Termination – who serves the notices?

A point that cropped up in one of our recent seminars was to do with the termination provisions under the JCT Standard Building Contract JCT 2011.

The Employer can terminate the Contractor’s employment before practical completion in the event of certain defaults by the Contractor.  These  are set out in clause 8.4 of JCT 2011.  To terminate, the Architect/CA has to give the Contractor notice of the default and if the default is still occurring 14 days after the notice is received by the Contractor, then the Employer can serve notice of termination within 21 days after that.

So, the first notice is served by the Architect/CA and the second notice is served by the Employer.  Can the Employer delegate authority to the Architect/CA to serve the second notice?  In principle, he probably can but he would need to specifically amend clause 8.4 (1) of the contract so that it is clear that this is the Employer’s intention.  I have never seen a contract amended in that way.  And there are dangers for an Employer who is thinking of making such an amendment.  Termination is a nuclear option.  Does an Employer really want someone else to press the button?

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