Self-help remedies in the context of construction law in a comparative perspective

[摘要] ENGLISH ABSTRACT : This thesis examines the recognition of and resort to practical self-help remedies toensure compliance with a construction contract by the parties - this is a consistentfeature of construction law, seen regularly in building and engineering contractsacross jurisdictions.Accordingly, the thesis investigates the treatment of self-help remedies across threelegal regimes. First under South African law, as a mixed legal system (comprisingelements of both civil and English law), secondly under the law of the United ArabEmirates, which is a civil law jurisdiction but strongly influenced by the principles ofIslamic Sharia law and, as a third point of evaluation, corresponding provisions of astandardised construction contract drawn from the FIDIC suite of contracts (a suiteof contracts which is commonly used in the construction industry).As a point of departure, the availability of the remedy of specific performance underSouth African law and the law of the United Arab Emirates is examined. A furtherinvestigation is undertaken to establish whether, the courts in such systemsrecognise specific performance and secondly whether a willingness exists to awardspecific performance in the context of construction contracts. The thesis then movesto propose that self-help remedies can serve as substitutes for court awardedspecific performance, but it is important that these remedies are effectivelyregulated to achieve a proper balance between the interests of the parties andunderlying considerations of principle and policy.An enquiry is then conducted into the regulation and treatment of three popular selfhelp remedies in construction contracts namely: suspension as a self-help remedyavailable to both an employer and a contractor, liens as a self-help remedy availableto a contractor and, liquidated damages as a self-help remedy available to anemployer.The thesis then concludes that, especially in jurisdictions where there is judicialreluctance to award specific performance, effectually regulated self-help remedies,are justifiable and effective motivators to encourage specific performance by adefaulting party.

[发布机构] Stellenbosch University