Descartes Conceivability Argument For Substance Dualism Philosophy Essay

Descartes Conceivability Argument For Substance Dualism Philosophy Essay Substance Dualism is the view that the mind and body are distinct. It pictures the world as consisting of two independent domains, the mental and the material, each with its own distinctive defining properties. We have clear and distinct awareness that the body is physical therefore it is spatially temporary and made from atoms which follow physical laws. It has dimensions, mass, texture etc. We also have clear and distinct awareness that the mind is non-physical therefore is not made from atoms or follows physical laws. The essence of the body is to be extended whilst the essence of the mind is to think. The mind is logically distinct and an independent entity to the body. So what can be asserted for one cant be asserted for the other. The mind will continue to exist without the body. It is infinite and immortal and will go to the afterlife. But the body is subject to decay because it is physical. It is not immortal and cant exist without the mind. The claim is there are two complet ely distinct substances, where substances mean a fundamental thing rather than stuff. In Descartes Sixth Meditation, he states one of his arguments for the mind and body being distinct. This is known as The Conceivability Argument: 1. I can clearly conceive existing without my body 2. What is clearly conceivable is possible 3. So it is possible for me to exist without my body 4. So I am neither identical with, nor a part of my body 5. So substance dualism is true Descartes, when considering himself, had a clear and distinct idea of myself (himself) inasmuch as I am (he is) only a thinking and unextended thing. Since he is thinking now, he must be a thinking thing. This property must be there as it belongs to his essence. If thinking ceases then he doesnt exist, an argument which he tries to prove in his early works in The Discourse. He has a clear understanding of what thought is. This allows him possibly to be non-extended as spatial temporality is not essential to him. He also has a distinct idea of body, inasmuch as it is only an extended and unthinking thing. If we think about an object we comprehend that its necessary extended and its essence is not thinking. For example, the essence of a stone is to be extended not to be a thinking thing. It is very hard to comprehend a stone thinking and if we can it is definitely not an essence of the stone. It is possible to conceive of the mind existing without the body and the body existing without the mind. Descartes uses the word possible in the sense that it is logically conceptual therefore not self contradictory that he can exist without his body. This is because it is possible to conceive of something being extended and non-thinking. Also it is possible to conceive of something being non-extended and being a thinking thing. For example we can conceive of my mind thinking but having no spatially temporality. God can create a world where whatever is conceivable is metaphysically possible because all things which I apprehend clearly and distinctly can be created by God. Thus anything conceivable becomes an actual truth. For example God cant create a square circle as it is not metaphysically possible. But God can create me, a thinking thing, distinct from my extended body since they may be made to exist in separation at least by the omnipotence of God. Therefore it is possible that my mind can exist without my body resulting in having a body not being essential to me. Descartes is moving from this doubt of his body to his essence. Descartes is using his scepticism that he is not going to accept anything that he is not certain of. He is certain of his own thinking and existence though. He concludes that this he can be sure of but this is the only thing he can be sure of: I am a real thinking thing and really exist, but what thing? I have an answer: A thing which thinks. But there are two different meanings to a thinking thing. One is something that thinks or another is something whose essence is to think, a thing that cannot not think. These are very different claims. He is making an epistemological claim to a metaphysical claim. He is arguing from how we come to know something to what it actually is. The argument shifts from a possible sense to a possible fact: It is possible that I am a thinking thing to my essence is a thinking thing. Knowing that I am thinking, it does follow that I am thinking in one sense. If I am thinking then I must be capa ble of thinking. But the claim that his essence is thinking is fallacious. If we take John Lockes claim that God can make matter think then God can make a stone think. A stone would then know that it is only a thinking thing and not know that it is extended. Therefore as its only aware of its own perceptions it can conclude that its essence is thinking. Just as God has made the stone think, God can take this away. Therefore the stone is left with its essence being extended and non-thinking. Moreover, all because the mind and body have different essences, this does not mean that they have to be two different substances. Surely they can be one and the same thing. Cant there be one entity which is thinking and extended? Jerome A. Shaffer uses the example of one entity, a man: The defying characteristic of being a husband is being a married man and the essence of being a parent is having offspring, but one and the same person can be both. Hence all because we have conceived of two entities having different properties it does not mean that they actually exist distinct from each other. For Descartes it would seem that they have completely distinct essences that it is impossible for them to not be distinct. Therefore the example of a husband and a father is seemingly weak because the actual properties of the occupier of the essences are both extended and male. Whereas the properties of extended and thinking things have, according to Descartes nothing in common. It would appear that there needs to be a stronger example from Shaffer to show that the mind and body can be one and the same thing. George Graham has a stronger example of the Gods making Oedipus marry his mother. As he didnt want to marry her he would say: very idea disgusts me, I find it unconceivable that I will marry my mother. Oedipus then