Browsing by Author "Newdigate, Nicole Ingrid"

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    Self-help remedies in the context of construction law in a comparative perspective
    (Stellenbosch : Stellenbosch University, 2019-04) Newdigate, Nicole Ingrid; Lubbe, G. F.; Stellenbosch University. Faculty of Law. Dept. of Private Law.
    ENGLISH ABSTRACT : This thesis examines the recognition of and resort to practical self-help remedies to ensure compliance with a construction contract by the parties - this is a consistent feature of construction law, seen regularly in building and engineering contracts across jurisdictions. Accordingly, the thesis investigates the treatment of self-help remedies across three legal regimes. First under South African law, as a mixed legal system (comprising elements of both civil and English law), secondly under the law of the United Arab Emirates, which is a civil law jurisdiction but strongly influenced by the principles of Islamic Sharia law and, as a third point of evaluation, corresponding provisions of a standardised construction contract drawn from the FIDIC suite of contracts (a suite of contracts which is commonly used in the construction industry). As a point of departure, the availability of the remedy of specific performance under South African law and the law of the United Arab Emirates is examined. A further investigation is undertaken to establish whether, the courts in such systems recognise specific performance and secondly whether a willingness exists to award specific performance in the context of construction contracts. The thesis then moves to propose that self-help remedies can serve as substitutes for court awarded specific performance, but it is important that these remedies are effectively regulated to achieve a proper balance between the interests of the parties and underlying 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 remedy available to both an employer and a contractor, liens as a self-help remedy available to a contractor and, liquidated damages as a self-help remedy available to an employer. The thesis then concludes that, especially in jurisdictions where there is judicial reluctance to award specific performance, effectually regulated self-help remedies, are justifiable and effective motivators to encourage specific performance by a defaulting party.