Commentary Commentary on sections Section 139 - Requirement for construction contracts to be in writing
314.As originally enacted, section 107 of the 1996 Act provided that Part 2 of the 1996 Act only applied to contracts which were “in writing”. This was interpreted restrictively by the courts such that all of the non-trivial terms of construction contracts had to be “in writing” for Part 2 to apply. Section 139 removes this general requirement, whilst prescribing that various matters must nonetheless be in writing.
315.Subsection (1) repeals section 107 in its entirety with the effect that Part 2 of the 1996 Act will apply to all construction contracts – those which are wholly in writing, partly in writing or wholly oral.
316.Subsection (2) provides that certain provisions of a construction contract, relating to adjudication, must be “in writing”. These are various provisions relating to adjudication.