falls in love with Jocasta, who is actually his mother. If we asked him what he thought about marrying her he may say: Very idea pleases me, I find it very conceivable. We would then conclude that Oedipus can conceive of himself marrying Jocasta but cant conceive of himself marrying his mother. Therefore they are not the same person. If I can conceive of myself as disembodied but cant conceive of myself without a mind you cant conclude that your mind and body are distinct as they can be one and the same thing. This is because the conclusion is aspectual and realises on aspectual knowledge. This aspectual knowledge that Graham mentions is a major downfall to Descartes conceivable argument. Gottlob Ferge explains this with the ancients knowing that Venus is the morning star whilst believing that the evening star was Venus as well or illiterate people not knowing that water is identical to H20. The mind and body could be the same thing but he they are assessed differently, one by introspection and one by inspection but this doesnt mean they can be separated and exist apart from each other. W. D. Hart creates a story to strengthen Substance Dualism and tries to show that the mind and body are not one and the same thing. This is because we can conceive the mind to exist without a body: Imagine one morning you wake up and go to the mirror. Looking in the mirror you realise that your eye sockets are empty. You can visualise your face with empty eye sockets as it would look to you in the mirror. You then saw around your head and see that your brain is not there. You can visualise how your empty brain pan would look to you in the mirror. Lastly it is still possible to visualise if you had no body. You would see the reflection of the room in the mirror. So you have a recipe for visual experience of yourself disembodied. As this is a thought experiment it could not actually occur in the real world. But the fact that we can imagine being disembodied. As we can imagine being disembodied without contradiction, it means that it is metaphysically possible. Hart would conclude that it is metaphysically possible for me to exist disembodied. Therefore the mind and body are distinct as disembodied existence can occur. Is it not possible to conceive of water not being identical to H2O even though it is metaphysically impossible? If we can then it is possible to conceive of the mind existing apart from the body doesnt show that it is metaphysically possible. For this metaphysically possible for the mind to exist with the body then the mind must be numerically distinct from the body. Kripke used his concept of rigid and non-rigid designators for Cartesian Dualism argument to prove that they are numerical distinct: If a and b are rigid designators, it follows that a = b if true, is a necessary truth. If a and b are not rigid designators, no such conclusion follows about the statement a = b The rigid designator water is identical to the rigid designator H2O. This is true scientifically. Water is identical to H20 in every possible world. If we have two rigid designators and the two are identical then this will mean that conceivability entails metaphysically possibility. This is because we cant conceive of a possible world where H2O is not Water. According to Descartes this would mean that God couldnt create a world where Water is not H2O as they are the same substance with the same essences. We cant conceive metaphysically that water is not H2O as this would make no sense. However it does not work if we use water non-rigidly. Water may not be a direct reference to H2O but a summary of the properties. This would be topic neutral as we are leaving out the nature of water. We could have a sample of water but not know that it is H2O, just like our predecessors. We cant conceive of them being identical in every metaphysically possible world therefore H2O is not water. We can easily conceive a non-rigid designation of water, for example tap fluid, rain, a lake that may not have been H2O as it is only there empirical properties that we know. As long as it is a non-rigid designator of water and we produce the properties, water can be anything. Thus we could conceive of the substance described as having a different chemical composition in a possible world. Kripke applies this to a brain state being identical to a mental state and tries to improve Descartes argument. We are immediately subjectively aware of mental states. We have immediate perceptions of them inside me. What you are experiencing when in pain is pain. It is an internal content of consciousness and this is the only way we can understand it. Therefore it is a rigid designator. If we can conceive of mental states being identical to the body then this would mean that it would be a necessary truth. If Descartes can conceive of himself being distinct from his body then Descartes is not identical to his body. Through modern neuroscience research it is possible to see that Descartes immaterial explanation of thinking being the essence of the mind is a lot simpler than getting a brain dependent theory. He believed that: Each substance is thought to have its own laws and its own range of properties; hence research on the brain is not going to yield any knowledge of the mind. But as more research occurs with neuroscience and neurology the more we realise how absurd the concept of Substance Dualism is. The mind apparently has higher functions which are reasoning, consciousness, emotion etc. All of these higher functions can be changed by drugs or an injury. For example damage to the temporal Lobe, the person with this damage will learn complex cognitive skills but will be unaware he has done so, even while engaging in them. There are many other examples of how the brain affects our higher functions. If the brain is dependent on the mind then how can this be true? How can the brain affect thinking as thinking is not its essence? Therefore it would seem that dualism fails not so much because of our limited knowledge of the mind but rather because of modern science. As the conceivable argument needs the essence of the mind and body to show that they we can conceive of them distinctly, if Descartes has got the essences wrong then he cant conceive of himself di sembodied. Doesnt entail it false as further research may discover there is a substance dualism but at the moment there is no leads.

