What Does “time at large” Mean?
For a contractor to be in delay (i.e. late in completing works under a contract) there has to be a date by which completion must be achieved.
Most of the time, that date is stated in a contract. Sometimes, a specific date is not stated but the relevant date can be calculated using machinery which is set out in the contract. For example, the contract might provide that the date for completion is 52 weeks after the work starts.
Completion dates are often linked to liquidated damages provisions, which provide that a contractor has to pay certain sums for each period (usually each week or month) that it is in delay past the completion date.
When faced with a claim for liquidated damages, contractors sometimes argue that the liquidated damages clause does not apply because the time for completion of the works “is at large”, or has been “put at large” by the employer.
What this means is that the previously agreed time (for completion) is no longer as stated in the contract because the employer has made it impossible to complete in that time. Thus the required date for completion is “at large” - a phrase used to describe something (like an escaped prisoner) that is on the loose, roaming freely, and unconfined.
However, the phrase is somewhat misleading because it is not the case that the date for completion is roaming freely. It may no longer be the date stated in the contract, but there will nevertheless be a date by which the works need to be complete if the contractor is to avoid being liable to the employer (in general damages) for the consequences of the delay.
In other words, when time is at large, the contractor must nevertheless complete the works within a reasonable timeframe, The contractor is not permitted to take an indefinite amount of time to finish the works.
What constitues ‘a reasonable timeframe’ will depend on the specific circumstances, including the nature of the works and what the employer has done to interfere with their progress.
The concept that time can be put at large arises from the "prevention principle," which dictates that Party A cannot demand Party B to fulfill a contractual obligation if Party A has hindered such fulfillment. Therefore, if an employer has prevented a contractor from completing the works "on time" as per the original contractual completion date (and the contract doesn't provide a way for this delay to be addressed), the employer cannot insist that the contractor adhere to the original completion date.
The "time at large" principle is arguably less relevant in modern construction disputes, as standard form contracts now typically include sufficient provisions for extensions of time, but not all parties use properly prepared standard form contracts.
A party seeking to argue that time is at large faces several challenges, including:
the lack of generally applicable case law: there are no cases which definitvely establish that if the empliyer does X, Y or Z, then time will definitely be at large. The case law is all very fact specific, and it is unusal for the specific set of circumstances that arose in a particular case to be replicated;
the court is generally reluctant to decide that time is at large when a construction contract includes an extension of time provision applicable to the delay events in question; and
there is a broader judicial preference for enforcing a contract's mechanisms rather than relying on extra-contractual concepts like frustration, quantum meruit, or "time at large" to avoid them.
If you are facing an assertion that time is at large under a construction contract, or if liquidated damages are being levied against you unfairly and you need to understand if they can be avoided, contact Hamshaw today.