A contract is established and the contracting parties want a third party to take legal action if the undertaking is not met. This person is considered a third party beneficiary. In other words, if a contract results in benefits for the third person, they become a third party beneficiary with the power to enforce the contract. The employer`s lawyers may argue that the contractor participated in the “design phase” of a third-party agreement. Although the contractor may have had some contributions to the attached technical documentation. B a licence to amend, it is rare that he was involved in the negotiation and development of the legal and operational provisions. Just as we should never give advice in isolation without understanding the particularities of a workstation (i.e. where it is, what is built, is it a high risk or a high risk to the mill, etc.) and the impact that these specific factors can have on the completion of work in practice, third-party agreements should not be negotiated and negotiated in isolation. Without consultation with contractors and/or construction professionals, it is little or no way to think about how these agreements are related to the contractor`s obligations under the construction contract and the reality of the practical work. There are potentially many problems that lurk in third-party agreements that can be imposed on contractors.
Some may be obvious, others may be hidden and not immediately obvious. A more effective approach is for the employer to identify the obligations that the contractor actually needs to meet them and pass them on only in the change plan. However, in our experience, it is rare for this exercise to be done – the time, effort and associated costs are repugnant, so the employer is content to pass the entire third-party agreement in the wholesale trade. For the contractor, it is then to detect potential conflicts or additional obligations, such as looking for a needle in a haystack. There are four ways to determine whether the third-party beneficiary`s rights have been transferred: in both cases, a third-party contract differs from the Agency`s by the fact that the undertakings act on its own behalf and for itself, while a representative does not. It also differs from a promise of a continuous carrier, according to which the third party has a negative commitment and first, by its consent, substitutes for a intended party and, therefore, commits itself. In addition, the beneficiary of a third-party contract must not exist at the time the contract is concluded. This means that a contract can benefit an unborn person (usually a family member) or secure benefits for a corporation, for example. B a business, which are still being set up or registered. Does the inclusion of a priority clause (i.e.
the definition of the contract that prevails in the event of a conflict between them) solve the problem? Not necessarily. The contractor could be subject to obligations under a third-party agreement that are not necessarily contrary to the obligations in the construction contract, but are in addition to the obligations set out in the construction contract. For example, a lease may include an obligation to perform the work “to the satisfaction of the lessor.”