Discuss about the Legal and contractual issues resulting from the novation agreement: Contractor Risks in Design, Novate and Construct Contracts.
The major research problem is to analyze the case focused on the likely legal and the contractual issues being raised on the facts given taking place from the novation agreements. Another issue has also been observed regarding the fact whether the design flaws can be addressed in a legal manner and can be used in rectifying the resulting structural defects in a better manner or not. Certain other research problem that has been observed in case of novation agreements is majorly focused on professionalism, maturity along with competence of three major participating interests that includes contractor, consumer and the design team. The vital risk that is faced in the novation agreement is that the agreement between the members might fail because of their incompatibility. As the novation agreements can be highly complex it is deemed vital for the design contracts to be carefully novated to the contractor for avoiding likely disputes or conflicts in the agreement.
The aim of the research is to analyze the legal and the contractual issues that take place from the novation agreement within the process of procurement. The objectives set in this research to be addressed are explained under:
The first chapter of the current research is focused on is to select the title for this study. The second chapter will offer an introduction for the research problem identified regarding the novation agreements for the contractors. The third chapter of this research will explain the aim and the objectives set for accomplishing this research successfully and attaining desired research results. The fourth chapter will explain the ways in which the research will be completed. The fifth chapter will explain the literature review on the current research subject for analyzing the research gap that will be addressed in this study on novation contracts. The sixth chapter will elaborate the research methodology that will be employed in attaining desired implications and outcomes in addressing the identified research problem.
According to novation contract is deemed to be a common practice that over the duration of any project and the need for the benefit takes place regarding the contracts. Novation also includes certain agreements that are entered into among the parties to be transferred by the third parties that had less connection with agreement or the original contract. These researchers also revealed certain legal issues taking place from the notation agreements along with the novation of the construction contracts. In contrast, stated that focused on the novation agreement, in the construction industry certain interest might be transferred. These researchers recognized the advantage of the construction contract that might be either the contractor rights to be paid or employer’s right to have project constructed. It was also evidenced that such transfer might not put such originality party to contract within a substantial position than he was before the transfer.
indicated that there is an exception to the novation rules that an assignment might not be effected in situation where agreement between the parties restricts it. In such situation both the contractor parties within this agreement of novation intends to assign the advantage of the construction agreement even though the construction document restricts such assignment. added that most of the construction documents are commercial agreements that include the obligations which are personal in nature. It is also observed that the court is in favor of such approach. Certain other research problem that has been observed in case of novation agreements is majorly focused on professionalism, maturity along with competence of three major participating interests that includes contractor, consumer and the design team. also revealed the vital risk that is faced in the novation agreement is that the agreement between the members might fail because of their incompatibility. As the novation agreements can be highly complex it is deemed vital for the design contracts to be carefully novated to the contractor for avoiding likely disputes or conflicts in the agreement.
has recognized several risks faced by the contractors in the novation agreement process of manufacturing. Such risks include novated design’s team capability to perform, lack of the design’s team fees allocated within the post-novation phase, working relationships among the novated design team and novation timing. These researchers also presented a view that the most considerable risks that is observed for the contractors surround the capability of the novated team design in performing in a better manner. stated that the right for agreement to the parties is prohibited within the novation agreement, any assignment impacted in contravention of this provision might be void. It is vital to note that for this restriction to exist, the wording of the contract might be clear and unambiguous as to the parties’ intention.
indicated that another limitation relied on the nature of the novation agreement right serves as bare right of litigation. In such them of agreement that takes place within construction places, an assessment of “bare” right to attain legal proceedings is void. These researchers also indicated that a right is deemed to be bare right of litigation at the time it is unattached to the lawful property transfer or relied on certain verifiable authentic commercial interest. evidenced that a novation takes place within the contraction agreements through taking effect from the extinguishing single contract and through replacing the same with another. The court has also identified the possibility of partially novating obligations and however, the novating party stays accountable for the remaining obligations. elaborated that certain limitations are also faced in the novation agreements by the contractors and a contract might contain contractual limit on novation. This is not common as novation requires consent from both the parties. In practice a construction document focused on commercial property development will not have any novation clause till the parties realize that novation is needed management.