Creativity in Literacy Practices

Creativity in Literacy Practices: A TEXTUAL AND CONTEXTUAL APPROACH by Agatha Xaris Villa INTRODUCTION AT PRESENT, THERE ARE A NUMBER OF APPROACHES TO THE STUDY OF LINGUISTIC CREATIVITY. THEY DIFFER IN THE WAY THE WAY THAT THEY CONCEPTUALIZE WHAT COUNTS AS CREATIVENESS OR ‘LITERARINESS’ IN LANGUAGE AS WELL AS IN THE METHODS THEY USE TO IDENTIFY AND ANALYZE CREATIVITY IN EVERYDAY LANGUAGE.This essay begins by discussing and exploring the premises of an analysis of creativity at text level following a textual approach to literacy and creativity; assessing the extent to which it is effective in identify creativity in literacy practices such as diaries, letters and graffiti.However, I would like to continue by presenting the argument that while literacy practices do offer opportunities for creativity at text level, the study and identification of creativity in literacy practices may be more productive when studied with a broader perspective – one that goes beyond the limits of the text and considers the influence of context in the production, reception and processing of texts, literary practices and creativity. Creativity in literacy practices at text level LITERACY IS AN IMPORTANT ASPECT OF EVERYDAY LIFE AND IS A PART OF EVEN OUR MOST MUNDANE SOCIAL PRACTICES.WHILE THE ROLE WHICH LITERACY PLAYS IN SITUATIONS MAY VARY IN IMPORTANCE, IN THE CONTEXT OF LITERACY EVENTS WHERE LITERACY PLAYS A SIGNIFICANT ROLE, INDIVIDUALS DEVELOP CHARACTERISTIC AND PATTERNED WAYS OF USING AND INTERACTING WITH TEXTS. THESE HABITUAL PATTERNS HOLD DIFFERENT MEANING AND VALUES FOR INDIVIDUALS AND ARE WHAT WE REFER TO AS LITERACY PRACTICES. Creativity in literacy practices at the level of the text may be identified by focusing on special linguistic forms that stand out in texts. This pproach is modeled after what Carter (1999) called an inherency perspective which perceives creativity as being ‘inherent’ in the creative uses of language intrinsic in text. Th e focus is on the writer’s skill in the manipulation of linguistic forms that constitute text on the phonological, grammatical and semantic level. Roman Jakobson (1960), one of the well-known advocates of this approach, was concerned with the ‘poetic function of language’ which was believed to be in close relation to literariness in text.He argued that the poetic function of language involves the ‘foregrounding’ of language forms which have the ability to draw attention to themselves – making a noticeable impact on the reader. Foregrounding results from stylistic choices which may come as (1) deviations from the norms of everyday language (e. g. the use of different writing systems, lexis and ‘figurative language’ such as metaphor and simile or (2) prominent patterns of parallelisms in phonology, grammar and semantics (e. g. meter, rhyme, etc. (Maybin and Pearce, 2006, p. 6 – 9). By highlighting the ‘poetic usages of language’, we can identify creativity in diaries at the text level. The metaphoric descriptions and dramatic portrayal of entities and events in diaries are ways in which individuals attempt to explore their feelings regarding their experience of the ‘real world’ that are often difficult to describe. In addition, repeated structures and rhythms are commonly used in diaries as a form of emphasizing points in the writer’s diary entry.Such examples of ‘poetic language’ may also be identified in letters. In Margaretta Jolly’s (1997) study of war letters, she states that letters are probably ‘the most common form of creative writing. ’ Her examples point out the creative way in which letter-writers are able to use language forms such as imagery, metaphoric and rhetorical devices as well as parallelism (more commonly related to literature) for the purpose increasing the text’s emotional and persuasive impact and highlighti ng contrast and subtleties of meaning (Maybin, 2006, p. 72). The â€Å"art of graffiti† is a long-standing tradition with the ability to exhibit creativity at text level both in its traditional and embellished form. Creativity is seen in the use of rhythmic repetition, puns and contradictory voices (as in parody and irony), the use of non-standard spelling and punctuation (usually in line with a particular artistic style) and the use of text and decoration for aesthetic and communicative purposes.While it is possible to be able to identify creativity in literacy practices at text level, this approach is somewhat limited because it fails to take into account: (1) the interactive features and functions of literacy practice, (2) the influence of its socio-cultural and historical context and more importantly (3) the creativity in language practices that is inherent and emergent from social practices in particular contexts.Therefore, I suggest that a better and more efficient way to identify and evaluate creativity in literacy practices, is one that approaches literacy from a more contextual approach, more specifically from an ethnographic perspective. Creativity and literacy practices from an ethnographic approach According to the ethnographic approach defined by Papen and Tusting (2006, p. 312-359), creativity refers the production of something ‘new’ and ‘original’. In written language, creativeness should not be perceived as a decontextualised, individual activity or as being entirely shaped by context.It should be seen as being dependent on and emergent from the creative literacy practices through which texts are constructed because they are shaped by people, who in pursuit of their own goals and purposes, actively draw on the interactional, contextual and socio-cultural possibilities available in the particular social situation they are embedded. Literacy practices are inherently creative in and of themselves. The ethnographic perspective takes into account the broader social-political context within which creativity is located and through their examination of iteracy practices and texts, advocates of the ethnographic approach found three major characteristics of creativity in writing. To begin, by focusing on people’s literacy practices rather than just texts, they noted that creative texts are produced as a result of interactive collaboration. Diaries, although written by a single person, emerge from an individual’s account and reflection of events and various conversations and interactions with people.Diaries and journals are dialogic practices wherein the writer addresses and responds to a ‘reader’ and have the potential to be