amend or waive the contractual terms of the method of ordering the extras and, if the contact provides, the extras can only be ordered in writing and the authority of the professional agent is limited in this regard. But if we think about it clearly, that is not the case. In this case, acting independently and fairly means that the principal representative must act as a primary attraction principle in accordance with the terms of the contract and be concerned with the interests of the client within those limits. Secondly, another very important reason for the appointment of agents for a construction project is the common law principle: (excuse Latin) Nemo judex in causa sua. The principle that no one should be a judge in their own case, which means that no one should be a judge in a case in which he or she has an interest. For employers who respect these rules of natural justice and impartiality, the appointment of an agent becomes an important step. First, the main task of the senior agent is to oversee construction work, verify progress and certify completion. In this context, the principal representative may, on behalf of the contractor, give the contractor contractual instructions regarding changes in the design, standards or quality of the work. Section 17.1.2 of the JBCC`s main construction contract states that « the principal agent may give the contractor contractual instructions regarding the modification of the design, standards or quantity of work if these contract instructions do not significantly alter the scope of the construction work. » These are broad powers that allow the employer, through the capture of its agent, to significantly enlarge the building to be built or to omit certain parts of the building. It may order that one type of building material be replaced by another. It may order the installation of facilities such as air conditioning systems where this was not provided for in the contract. However, even if the principal agent has been expressly empowered to order derogations from the works performed, he can only do so to the general extent of the contract and cannot order such derogations to alter the entire concept of construction.
In agreement with the court, the Supreme Court found that the JBCC gave the principal officer full authority to act in the agreement. He found that the employer had not acted in accordance with the principal representative`s recommendation to make the payment and, in those circumstances, prevented the principal representative from exercising his independent discretion in carrying out his duty. With respect to the wording of section 31, it follows that the obligation to pay a duly established payment, which is certified, is a separate issue from the discretion of the senior officer in assessing the value of the work and certifying the amount to be paid to the contractor. The independent discretion of the principal representative concerned the issuance or non-issue of the payment certificate and its amounts, in accordance with point 31. In the case of such an issue, item 31.9 requires the employer to pay the certified amount. Once the senior officer has certified an amount, the payment requirement is clear enough that the certificate itself creates the right to open a summary judgment procedure for payment of the certified amount. The fact that the certificate is recognized as a liquidated document shows that the principal agent has fulfilled his obligations. There may have been interference with the discretion independent of the principal representative in another employer action – perhaps, for example, when the employer expressed dissatisfaction with the steps taken for the redevelopment.
That is why we agree with the fact that the employer did breach its contractual obligations, but it appears that this breach is due to the fact that it did not take the necessary steps to make the payment in the form of such a certificate and that it is not an intervention or an impediment to the discretion of the senior officer himself.