......(3) My third question relates to building construction. As the members are no doubt well aware, contractors are very fond of claiming for "variations". To put it simply, the contractors argue that certain works are outside the scope of the contract and therefore the contract has been "varied". Usually, the whole litigation turns on whether the work is outside the scope or not.

However, I have often wondered what is the basis of the claim. If the contract envisages a rate in which the variation is to be paid, I have no problems analysing it as purely a contractual claim. However, where the contract is silent on variations what exactly is the nature of the claim?

The first possibility is of course contract. However, the problem with the contract analysis is finding the traditional elements of contract. Very often there are fierce letters shooting to and fro the parties stating "it is part of the contract - you have to do it" and "it is not part of the contract - if I do it I will charge you". In circumstances like these, I find it very hard to justify the same as a contract. ....

the bluster doesn't conceal that neither party is fully rejecting the other's position? isn't there mutual intent that the work be performed and if not covered by contract paid for at reasonable value?

.... Finally, most importantly does it matter to a litigant whether it is analysed as contract or restitution - is there any advantage to argue that it is one and not the other? ...

suppose the disputed work is not completed and then found to be a 'variation' ?