1. CONTRACTOR TO CARRY OUT THE CONTRACT WORKS “SAVE IN SO FAR AS …LEGALLY OR PHYSICALLY IMPOSSIBLE". That is, the contractor may fail to carry out work specified in the contract if it is legally or physically impossible, without being liable to pay damages for breach of contract. h′

There is some confusion abroad about this clause. If the contractor does work described in the bill he is normally entitled to payment even though the work does not achieve the result intended, e.g. if he welds but the specified material is such that the weld is liable to break (p. 55). But if the contractor cannot carry out the work described at all, e.g. a weld will not take, the employer is not liable to pay the contractor for trying to do so, unless the contractor has a cl. 12 claim. The general principle which applies is that the employer does not guarantee that the works can be completed in accordance with the contract (p. 28).

The result is that the contractor should avoid fruitless efforts to do work which is impossible, and instead require a properly ordered variation to avoid the impossibility.

There is also, of course, a difference between work which is impossible and work which is more difficult or requires more plant or temporary works than the contractor anticipated—as to which see cl. 12.

For impossibility due to events occurring after the contract is made see cl. 64.

2. “IN STRICT ACCORDANCE WITH THE CONTRACT TO THE SATISFACTION OF THE ENGINEER”. The engineer has no power to alter the contract—see cl. 39, N. 2, p. 127, pp. 157–8, and the next note. For expedition of completion ordered by the engineer see p. 371.

3. “AND SHALL COMPLY…WITH THE ENGINEER’S INSTRUCTIONS…ON NY MATTER CONNECTED THEREWITH (WHETHER MENTIONED IN THE CONTRACT OR NOT)”, but not any instruction positively contrary to the contract, see the references in the previous note. For the engineer’s control over the contractor’s method of working and temporary works see also cl. 14. For written instructions necessary and extra payment in some cases see ch. 11. “connected therewith” is new. “therewith” appears to refer to “the Works”, and not “the Contract”.

4. LIABILITY OF THE ENGINEER FOR INJURY DUE TO INSTRUCTIONS. See pp. 53–4.

5. “MODE MANNER AND SPEED OF CONSTRUCTION AND MAINTENANCE OF THE WORKS APPROVED OF BY THE ENGINEER”. For temporary works see p.29, and for maintenance work p. 165, N. 11. For the advantages of controlling the contractor’s work under this sub-clause instead of sub-cl. (3) of this clause or cl. 14 see the next note and p. 83, N. 21.