re-contextualized in different publications to address a wider readership (Maybin, 2006, p. 269) This dialogical aspect is more evident in web blogs or online journals in which people often (1) write in response to the entries of others, (2) write entr ies addressed to others and (3) write with the expectation and even the goal to get as much response from others. Maybin (2006, p. 73) tells us that letters are even more intensely dialogic in nature. I believe that letters are best viewed as mediums of ‘correspondence’ wherein we present written versions of our personal experience, relationships and identities in relation to an assumed reader who then responds by confirming or questioning. Letters are shaped by and inspire collaborative practices An interesting characteristic of graffiti that I believe exemplifies the collaborative nature of creativity is the way that graffiti attracts graffiti (Macdonald, 2006).A graffiti-covered wall may look like vandalism to law-enforcers or a rather threatening cacophony of ‘names’ to the common passerby but it constitutes a symbolic exchange between members of a sub-group. In the world of graffiti, tags located on the same space are often interpreted in relation to t heir positioning and proximity to each other. They may be viewed as a sign of respect, acknowledgement or outright disregard – a reflection of the intensely competitive nature of this practice.In addition to the collaborative nature of creative literary practices, the ethnographic approach pays careful attention to the influence of the context of reading and writing in the development of creative practices (Papen and Tusting, 2006, p. 320). They argued that in any given opportunity, there is particular set of possibilities and constraints that provides the opportunity for creativity. This involves affordances (i. e. properties of the environment, arising from its material characteristics which may be positive or negative depending on the individual) from new forms of technology, discourse conventions as well as inter-textual and material resources available to producers of text. An important thing to note is while possibilities may determine what is possible in any given cont ext, the possibilities associated with a setting do not determine what is created.For example, while people may be able to describe events, sights and even people through the practice of diaries and letters, there are abstractions such as feelings and intensely traumatic situations (such as in war) that are far more difficult to describe and articulate. In order to overcome this type of ‘constraint’ on expression, writers make use of metaphoric language and parallelisms, enabling them to represent their feelings and experiences in ‘words’ that their readers may be able to relate to. Creativity may also emerge from socially-constrained situations.Graffiti emerged from the same socially and economically impoverished areas in America where gangs are notoriously prominent. Because graffiti is an act of illegitimacy and opposition, graffiti artists face the constant risk of being caught by the police or by rival gangs each time they make a ‘tag’ or do a ‘piece’. But this high-risk and intensely competitive literacy practice is a stage on which young men may choose an identity of their own making, present it in the style of their choice and regain control of their own ‘fate’ – free from the constraints of their socio-economic backgrounds (Mcdonald, 2006).Social, economic or technological changes may result in the introduction of new affordance and constraints to any given context (Papen and Tusting, 2006, p. 325). For example, the popularization of the internet brought about the development of Computer Mediated Communication (CMC), resulting in the creation of new literary genres and changes in literacy practices. According to Kress (2003), creativity may be perceived as inherent in CMC using the two concepts of ‘transformation’ and ‘transduction’.Transformation is the way that the text producers manipulate the forms of signs within a mode to suit their needs and intere sts. Transduction, on the other hand, refers to the movement of ‘semiotic material’ between modes where meaning configured in one mode is moved to another. Online diaries, known as online ‘blogs, perform the same function as traditional diaries and even employ the same linguistic forms. However, bloggers now have access to a greater degree of interactive, inter-textual and multi-modal resources.Whereas in the past, writers creatively used language to express their thoughts and feelings through metaphors and similes, bloggers can now make use of pictures, videos, music, emoticons, avatars and (through hyper-linking) other texts to represent themselves and their lives online. Similarly, the literacy practice of letter-writing is far from extinct in today’s modern ear but has taken up a new form – that is, electronic mail (e-mail). As a medium of communication, email has enabled cross-cultural communication and the creation of online relationships and à ¢â‚¬Ëœnetworking’ communities.Finally, the ethnographic perspective sees creative literacy practices in everyday life as being embedded in socio-cultural practices situated in institutional, political and economic structures. These structures are in a constant state of movement and change therefore taking on a historical perspective towards literacy practices is a necessity. Based on observation and study, changes in socio-economic conditions are often accompanied by changes in the linguistic and semiotic means available to a community as in the case of the following account of changes to a Nepali rural community Papen and Tusting, 2006, p. 328). The 1980s was a time of great social and economic change in Junigau, Nepal. In 1983, the village set up its first high school, providing greater access to education for men and women – resulting in great changes to the literacy practices used by the young. A new form of ‘prolonged courtship’ (i. e. , love-letter w riting) had become increasingly popular among the youth, improving gender relations and changing marriage practices (as the young were becoming more resistant towards arranged marriages).The way in which these love-letters encapsulated new ideas on personal identity and individual agency which held no cultural precedent in their village is an example of how social and cultural change is closely related to the creation of new literacy practices (Papen and Tusting, 2006, p. 328) Conclusion ANALYZING