From: Andrew Tettenborn <>
To: Jason W Neyers <>
obligations <>
Date: 20/01/2023 18:41:08 UTC
Subject: Re: ODG: Concurrent Delay, Causation in Contract Law, and Contributory Negligence

Won't this very often come down to damages? You fail to complete construction work on my condo building, but I drag my feet on getting approval from the municipality. If I sue you for damages at large, surely you're entitled to say, No loss.

Mind you, a nice issue would be whether I could enforce a $5000 a day liquidated damages clause in respect of a period when I couldn't have used the building anyway. I incline to the view that I probably could, but if addressed by able counsel a court might be prepared to do a bit of nifty footwork on interpretation.


On 20/01/2023 18:19, Jason W Neyers wrote:

Dear Colleagues:


I have a graduate student who is interested in the problem of concurrent delay in construction contracts. Concurrent delay occurs when there are two or more independent events of delay during the same time period on a construction schedule and each event affects the completion date of the construction project. The complexity arises where each event of delay is caused by a different party to the construction contract – the contractor and the employer. In such cases, the employer may sue the contractor for damages due to delayed performance of the contract, and the contractor may raise as a defense that the employer also contributed to the delay.


Assuming the losses are not too remote (on the Hadley v Baxndale standard), this seems to raise some very interesting issues surrounding causation in the law of contract and perhaps arguments surrounding something like contributory negligence. If any knows of any interesting discussions of concurrent delay, causation in contract or contributory negligence (or anything which you think related) I would be very much interested in knowing of them. For example, is there any reason to think that the test for causation is or should be different for a breach of contracts case than it is in the law of torts? Similarly, if substitutive damages as well as consequential damages are available for breach of contract does concurrent delay affect their assessment?


Self promotion is encouraged!




Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
t. 519.661.2111 (x88435)


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Andrew Tettenborn
Professor of Commercial Law, Swansea University

Institute for International Shipping and Trade Law
School of Law, University of Swansea
Richard Price Building
Singleton Park
Phone 01792-602724 / (int) +44-1792-602724
Fax 01792-295855 / (int) +44-1792-295855

Andrew Tettenborn
Athro yn y Gyfraith Fasnachol, Prifysgol Abertawe

Sefydliad y Gyfraith Llongau a Masnach Ryngwladol
Ysgol y Gyfraith, Prifysgol Abertawe
Adeilad Richard Price
Parc Singleton
Ffôn 01792-602724 / (rhyngwladol) +44-1792-602724
Ffacs 01792-295855 / (rhyngwladol) +44-1792-295855


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