” of the owner will bring that principle into operation. The broadest view – namely, that any act, regardless of its fault element, will be sufficient to enliven the prevention principle – is well supported by the relevant authority. Notice provisions are common in construction contracts. A question in relation to a clause requiring notification within a specified time of claims for extension of time is whether compliance with the notice is a condition precedent to the entitlement to an extension of time. Another question is whether time‐bar clauses are effective as a complete defense to contractors’ claims that are not submitted in accordance with the express notice provisions. This article further considers the legal tools used to undermine such clauses and focuses on the jurisprudential conflict between such clauses and the prevention principle. It concludes that the real issue is not the tension between the time bar clause and the prevention principle, but one between the time bar clause and the “freedom of contract” doctrine. This is because an analysis of the case law tends to support the view, both, that the prevention principle is not a rule of law, but a rule of construction.