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Bick, P (1997) Statutory reform of aspects of construction law in Australia. Construction Management and Economics, 15(06), 549-58.

Brooker, P and Lavers, A (1997) Perceptions of alternative dispute resolution as constraints upon its use in the UK construction industry. Construction Management and Economics, 15(06), 519-26.

Chan, E H W (1997) Amicable dispute resolution in the People's Republic of China and its implications for foreign-related construction disputes. Construction Management and Economics, 15(06), 539-48.

Fenn, P, Lowe, D and Speck, C (1997) Conflict and dispute in construction. Construction Management and Economics, 15(06), 513-8.

Kennedy, P, Morrison, A and Milne, D O (1997) Resolution of disputes arising from set-off clauses between main contractors and sub-contractors. Construction Management and Economics, 15(06), 527-37.

  • Type: Journal Article
  • Keywords: adjudication; conflict; counterclaim; dispute; set-off; sub-contracting
  • ISBN/ISSN: 0144-6193
  • URL: https://doi.org/10.1080/014461997372737
  • Abstract:

    Set-off relates to the situation where a main contractor raises a counterclaim against a sub-contractor’s claim or where an employer raises a counterclaim against the main contractor. The alternative terms cross claim, counterclaim, contra charge, compensation and retention are explained in the context of Scots law. Set-off in the construction industry in Scotland is then discussed within the contractual frameworks upon which main contractors are entitled to exercise such rights and how these conditions of contract have been formed over recent years. A study reported shows the extent of the use of amended and unamended forms of sub-contract and main contractors’ own forms of sub-contract which imposed more onerous set-off conditions than the standard forms, the reasons given by main contractors for exercising their rights of set-off, the level of satisfaction amongst sub-contractors with the sums set-off against them, the means by which main contractors and sub-contractors settled disputed set-offs, and sub-contractors’ reasons for accepting unsatisfactory instances of set-off. The research was undertaken using a questionnaire to a stratified sample of sub-contractors throughout central Scotland in 1995. Forty-seven sub-contractors responded to the questionnaire and 427 instances of set-off were recorded. The study indicated that, despite the considerable protection given to sub-contractors in the standard forms of sub-contract and in common law, they were prepared to settle set-offs with which they were dissatisfied without initiating contractual proceedings which would have improved their situation. It would appear from this study that sub-contractors are reluctant to use their contractual entitlements either because of fears over the costs of disputing set-offs or because they fear that they will be denied opportunities to tender for work in the future. Until there is a culture shift in the industry, reliance on contractual conditions alone may be inadequate to meet the needs of sub-contractors.

Stipanowich, T J (1997) At the cutting edge: conflict avoidance and resolution in the US construction industry. Construction Management and Economics, 15(06), 505-12.