CREATIVITY AT TEXT LEVEL, ALLOWED US TO IDENTIFY CREATIVENESS IN TEXTS AS IS REVEALED BY THE USE OF POETIC LANGUAGE OR LINGUISTIC FORMS COMMONLY ASSOCIATED WITH LITERATURE.THIS APPROACH HOWEVER WAS VERY MUCH LIMITED DUE MAINLY BY THE NARROWNESS OF THE INHERENCY MODEL’S DEFINITION OF WHAT CONSTITUTES AS CREATIVITY AS WELL AS TO ITS LACK OF CONSIDERATION OF CONTEXTUAL FACTORS AND THE INHERENCY OF CREATIVITY IN LITERACY PRACTICES. In taking an ethnographic/historical perspective, chara cteristics of creativity that are inherent in literacy practices become more salient. Through our understanding of the three characteristics of creativity in literacy practices, we’ve identified creativity beyond the level of the text.This contextual approach showed us how creativity is exhibited in literacy practices in the way that (1) texts are read and used, how the writer interacts with other individuals;(2) how people are able to creatively use language in relation to the possibilities and constraints available in particular contexts and finally, (3) individuals are able to adapt and respond to changes in discourse practices and socio-cultural conditions. References CARTER, R. (1999). ‘COMMON LANGUAGE: CORPUS, CREATIVITY AND COGNITION’, LANGUAGE AND LITERATURE, 8(3), P. 196-216 Jakobson, J. (1960). Closing statement: linguistics and poetics’, in T. A. Sebeok (ed. ) Style in Language, MIT Press. Jolly, M. (1997). ‘Everyday Letters and Literary F orm: Coresspondence from the Second World War’, unpublished MPhil, University of Sussex. Kress, G. (2003). Literacy in the new Media Age. London and New York, Routledge. Macdonald, N. (2006). Chapter 6. Reading B: ‘The spray-can is mighteier than the sword: graffiti writing and the construction of masculine identity’ in Maybin, J. and Swann, J. (eds) The art of English: everyday creativity. Palgrave Macmillan/The Open University, p. 293 – 302. Maybin, J. 2006)(Ed. ) Chapter 6 ‘Writing the self’, in Maybin, J. and Swann, J. (eds) The art of English: everyday creativity. Palgrave Macmillan/The Open University, p. 261 – 279. Maybin, J. and Pearce, M. (2006). Chapter 1 ‘Literature and creativity in English’ in Goodman, S. and O’Halloran, K. (eds) The art of English: literary creativity. Palgrave Macmillan/The Open University, p. 6-9. Papen, U. and Tusting, K. (2006). Chapter 7 ‘Literacies, collaboration and context ’ in Maybin, J. and Swann, J. (eds) The art of English: everyday creativity. Palgrave Macmillan/The Open University, p. 312 – 331.

Forfeiture Clauses in Construction Contract

In building and engineering contracts it is usual to insert a provision empowering the employer to forfeit certain rights or property of the contractor on the occurrence of certain events. â€Å"Forfeiture clause† is a loose term usually used to describe a clause in a written building contract giving the employer the right upon the happening of an event to determine the contract or the contractor’s employment under it, or to eject the contractor from the site, or otherwise to take the work substantially out of his hands.In standard form building contracts it is usually referred to as ‘determination of employment’ or termination. In this sense JCT SBC 05 clauses 8. 4 and 8. 9 which relates to termination by employer and contractor respectively are forfeiture clauses. It is common in construction contracts to find determination clauses allowing either side to bring their contractual obligations to an end should an event specified occur due to the actions or i nactions of the other.It would seem that common law determination and determination under a clause of contract are alternatives. There are differences between the processes. First, whereas common law determination depends upon repudiatory conduct or a fundamental breach, the grounds of determination specified by the contract need not exhibit these features, although frequently such will be present. Second, the remedies for common law determination are provided by law, whereas with a contractual determination the clause itself must expressly deal with the issue of remedies.Third, at common law in the face of repudiatory conduct or fundamental breach the innocent party need only indicate to the other that he accepts the breach and considers the contract discharged. Under a contractual determination clause the procedure specified must be carefully followed, failure to so may prevent a successful determination. The right of forfeiture may be stipulated to accrue either 1) on the bankrup tcy of the contractor only, or ) on his bankruptcy and also on the occurrence of other events, or 3) on the occurrence of other events only Clause 8. 5. 1 of the JCT SBC 05 states that if the contractor is insolvent, the employment may at any time by notice to the contractor terminate the contractor’s employment. Similarly Clause 8. 10. 1 of the JCT SBC 05 states that the employer is insolvent, the contractor may by notice to the employer terminate the Contractor’s employment under the contract.A provision empowering the employer to forfeit the contract on the bankruptcy of the contractor is introduced into building and engineering contracts for the purpose of preventing a contractor’s trustee in bankruptcy from electing to complete the contract, and such a provision is valid, if it is coupled with a stipulation that the contractor’s contract shall be a personal one; and further, so far as the forfeiture affects the mere licence of the contractor to enter upon the site, it would seem that the revocation of that licence can be conditioned on bankruptcy, as a mere licence does not seem to be included in the definition of property[1].A trustee, however, would be entitled to enter the site to remove property of the bankrupt in respect of which the employer had no right under the contract The validity of a right to forfeit on the bankruptcy of the contractor is dependent on the nature of what is stipulated to be forfeited.In addition to bankruptcy, forfeiture is usually conditioned upon the happening of one or more of the following events: 1)not commencing the work 2) not regularly proceeding with the work for a fixed number of days[2], 3) not proceeding to the satisfaction of the employer or the architect[3], 4) not proceeding with such despatch as, in the opinion of the architect, will enable the works to be duly completed by the time stipulated, 5) not observing some stipulations of the contract[4] 6) leaving the works in an unfinishe d state, or 7)failing after proper notice to rectify defective work, 8) not maintaining the works[5] JCT 05 SBC Clause 8. states: 1. Notice of termination of the Contractor’s employment shall not be given unreasonably or vexatiously. 