Best endeavours' for granting extension of time in construction contract

Abstract

Extension of time is a remedy for contractor due to delay caused by employer or neutral event. One of the normal conditions that a contractor needs to fulfil in an application for the extension of time is that he must have used his best endeavours to reduce or prevent the delay. It is in fact a condition precedent for the granting of extension of time. Best endeavours can be defined as best efforts. This phrase is not a particularly unique and exclusively found in construction contracts. It is also being included in other types of contracts. However, in practice, there is no evidence at all that contract administrator addresses this requirement when considering contractor’s application for extension of time. This is evidenced by the non-availability of Malaysian case law on this issue. In the United Kingdom, there is only one case that is relevant on this point. Therefore this research is carried out to identify the extent of the contractor’s duty to prevent or reduce delay under the best endeavours standard of duty. This is basically a descriptive research and the methodology used is essentially based on case law analysis and review. The cases are retrieved from the Lexis Malaysia online database. Many of them are not construction contract cases but the principles are equally applicable to extension of time. The analysis revealed that, for the purpose of fulfilling the best endeavours requirement, the contractor principally needs to carry out all possible steps to reduce delay and comply with all contract administrator’s instructions relating to it. However, the contractor is not required to incur substantial amount of money for that purpose and need not sacrifice his own interest.