国际工程合同条款应用实例－02（非发行项目）

5305799 发表于 2006/12/29 5:27:00

关于工程催款的案例

最近比较近的案例就是关于工程款拖欠的问题了，以前我也发了几封其它的信件，这是我引用合同条款发了14天的暂停施工的通知（非发行的合同非常简短，对承包商不是很有利，而且没有明示暂停施工的这个条款）。也起到了一定的作用，业主同意本月底付款。考虑到和业主的关系和后续项目等其它因素的影响，我们这边没有采取进一步的措施。下面我将我写的函件的内容付上：

Sub   :     SUSPENSION NOTICE FOR XAI-XAI & CHOKWE PROJECT

 

Dear Sir,

 

In response to your letter Ref: 154 dated on 23rd November 2006, we would answer your questions according to our Conditions of Contract:

 

l        According to Sub-Clause 44.1.(i) in “Compensation Events”, the 10% and 17% IVA of Advance Payment for our project had been delayed more than 84 days;

l        According to Sub-Clause 43.1 in “Payments”, all the local 10% currency parts and 17% IVA for all the Interim Payment Certificates were delayed since our project started (Some of them more than 84 days). And IPC5, IPC6 and IPC7 did not be paid as stated 28 days in our contract;

l        According to Sub-Clause 59.2. (d) in “Termination”, IPC 5 had overdue 88 days, the client had already breach of the Contract. We, as contractor, may terminate the Contract instead of Suspension Notice;

l        According to Clause 62 “Release from Performance”, we are frustrated by the delayed payment which entirely outside the control of Contractor. We have to stop works as quickly as possible.

l        According to Sub-Clause 63.(b) “Suspension of ADB Loan”, as long as we did not receive sums due it within the 28 days for payment provided for in Sub-Clause 43.1, we may immediately issue a 14-day termination notice instead of Suspension Notice

 

We are taking much softer actions just want to notify and provide more time for our client to solve the delayed payments.

 

In despite of the “Early Warning for suspension of Project” in our letter: CGCMOZ/C&X/M0182 dated on 22nd November 2006, we found that there were still no any further payments been paid to our accounts till now. We are hereby formally to inform you that we have no choice but to suspend our project from 15th December 2006 if payments been further delayed:

 

1.        All the works in Xai-Xai & Chokwe project will be suspended from 15th December 2006;

2.        We will be entitle to payment for standing-by charges of Contractor’s Plant, Materials and Personals during the suspension before we could restart this project later on;

3.        We kindly request client to take over the responsibility for protection, storage, security and insurance of such suspended Works, Plants and Materials on 15th December 2006; The risk of loss or damage to the suspended works shall then pass to the Client.; Please be informed and make proper arrangement of taking over with client;

4.        We will be entitle to extension of time and other additional payments due to this suspension before we could to restart this project later on;

 

By the way, we have to reiterate that “if the payments were still delayed, we may terminate the works in accordance with our contract”.

 

Attached, pleased find the statement regarding the overdue days in order.

 

Thank you for your usual cooperation.

 

Yours sincerely,

 

 

 

 

其中主要谈根据合同，我们不得不停工，并且在我们停工的时候，我们保留相应的权力，比如：移交现场，设备人员的滞留费用，工期延长，费用的补贴等。语气有些强了点，但是针对比较赖皮的监理，没有办法而为之了。实际上，这是我们利用暂停施工来催款的一个合同的应用。（暂停施工的好处是：减少不必要的开支，并且所收取的滞留费用等比施工的时候日工程量还多－每个月我都提交设备人员清单，但不利的地方就是会影响和业主的关系，对拿下一个项目会有影响。所以要权衡而定）

 

另外一个感受就是：在实际工作如何平衡理论和实际监理、业主之间的关系的问题。合同的条款往往成为我们和监理、业主谈判的筹码而不是武器。

 

欢迎大家交流意见。

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