The removal of the consideration requirement, and the consequent clarification on duress, for verbal modifications to Irish construction contracts

This thesis studies the consideration requirement for verbally-made contract variations in Irish construction contracts, and proposes how this specific circumstance can be best served by the law of contract. Construction is a complex and uncertain industry; and an effective construction industry is important and necessary for Ireland: it is a key driver of a functioning, developed economy, and it requires a sustainable level of activity to maintain infrastructure and develop new assets, consistent with what is expected of a developed nation. Yet it often involves projects of financial and technical vastness; and operates in an environment of risk, contractual risk allocation and residual uncertainty. The law of contract is essentially applied in the same way by the courts, regardless of whether the transaction is one of a major or minor nature. This contract paradigm is a straightforward and rigid system, which is designed for simple contracts involving equally-met parties, conducting non-complex transactions. Construction is an industry which operates within this contract paradigm, even though construction contracts are rarely as straightforward as those envisaged by the contract paradigm. When agreeing a construction contract, parties attempt to foresee all possible risks which could occur in the transaction, even though, in the case of construction, it is often impossible to foresee all the risks. This thesis studies the nature of the construction industry in general, and the Irish industry in particular; it examines the characteristics of risk and risk allocation in construction contracts, and then, by analysing the consideration requirement for contract modifications, as well as the doctrines of promissory estoppel and duress, looks at the alternatives to contract law requirements for the presence of consideration in situations of verbal modifications to existing, properly-formed construction contracts, where fresh consideration is absent. The thesis recommends that, in order to simplify the process which exists in the Irish construction industry, the consideration requirement be removed solely from this specific circumstance, for the categories of construction activity covered by the Construction Contracts Act 2013, and provided that duress is not present.