DOCUMENTS MUTUALLY EXPLANATORY
5. The several documents forming the Contract are to be taken as mutually explanatory of one another and in case of ambiguities or discrepancies the same shall be explained and adjusted by the Engineer1 who shall thereupon issue to the Contractor appropriate instructions in writing2 which shall be regarded as instructions issued in accordance with Clause 13.
1. “AMBIGUITIES OR DISCREPANCIES…SHALL BE…ADJUSTED BY THE ENGINEER”. It follows from the principles of interpretation applied by the courts (pp. 5–6) that the engineer may only certify expenses under this clause if there is genuinely an ambiguity or discrepancy in the contract; if the contract documents are clear they must generally be applied even if they produce a result which the parties obviously did not intend. The only exceptions are:
a) Where the parties agree verbally on the terms to be set down in a written contract but a mistake is made and the writing does not set out their agreement accurately, the courts will correct the contract provided the prior agreement and the mistake are proved clearly:
A contracted with B to remove rubble. There was a term in the written contract eventually signed for a payment, but the clause was ambiguous as to whether the payment was to be made by or to A.
It was proved that the parties had, in fact, agreed that the terms of the contract should be that A would make the payment, and the written contract was rectified to make this clear. u
The cases in which the courts will grant rectification are limited by this necessity of proving prior agreement by the parties on the particular point; most of the disputes about interpretation are on points which were never thought about by the parties or the draftsman when the contract was being made.
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