penalty, the sum of £ for every subsequent week, and so in proportion. for any part of a week until such completion and removal as aforesaid shall have been duly affected, such completion and removal to be certified in writing by the architect.

11. All materials from time to time in or about the premises for use in the said works, except such as the architect may object to as not being in accordance with the specification, shall be the property of the owner, and shall so far as required be used solely for the purposes of the said works, and shall not be removed without the written authority of the architect so long as the works are in progress, but on completion of the works any surplus materials shall be removed by the builder as herein before provided.

Materials to belong to the owner (n).

not to be

assigned.

Power for the of delay or bad to carry out works at the

owner in case

work, &c.,

builder's

expense.

12. The builder shall personally superintend the carrying out of the Contract works, and no part of the work shall be assigned or under-let without the express consent in writing of the owner (o). In case of unnecessary delay by the builder in proceeding with the works, such delay being certified in writing by the architect, and if the owner or the architect shall have given to the builder, or left at his then or last-known place of abode or business, notice in writing to proceed with the works, and the builder shall not so proceed within days after such notice shall have been so given or left, or in case the architect shall have certified in writing that any work or materials are defective, and the builder shall fail to remove any such works or materials within ten days after notice in writing by the owner or architect requiring him so to do shall have been given to him or left at the works or at his last-known place of abode or business, or in case the builder shall assign or sub-let this contract without such consent as aforesaid, then, and in any such case, the owner shall be at liberty without avoiding this contract to take possession of the premises and to retain and use all or any materials and implements thereon, including all scaffolding, plant, and tools, and employ any person or persons to execute the said works, either wholly or partially, without being liable for any loss of materials or injury done to them during

(n) The effect of this clause is to vest the property in the materials when brought on the land in the owner, subject to the condition for the removal of surplus materials on the completion of the works. Hart v. Porthgain Harbour Co., Lim., [1903] 1 Ch. 690; 72 L. J. Ch. 426. The clause having no reference to bankruptcy is valid as against creditors, In re Waugh, 4 Ch. D. 524; 46 L. J. K. B. 26; Ex parte Jay, 14 Ch. D. 19; Keen v. Keen [1902] 1 K. B. 555; 71 L. J. K. B. 487. See further as to the validity of this clause, K. & E. Prec. (10th ed.), vol. 1, p. 8, note (a).

(0) The builder may assign moneys to become payable under the contract subject to the owner's rights. As to the effect of such assignments, see Drew v. Josolyne, 18 Q. B. D. 590; 56 L. J. Q. B. 490.

the execution of the works, and all expenses and damages thereby incurred shall be paid by the builder to the owner upon the architect ascertaining and certifying in writing the amount thereof.

13. The architect's certificate or decision in writing as to any matter in respect of which his certificate is hereby required shall be binding on both parties [except as to the sufficiency of any work or materials as to which no certificate shall relieve the builder from the liability to make good any defective work or material, and] except that the architect may by further certificate correct or modify any previous certificate made by him or any predecessor in office.

Architect's

certificate

to be

binding (p).

conform to

14. The builder shall conform in all respects to the provisions and Builder to regulations of any general or local Act of Parliament, or of any local statutory or local regulaauthority, which may be applicable to the said works, and shall indemnify tions. the owner against all penalties incurred by reason of the non-observance of any such provisions or regulations and against all actions or proceedings in respect of damages caused to a highway in the carrying out of this contract (q).

tion (r).

15. In case any question, dispute, or difference shall arise between the Arbitraowner, or the architect on his behalf, and the builder as to the construction or effect of these presents, or as to any other matter or thing arising hereunder, or as to the rights or liabilities of the respective parties under this agreement (except as to matters hereby left to the sole decision of the architect, and as to which his certificate has not been unreasonably withheld), then every such question, dispute, or difference shall be referred to the arbitration of two persons (one to be appointed by each party to the reference) or their umpire. And this shall be deemed to be a submission to arbitration within the arbitration Act, 1889, or any statutory modification or re-enactment thereof for the time being in force.

IN WITNESS whereof the said parties hereto have hereunto set their respective hands, &c.

(p) As to finality of the architect's certificate, see Robins v. Goddard, [1905] 1 K. B. 294; 74 L. J. K. B. 167; Sharpe v. San Paulo Rail. Co., L. R. 8 Ch. 597; Lawson v. Wallasey Local Board, 52 L. J. Q. B. 302. In the absence of a clause excepting the sufficiency of work or materials (see Ayr Board Trustees v. Adams, 11 Ct. of Sessions Cas. 326) the certificate will bind the employer as well as the builder: Goodyear v. Weymouth (Mayor), 1 H. & R. 67; 35 L. J. C. P. 12; Lapthorne v. St. Aubyn, 1 C. & E. 486.

(q) See Locomotives Act, 1898, s. 12; Epsom U. D. C. v. L. C. C., [1900] 2 Q. B. 751; 69 L. J. Q. B. 933; Egham R. D. C. v. Gordon, [1902] 2 K. B. 120; 71 L. J. K. B. 523.

(r) For other form of arbitration clauses, see ante, p. 367 and post, p. 381.

Form 3.

Agreement to Build a House, &c., where no Architect is Employed (s). AN AGREEMENT made the day of, 19-, between [builder], of, Parties. &c. (hereinafter called "the builder "), of the one part, and [owner], of, &c. (hereinafter called "the owner"), of the other part; WHEREBY IT IS AGREED as follows:

Builder to

erect build

ing to plan.

1. The builder shall forthwith commence, and within the space of calendar months from the date of this agreement, erect, build, and com- ings accordpletely cover in and finish upon the land of the owner, at [aforesaid], a dwelling-house and buildings according to the plans and specifications set forth in the schedule hereto.

2. And all singular the works aforesaid shall be executed, according to With best the said plans and specifications, within the time aforesaid, with the best materials, &c. materials (t), and in a good, workman-like, and substantial manner, to the satisfaction of the owner in every respect.

3. The builder shall within days after the completion of the works, remove all his scaffolding, fencing, implements, materials, and rubbish, and leave the works in a clean and proper condition.

Clearance after completion.

4. If the works shall not be completed, or if the said scaffolding, imple- Penalties for delay. ments, and plant shall not be removed within the times herein before respectively mentioned, then, and in either such case, for every subsequent working-day until the completion of the works or the removal of the said scaffolding, implements, and materials, as the case may be, the builder shall pay to the owner £ as liquidated damages: and it shall be lawful for the owner to deduct any sum which may become payable to him, under or by virtue of this clause, from the money which shall be due to the builder under this agreement.

not to be assigned.

5. The builder shall personally superintend the execution of the works Contract and shall not assign [or sub-let] this contract or any part thereof without the consent and approval in writing of the owner.

In case of de

fault, owner may complete

6. If the builder should from any cause whatsoever fail to complete the said dwelling-house, buildings, and works in manner or within the time aforesaid, and the owner should give or leave notice in writing of such and deduct default at the last known place of abode of him (the builder), and the builder should not proceed to complete the said buildings and works, within the space

(s) Stamp, 6d., if under hand only.

(t) See note (e), p. 371.

cost.