冰川隧道:Time?at?Large的概念和适用

Time at Large的概念和适用

在最近的一个案例中，很多朋友对我的这个案例中的叙述有些疑惑，也许认为我没有说到点子上，但是主要原因我想是因为大家对Time at Large这个索赔概念的不了解，现就Time at Large这个概念和应用我做一下详细的解释。(在今后的一些案例的讨论中我会尽量使用英文。)

It is well settled that in contracts when there is a stipulation for work to be done in a limited time & if one party by his conduct renders it impossible or impracticable for the other party to do his work within the stipulated time, then the one whose conduct caused the trouble can no longer insist upon strict adherence to the time stated. He cannot claim any penalties or liquidated damages for non-completion in that time. This is said to be based on the fundamental principal that a party cannot benefit from its own breach to the detriment of the injured party. It is often referred to as the “Prevention Principle”.

 Modern extensions of time clauses are widely drafted to get round the Prevention Principle as they attempt to cover all possible omissions or acts or defaults by the Employer which would prevent the Contractor’s completion on time. They provide a remedy for the Employer’s prevention and establish a new date from which the liquidated damages can be measured. The extensions of time clauses are for the benefit of the Employer. They keep alive the Contractors obligation to complete by a specified date and preserve the Employers right to deduct liquidated damages for breach of that obligation.

One consequence of the prevention principle is that the Employer cannot hold the Contractor to a specified completion date, if the Employer has by act or omission prevented the Contractor from completing by that date. Instead, time becomes at large and the obligation to complete by the specified date is replaced by an implied obligation to complete within a reasonable time. Furthermore, if the extension of time clause does not entitle the Contractor to have the time for completion extended for delays actually caused by such acts of prevention, then the Contractor will no longer be under an obligation to complete within the specified period. His obligation is instead only to complete within a reasonable period. Time is said to be at large.

What constitutes a reasonable time is a question of fact. What constitutes a reasonable time has to be considered in relation to circumstances which existed at the time when the contract obligations are performed, but excluding circumstances which were under the control of the Contractor. If the contract provides for the deduction of liquidated damages should the Contractor overrun the time for completion, then the provision will no longer be enforceable when time is at large. There is no specific certain date from which liquidated damages can run. The Employer will then only be entitled to damages that he can prove in the normal way, if he can establish that the Contractor has not completed within a reasonable time. The subject is
extremely complex, especially where the Engineer awards extensions of time after completion of the works， but it is still a question of interpretation whether the Engineer is entitled to do so. Usually we assume that the liquidated damages shall not be applicable when the situation of time at large happens.

If the entitlement to extension of time is on the basis of what is fair and reasonable, then this must include consideration of the positive steps taken by the Contractor to reduce the consequences of the delay, and the steps which could have been taken, without the expenditure of substantial sums. An express obligation to proceed regularly and diligently will include applying resources in such a way as to reduce the consequences of a delay, so that work is carried out efficiently. It is an accepted principle that the reasonable steps to be taken by the Contractor when faced with such a delay is to provide the appropriate notices required by the contract, plus taking reasonable steps to mitigate the effects of the delay and succeed in reducing the effect of the delay. However, the rules of mitigation do not generally apply to contracts in relation to time where there are extensions of time provisions. Even in such cases, the Contractor will have some obligation to progress the works which will involve an aspect of management of resources and planning of activities in the circumstances of actual events.