Quantitative research approach will be selected in carrying out research on “Legal and contractual issues resulting from the novation agreement” as this is deemed to be highly useful in extracting relevant data from the secondary sources. This research approach is considered being most suitable in this particular research for the reason that it can collect relevant quantitative data from the primary research or questionnaire survey process from the target participants. In such consideration, the contractors those are involved within the construction process and carry out novation agreements within Hong King will selected for this research. Both the primary and the secondary data sources will be used in gathering important data on the novation agreement. Quantitative research approach is gathered to be highly significant in offering important data on the human inclination subject which requires larger sample size in order to conduct data analysis and for collecting suitable research results. Questionnaire will be used in collecting suitable data on the novation agreements use and issues faced by the contractors. Secondary data sources that will be used in this research includes the peer reviewed articles, journals, books as well as authentic government websites of Hong Kong presenting amendments of novation agreements used in construction industry management.
Population: Primary data collection through questionnaire will be carried out with the target respondents. These respondents will be 31 contractors involved in novation agreements within Hong Kong. This target respondents group is selected for the reason that they can offer most authentic data on contractor risks within novation agreement and the significant use of such novation contracts.
Sampling: The process of simple random sampling is employed in gathering suitable research sample for this research. This sampling process is selected for the reason that it will have the equal chance for the target respondents to get selected in the questionnaire survey.
Variables: The research variables that are used in this research include both the dependent and independent variables. Contractor risks in novation procurement will be the independent variable and the novation agreement use by contractors will be the dependent variable. Data gathered s well as the relationship between the dependent and independent variables will be analyzed through carrying out correlation and regression analysis. Suitable statistical tool will be employed in carrying out data analysis that is MS Excel and such analyzed data will be represented through tables and graphs for easy understanding.
References
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DEACONU-DASC?LU, Diana. “Aspects regarding the Assignment of Lease Contracts.” Acta Universitatis George Bacovia (Juridica) 4.1 (2015).
Flick, Uwe. Introducing research methodology: A beginner’s guide to doing a research project. Sage, 2015.
Ilyinskaya, Olga I. “NOVATION OF TREATIES.” Kutafin University Law Review 1 (2017): 157-166.
Lewis, Sarah. “Qualitative inquiry and research design: Choosing among five approaches.” Health promotion practice16.4 (2015): 473-475.
Lewis, Sarah. “Qualitative inquiry and research design: Choosing among five approaches.” Health promotion practice16.4 (2015): 473-475.
Mackey, Alison, and Susan M. Gass. Second language research: Methodology and design. Routledge, 2015.
Marinescu, Ioan Lucian. “STUDY ON THE OBJECTIVE NOVATION OF AN OBLIGATION.” Challenges of the Knowledge Society (2017): 247-253.
Roberts III, William A., and Kay Tatum. “The Novation of Government Contracts and the Unreliable and Unpredictable Operation of Law Exception.” Procurement Law. 50 (2014): 1.
Rosly, Saiful Azhar, Muhammad Arzim Naim, and Ahcene Lahsasna. “Measuring Shariah non-compliance risk (SNCR): claw-out effect of al-bai-bithaman ajil in default.” Journal of Islamic Accounting and Business Research 8.3 (2017): 272-283.
Sheridan, Peter, and S. Gold. “Adjudicators using their own experience, expertise or argument.“.” Construction Law Journal 30.6 (2014): 304-323.
ter Haar, Roger, Anna Laney, and Marshall Levine. “Introduction to UK construction industry.” Construction Insurance and UK Construction Contracts. Informa Law from Routledge, 2016. 55-63.
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