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ROLE OF AN ARCHITECT:

An architect plays an important role in execution of a building contract.
In Hudson's Building and Engineering Contracts at page 243, it is stated:
"An architect is a person who professes skill in the art of designing buildings to meet his client's need, in the organization of the contractual arrangements for their construction, and in the supervision of work and contractual administration until final completion. So a major part of an architect's activities will be concerned with the preparation of contracts, the obtaining and recommending for acceptance of estimates from builders, the selection of specialist contractors, the inspection of work carried out, the solution of difficulties encountered during the course of erecting the building, condemning and dealing with defective work, the issue of certificates under the terms of the contract and advising or ruling on disputes between the owner and the contractor. Thus it will be seen that although it is the primary and vital function of the architect to create new ideas of amenity and design and to set down those ideas on a drawing-board, his duties extend far into other fields of technical knowledge and business management. On the other hand, while he will remain primarily responsible to the owner for all matters of design, modern techniques of construction and specialized building products and processes in fact demand expertise and skill for which he will inevitably not always be personally qualified. The employment of outside consultants or the less satisfactory (from the legal point of view if the employer's interest is to be properly protected) device of delegating important design functions to specialist and sub-contractors and suppliers, are therefore a frequent and inevitable accompaniment of many major building projects but, as will be seen, the architect is the "captain of the ship" and will be the person to whom the owner will normally look if a design failure occurs, though in some, but not all, cases he will adequately discharge his own overall responsibility if he exercises due professional care in referring matters outside his own expertise to a consultant or specialist supplier or contractor, particularly if these latter are engaged on behalf of the owner and not by the architect himself."

In a given case having regard to the reasonableness of the estimated amount a contractor may pay the same or challenge the same either by an arbitrator or by a court of law. A dispute may fall for adjudication by an arbitrator or by a court of law only in the event a contractor refuses to accept such estimate.

In G.T. Gajria's Law Relating to Building and Engineering Contracts in India, Fourth Edition at page 563, it is stated:

"In a contract, where there is certificate clause which is a condition precedent to payment and an arbitration clause of some third person other than the architect, the builder cannot recover without the certificate, and neither the arbitrator nor the court (apart always from some misconduct of the architect), has jurisdiction to consider any matters. In respect of which the certificate of the architect by the terms of the contract is made a condition precedent."

It is well-settled that a builder renouncing his obligations could not claim substantial performance.

In Hudson's Building and Engineering Contracts at page 484, the law is stated as:

"A further overriding principle to be deduced from the cases, it is submitted, is that a party consciously in breach, a fortiori a party repudiating an obligation or abandoning work, should not be enabled to abuse the doctrine by maintaining that position while at the same time suing for remuneration under the contract. Thus in South Africa, there is long-standing authority that substantial performance is not available where work is abandoned, or the method of performance is inconsistent with an honest intention to carry out the work in accordance with the contract. Sumpter v. Hedges and Ibmac v. Marshall were clear cases of abandonment."

Reference may also be made to illustrations given in Hudson's Building and Engineering Contracts at pages 1038-39.

In Emden and Gill's Buildings Contracts and Practice, Seventh Edition, at page 267, the law is stated thus :

"The measure of damages for failure by the contractor to complete a building or engineering contract will include first, the difference (if any)between the price of the work as agreed upon in the contract and the cost the employer is actually put to in its completion (i), and cost of completion means cost of the completion of the contract work itself.