2. Such termination shall take effect on receipt of the relevant notice 3. Each notice referred to in this section shall be given in writing and given by actual, special or recorded delivery. Where given by special or recorded delivery it shall, subject to proof to the contrary, be deemed to have been received on the Second Business Day after the date of posting. Also Clause 8. 3 of the JCT 05 states: 1. The provisions of clauses 8. 4 to 8. 7 are without prejudice to any other rights and remedies of the Employer.The provisions of clauses 8. 9 and 8. 10 and (in the case of termination under either of those clauses) the provisions of clauses 8. 12, are without prejudice to any other rights and remedies of the contractor. 2. Irrespective of the grou nds of termination, the contractor’s employment may at any time be reinstated if and on such terms as the parties may agree The requirements of the contract must be properly complied with, for the courts construe forfeiture clauses strictly[6], and a wrongful forfeiture by the employer or his agent normally amounts to a repudiation on the part of the employer[7].There must be some definite unqualified act showing that the power has been exercised, although writing or other formality is not necessary unless expressly required. The contract may also require a certain notice to be given, and that such notice must set out the default complained of[8]. In appropriate circumstances the notice may be of a general character and need not necessarily refer to the number of the clause which is being invoked, provided that there is no doubt that it is exercising or purporting to exercise the contractual power of determination[9].But it is obviously preferable to state explicitly the clau se relied on and to follow its actual wording as closely as possible. It also seems that if a material statement in such a notice is made recklessly, without an honest belief in its truth, the notice is a nullity. Forfeiture in reliance on such a notice would be ineffective and would normally amount to repudiation by the employer. When an event occurs which gives rise to the right to forfeit, the power of forfeiture must be exercised within a reasonable time or the employer will be deemed to have waived his ight unless the event is a continuing breach of contract. Where the contract provides for termination of the contract by a warning notice followed by a termination and two notices have been served, a party can only rely on that provision if an ordinary commercial businessman can see that that there is a sensible connection between the two notices both in content and in time as seen in the case of Architectural Installation Services v James Gibbon Windows[10]Also, where the contra ct provides for completion by a certain date and also provides for forfeiture for delay, and the completion date has passed, it is a question of construction whether the forfeiture clause for delay can still be enforced. Thus where the object of the clause was to enable the architect to â€Å"have the means of requiring the works to be proceeded with in such a manner and at such a rate of progress as to ensure their completion at the time stipulated† it was held that the clause did not apply after the completion date[11].But in another contract where the clause provided â€Å"for the execution of the work with due diligence and as much expedition as the surveyor will require†, it was held that the clause was as much applicable to the fulfilment of the contract within a reasonable time as to its completion by the contract date. The parties may agree that any consequences may follow the exercise of a right of forfeiture[12], provided there is no illegality, nor fraud on the bankruptcy law, and the clause is not so onerous that it will not be enforced on the grounds that it is a penalty[13].The employer is usually given the right to take possession of the site and complete the works. In addition, there is frequently a clause vesting the property in unfixed materials, and perhaps plant, in the employer, or there may be merely a right to seize the materials[14] or hold them by way of lien[15] until they are built into the works, or there may be clauses giving the employer rights to use the contractor’s plants and materials[16]. Where the contractor is guilty of any of the defaults specified in clause 8. . 1 JCT 05 SBC, the contract administrator is to issue a written notice specifying the default. If the default is then continued for 14 days, the employer may within 10 days of the continuance terminate the contractor’s employment by using a notice to this effect. Furthermore, if termination does not take place on this occasion, any subse quent repetition of a specified default gives the employer the right to terminate immediately; there is no need (and indeed no power) to issue a second default notice. 17] It is also expressly provided under clause 8. 2. 1 that a notice of termination is not to be given ‘unreasonably or vexatiously’ When an employer, in exercise of his rights under a forfeiture clause, enters and completes the work and uses the contractor’s materials or plant, or holds retention money due to the contractor, he must, subject to the provisions of the contact, account to the contractor. He will have to show that that the materials and plant and money were expended reasonably[18].The Court, it would seem ,as seen in Fulton v Dornwell[19], will make full allowance for extra cost caused by the disruption and delay occasioned by the contractor’s default. Also, where the employer determines the contract under a forfeiture clause because of some breach of contract by the contractor , the employer’s right to damages depends upon the wording of the contract. He may not be entitled to the enhanced cost of completing by another contractor if the breach for which he determined the contract did not amount to repudiation and the contract does not so provide. 20] Termination of contract was examined in the recent case between Ellis Tylin ltd v Co-operative Retail services[21]. Co-operative Retail services Ltd (CRS) is a national retailer which operates from approximately 730 premises across the country. In early 1996 it contracted with Ellis Tylin the task of maintaining and repairing mechanical and electrical plant within its various premises. The contract was for a period of three years with provision for revision of rates of payment at the end of the first and second years.Disputes arose as to the scope and responsibility for works carried out under the agreement and the operation of the contract came to an end three months after the end of the first year. C lause 1. 