Waleed Tariq Academy homeNEC Case Law, Clause by Clause · The whole agreement
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NEC Case Law, Clause by Clause · Module 1 · Lesson 4 of 4

The whole agreement

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Why it matters

Does a tender remark count once the old foundations turn up?

CE007 paid GBP 81,200 and 7 days. Was the remark a term too?

21 Nov 2025, what if

At tender, Aldermere Water's engineer says the old foundations are gone.

3 Mar 2026

Merrow Vale finds them in the Station Road culvert trench.

Source: ECC 12.4, 60.1(12).

The rule

The written contract is the whole deal, so a tender promise is not a term

The read such a clause this way in AXA Sun Life (2011).

“The contract is the entire agreement between the Parties” (12.4)

Shut out

Side promises, or collateral warranties.

May survive

An action for , unless clear words exclude it.

Source: ECC 12.4. AXA Sun Life v Campbell Martin (2011).

The rule

A term is implied only when needed, not when fair

Marks and Spencer got no refund of about GBP 200,000 in rent.

  1. 1

    Does an express clause deal with it?

    If yes:
    Apply the clause
    If no, go on to question 2.
  2. 2

    Is it needed for , or obvious?

    If yes:
    A term is implied
    If no, go on to the outcome.
  3. No termFair is not enough

Source: Marks and Spencer v BNP Paribas (2015). ECC 63.6.

See it on the project

The remark is no term, but the contract has a quicker route

CE007 took nine weeks from find to implementation. A action needs a court case.

Station Road, November 2025 to May 2026A what-if remark at tender on 21 November 2025, then the find on 3 March, the notification on 6 March and CE007 implemented on 5 May 2026.NovemberDecemberJanuaryFebruaryMarchAprilMayAldermereWaterMerrowVale1 What if2 Found3 Notified4 CE007 implemented
  1. 121 NovWhat ifAldermere Water What if: at the tender meeting, Aldermere Water's engineer says the old Station Road foundations were removed years ago.
  2. 23 MarFoundMerrow Vale Old concrete foundations found in the culvert trench under Station Road.
  3. 36 MarNotifiedMerrow Vale Notified as a compensation event for physical conditions (60.1(12)).
  4. 45 MayCE007 implementedAldermere Water Dana, the Project Manager, accepts the revised quotation. CE007 is implemented at GBP 81,200 and 7 days.
121 NovAldermere Water

…

Source: ECC 12.4, 60.1(12). AXA Sun Life (2011).

Try it

Decide whether each item is part of the deal, then tap to check

Say yes or no before you tap.

A free compound at Mill Lane, promised at tender?

Not part of the deal. The written contract is the whole deal, so a side promise is shut out (12.4).

What the Site Information says about Station Road?

Part of the deal. The Site Information sits in documents the Contract Data names (11.2(18)).

More money for CE007, beyond the change to the Prices?

Not part of the deal. New Prices and dates are the only rights for a compensation event (63.6).

An order of precedence for the documents?

Not part of the deal. The contract works without one, because 17.1 and 63.10 deal with clashes.

Source: ECC 11.2(18), 12.4, 17.1, 63.6, 63.10. Marks and Spencer (2015).

Quick check · Try it

Two questions on what you have just covered

Pick an answer to see why.

Quick checkPick an answer to see if you are right and why
1Leila, Merrow Vale's commercial manager, argues for an implied term that Aldermere Water had to give access a week before 12 January 2026, because an earlier start was obviously sensible. Is a term implied?
No, the access date deals with it
Yes, an earlier start is fair
Yes, the ECC says nothing about early access
2Merrow Vale says the Prices should rise if fuel costs climb, because that would be fair. Is a term implied?
Yes, because it would be fair to both Parties
No, it is not needed for the contract to work
Only if Dana agrees to the rise

2 questions to answer

Source: ECC 12.4. Aldermere Contract Data part one. Marks and Spencer (2015).

Recap

Write what matters into the contract, and use the clause that covers it

If it is not in the written contract, do not count on it.

On Monday at work

  • Put any tender promise in the Scope or Contract Data (12.4).
  • Find the express clause before arguing for an implied term.
  • On a site surprise, notify the compensation event.

In the Toolkit: NEC4 Compensation Event Register (ECC and ECS) (Excel) Members

Next: the module check

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Independent course material. It is not published or endorsed by NEC, and it is not legal advice. Clause references are to the NEC4 Engineering and Construction Contract, June 2017 with amendments January 2023. Cases decided under an earlier edition are matched to the NEC4 clause that does the same job. The worked examples and their people are invented. Short quotes from NEC4 (© NEC 2017) and the FIDIC Red Book (© FIDIC 2017) are used for review and comment. Read the full clauses in your own copy of the contract.

Source: ECC 12.4, 60.1(12), 63.6.

Go deeper (optional)

Two more points on what the written contract holds

Optional points for later.

Suppose the contract named Merrow Vale's dormant sister company by mistake. Who is the Contractor?

Most likely the company named. In Liberty Mercian the court did not correct the name (Module 12).

Liberty Mercian v Cuddy (2013)

Can NEC's own guidance help a judge read the ECC?

No court has decided. It is not evidence of negotiations, and opinion is split.

Investors Compensation Scheme (1997)

Source: Liberty Mercian v Cuddy (2013). Investors Compensation Scheme (1997). ECC 12.3.