Thursday, 21 February 2008

Contract law for archaeologists

I am not a lawyer.

I am not a lawyer, but.

I am not a lawyer, but I have spent many unhappy hours drafting, negotiating and finalising contracts, and dealing with the fallout when disputes arise.

And that is the point, of course: with a healthy relationship between the parties, the contract can be signed and forgotten about. There is a temptation for people who have had problematic projects in the past to add on clauses to attempt to pre-empt issues. But there is no correlation (in my experience) between the length and complexity of the contract, the scale and nature of the project, and the eventual satifactoriness of the outcome: small simple projects with long contracts have ended in interminable correspondence and court actions, while big complex projects agreed by exchange of letters have turned out fine.

At one stage the IFA issued a model contract for archaeological work but it proved hard to implement in practice, because developers would shrink at a 30 page document of dense and complex provisions which they couldn't understand, let alone agree, which (it turned out) contained some decidedly unusual arrangements for stewardship of the finds (ownership was handed to the excavators). This model contract is no longer publicised.

It is much better for a contract to reflect the desired substance of the agreement sought. It need not be written in complex language (in fact it need not be written at all, although as Sam Goldwyn said, a verbal [meaning oral] contract isn't worth the paper it's written on). It is worth emphasising that contracts are supposed to be a tool to provide clarity and certainty, and should be drafted with that in mind.

What is a contract?

A contract is an agreement which can be enforced by the courts. Most contract law practice in the UK is covered by common law rather than statute.

There are three necessary elements to a contract:

offer and acceptance (some evidence that the parties have agreed)

consideration (the goods or services and payments to be exchanged (in UK common law a contract must involve an exchange not just a transfer from one party to the other))

an intention to create legal relations (some evidence that the parties wanted to be bound by the contract)

If one of the parties breaches the contract by failing to perform their duties, teh courts can require them to do so. Until recently it was arguable whether any interested parties who were not signatories to the contract could enforce its provisions, but they now can unless the contract explicitly prevents them (Contracts (Rights of Third Parties) Act 1999.

Whose contract?

The choice of contract has to be agreed. This can lead to long arguments if both parties have standard contracts they use; eventually somebody has to give in. Some terms (covering copyright, for example) may not be negotiable and the signatory wil have to decide whether to enter into an agreement which does not reflect their preferred arrangements.

If there is no contract, or no agreeable contract, a simple one can be devised. The disadvantage of this is that the wording may be loose and open to interpretation and some important issues may not be covered. On the other hand, interpretation will be based on what a 'reasonable man [sic]' would have understood by the terms.

Key requirements to a new contract are:

Defining the parties

Particular care is needed when delaing with agents and shell companies: in general the landowner should be the signatory.


Define the tasks , goods and services to be supplied.

Obligations of supplier

State the delivery and acceptance arrangements and any quality thresholds.


The programme should be described. This should be broad enough to allow the agreement to cover works even if delayed for some time; otherwise the terms of the contact may not cover them.


The payment arrangements, and any stage payments and invoice payment period should be stated (rather than included as a unilateral statement on an invoice form). VAT should be explicitly covered.

Terms and conditions

If you have standard terms, they can be written into the contract to form part of it. If both parties do this, it will be necessary to check carefully to see whether there are any provisions in conflict. Note that the Unfair Contract Terms Act 1977 provides some protection for a party who accepts the other's standard terms.


Somebody sufficiently senior to commit the orginsiation should sign; care is needed with parties who are not landowners. There is no need to sign at the same time. Two copies should be signed, one retained by each party.


Any documentation cited in the contract should be appended as a schedule: this eliminates any doubt about versions.

Contracts and business relationships

Having a clear contract can be seen as a form of deterrence: it shouldn't be needed because it's there. It may take some time to finalise a contract, but you should NEVER start work without some form of instruction to proceed. Archaeologists are helpful people and will want to get on with the work, especially if they have made arrangements for plant and staffing for a particular date. But if you start before the client says so, you are labelling yourself as a naif who can be exploited at will.

Similarly if the client disputes an invoice you must be prepared to suspend work until it is resolved, even if this causes you considerable inconvenience.

On a positive note, you should remember that the primary duty of care your organisation owes is to your client, who should be the first, not the last, to hear of your results (even if, according to the IFA Code of Approved Practice for the Regulation of Contractual Arrangements, your personal primary duty is to the archaeological resource).

This is for general information purposes and is not intended to constitute legal or other professional advice. You should seek specific legal advice in relation to any particular matter.

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