8 of the agreement concerned the review of fees for the maintenance services and the rights of either party to terminate the contract in the event that agreement could not be reached. Disputes arose as to whether the proper mechanisms for termination had been applied and the court was asked to consider these questions as preliminary issues.It was acknowledged that the right of Ellis Tylin to end the agreement pursuant to clause 18 only arose if Ellis Tylin first took the action described within that clause. This involved making a written proposal for the revision of the amount of the fees after the expiry of ten months from the date of commencement of works. CRS argued that Ellis Tylin had failed to follow this procedure. Counsel for CRS submitted that clause 1. 8 of the contract should be construed either as a determination clause or as a break clause comparable to the type of provision found in leases. Strict compliance was required.The act of contractual determination wa s one which deprived the other party of the benefit of the contract it had concluded. His honour Judge Bowsher QC reviewed textbooks on the subject of contractual termination. In Chitty on contracts (27th edition)[22], it was stated â€Å"the terms of the of the termination notice may provide that notice can only be given after a specified event†. In the Interpretaion of contracts by Kim Lewison QC[23], it is stated â€Å"An option to terminate is construed in the same manner as any other option, and accordingly any condition must be strictly complied with.Any condition precedent must be strictly fulfilled. The clause must be exercised strictly in accordance with its terms†. Also Hudson’s Building and Engineering (11th edition) states[24], â€Å"Exact and meticulous compliance by the determining party with any formal or procedural requirements laid down in the termination clause, for example, as to notices or time limits, will usually be required if a contractu al termination is to be successful†Judge Bowsher added however, that words in a contract should be given a natural and ordinary meaning and he quoted Lord Diplock when he said in Antaios Cia Naveira SA v Salen Rederierna AB[25]: â€Å"if detailed semantic and syntactical words in a commercial contract is going to lead to a conclusion that flouts business common sense, it must be made to yield to business common sense†.Judge Bowsher concluded that whilst Ellis Tylin had given notice earlier than the time period set down in the contract, there could be no doubt of the intention that negotiations should take place for a revision of the fee. Taking into account all the evidence he concluded that Ellis Tylin had given valid notice of termination of agreement. However, subsequent evidence showed that the parties had in fact agreed revision to the fees to be submitted to the second year of the contract.Accordingly the notice of the termination had been overridden, and could no t be regarded as a valid notice. By ceasing to work following expiry of its invalid termination notice, Ellis Tylin had repudiated the contract. The wrongful operation of a termination clause (i. e when you are not entitled to) amounts to repudiation. A contractual power of determination will be wrongly exercised if the events upon which it is conditioned are not established (unless the contract provides for that question to be concluded by a binding opinion or certificate).In the great majority of modern contracts the question will be subject to review by an arbitrator or the courts, however; and it has also been seen that the courts have, under some clauses, been prepared to imply a term that the exercise of the power itself should be reasonable as seen in Renard Construction v Minister of Public Works[26]. Contractual determinations will also be wrongful if exercised prematurely in breach of a contractual time limit, however marginally.It is an unavoidable feature of construction contracts that an employer’s purported determination will in nearly all cases constitute a repudiatory breach, if whatever the general merits, it later transpires that the determination was invalid. In such a case, if the contractor has accepted the repudiation by leaving the site, the owner will be liable for the possible heavy damages attendant upon repudiation and cannot, if he discovers his mistake, restore the contract status quo ante without the agreement of the contractor.The purported exercise of a power to forfeit may be invalidated either by reason of the fact that the events upon which it is conditioned have not occurred; or, that a correct notice has not been given[27], or that that a sufficiently clear election to exercise the right has not been made, or that there has been a been delay or other conduct recognising the continued existence of the contract after knowledge of the breach, if the breach is not a continuing one.Generally, the measure of damages in the case of a wrongful forfeiture falls to be determined by the ordinary common law rules. Per Lord Cranworth in Ranger v G. W. R. y,[28]: â€Å"The right of the appellant (the contractor) would be to recover such amount of damages as would put him in as nearly as possible the same position as if no such wrong has been committed-that is, not as if there had been no contract, but as if he had been allowed to complete the contract without interruption†In Smith v Howden Union (1890), the plaintiff had nearly completed a sewerage contract and the engineer fraudulently refused to certify. The defendants took possession of the works and certain plant. It was held that the plaintiff was entitled to damages for prevention of completion, such damages being what he would have been entitled to if he had completed and the engineer had certified; and judgement was given for the unpaid balance of the contract price, extras properly ordered, extras properly certified, and the value of the plan t seized.The principle remedy for any breach of contract is an award for damages. As a general principle, where an employer is guilty of a breach of a construction contract, the contractor is entitled to damages under two headings. The first is damages for any actual loss that has been suffered, and the second is damages for any profit of which the contractor had been deprived. Where the employer’s breach is sufficient to justify the contractor in terminating the contract, the contractor is entitled to damages reflecting everything which would have een received under the contract, or proportion of it that remains outstanding at the date of termination, less what it would have cost the contractor to complete the work. It has been clearly established that the damages should include the profit element on work remaining to be done as seen in the landmark case of Wraight Ltd v P H & T (Holdings) Ltd[29]. Where, however, the contract is one which the contractor had under-priced and on which the contractor would thus have made no profit, only nominal damages will be awarded for the employer’s breach.This is because as seen in C&P Haulage v Middleton[30], an award of damages should not put the claimant in a better position than if the contract had been performed. But if this procedure was relentless pursued it would lead to a party in default having to pay ‘for all loss de facto resulting from a particular breach however improbable, however unpredictable’. [31] The courts therefore set a limit to the loss for which damages are recoverable, and loss beyond such limit is said to be remote. The famous rule as stated in the case Hadley v Baxendale[32] is: Where two parties have made a contract which one of them has broken the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either (1) arising naturally, i. e according to the usual course of things from such breach of contract itself, or (2) such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it† This is demonstrated in the case of Balfour Beatty Construction (Scotland) Ltd v Scottish Power Plc[33].The claimants there, who were constructing a concrete aqueduct over a main road, installed a concrete batching plant and arranged for the defendants to supply electricity to it. The claimants needed to pour all the concrete in a single continuous operation and so, when the electricity supply failed, the claimants had to demolish all the work which had been done. Unsurprisingly, it was held that while the defendants were clearly in breach of contract because of the power failure, they were not liable for the extra losses nvolved in the demolition and reconstruction, since the claimants had not informed them that a continuous pour was essential. It has long been established th at contractor’s claims for loss and expense under express contractual provisions are assessed in exactly the same way as damages for breach of contract. Any disruption to the regular process of work under a contract may lead the contractor to incur administrative costs, such as the diversion of managerial time and effort, at head office.If so, these costs may justifiably be claimed, but it will not be simply assumed that such losses have been suffered. They must be specified and properly supported by the evidence, for example by records of the time spent by individuals in dealing with the particular problem[34]. Where the contract period is prolonged by something for which the employer is contractually responsible, the contractor may may also seek to claim in respect of general office overheads.When making application for the head office overheads part of loss and/or expense under Standard Form Building Contracts, contractors often base their claim on a formula. The Courts ha ve never given approval to the use of formula in this way although they have accepted the use of formulae in certain cases which generally were decided on their own facts. Indeed, the courts have tended to disapprove formulae unless as a last resort or the parties have agreed their use as seen in Alfred Mc Alpine Homes North Ltd v Property & Land Contractors Ltd[35]. Actual costs are normally required.Claims for head office overheads are essentially claims for lost opportunity to contribute to those overheads, because the overheads do not actually change or, if they do, the amount of any extra overheads directly resulting from the delay can be claimed separately. Formulae assume a healthy construction industry and a contractor with finite resources with the result that if he is delayed on a project, he will be deprived of the chance to take other work. Where the industry is sluggish or where the contractor is so large that turning away work does not arise, the latter will face diffi cult problems in showing the lost opportunity[36].There are several formulae in common use notably Emden formula, Eichleay formula and Hudson formula. Also a contractor who has accepted the wrongful repudiation is not restricted to suing for damages for breach on contract. He may, as an alternative, where he has elected to treat the contract as rescinded, sue upon a quantum meruit. The expression quantum meruit means â€Å"the amount he deserves† or â€Å"what the job is worth†. A quantum reuit clause claim is one in which the contractor seeks payment of the reasonable value of work done for the employer.Where the employer is in breach of contract, the crucial question is whether the contractor in such circumstances can simply ignore the contract and instead claim a reasonable sum for all the work done, even if this means that the contractor recovers more than what would have recovered under the contract. In the situation where there is a contract, then the issue in a Contractual Quantum Meruit claim is either the measure of the â€Å"reasonable sum† or the interpretation of similarly wide express terms. The issue is whether the measure is on the basis of cost or market price. There appears to be no hard and fast rule.In the case of an express contract to do work at an unquantified price, the measure is the reasonable remuneration of the contractor Serck Controls Ltd. v Drake & Scull Engineering Ltd[37]. In the case where there was a contract, the assessment of a quantum meruit was usually based on actual cost which would include on and off site overheads provided that it was reasonable and was reasonably and not unnecessarily incurred, plus an appropriate addition for profit[38] Judge Bowsher QC in Laserbore Ltd v Morrison Biggs Wall Ltd[39] had to decide the meaning of the term â€Å"Fair and reasonable payments for all works executed†.He considered that the costs plus basis was wrong in principle even though in some instances it may produce the right result. The appropriate approach was to adopt general market rates.

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