Building safety and the limits of contract amendments

The Construction Products (Amendment) Regulations 2025 came into force in January 2026, aligning the new EU regime on product safety with UK law. How should solicitors approach drafting and negotiating amendments to standard forms to accommodate this new regime, and does this set a precedent for other building safety legislation?

It is important to remember that whatever an individual contract provides for in relation to building safety, this will only ever supplement and not replace the obligations imposed by the legislation itself.

The Building Safety Act 2022 (BSA) was brought in following the Grenfell Tower tragedy to better regulate the design, construction and management of higher-risk buildings. Main contract-producing bodies like the Joint Contracts Tribunal (JCT) have already introduced provisions to address these new rules. The 2024 edition of the JCT Design and Build Contract, for example, recognises the duty holder regime introduced by the BSA.

It is quite rare for specific legislative changes like this to be referenced in standard form contracts. The contracts are designed with a long shelf-life, so they need to be adaptable in changing legislative environments. The contract particulars section of each contract can be edited and amended to address project-specific terms, including any building safety aspects, but the general conditions should always stay the same to preserve the benefits of standardisation.

Contract stability
The success of building projects depends on the stability of the contractual standards that govern their operation. The building industry introduced its first standard form of contract in 1866, marking a pivotal step towards greater clarity, fairness and safety in construction projects. It came with the poignant advice that ‘it is not right to bring under the builder’s consideration legal conditions the effect and value of which he cannot rightly estimate without consulting his solicitor’.

Over these 150 years this principle has been restated time and time again.

1939 edition of the JCT Standard Form of Contract: ‘It certainly looks as if the Standard Form of Building Contract has come to stay. That it is so is as satisfactory as it is natural. Of all the various forms of agreement into which it is possible for parties to enter, few are more complex in their range and in their technical requirements than the contract for the erection of buildings between owner and builder. The existence of a Standard Form relieves the parties of the necessity of themselves evolving a form of contract to meet each individual case. Were it not for the Standard Form, the employer would in most cases be saddled with expense, which might be considerable, in drafting, or securing the drafting of, the appropriate form of contract, while on the builder would be imposed the burden of minute scrutiny to see that his own rights were safeguarded.’

1953 edition: ‘Seldom has such a document as the standard form of building contract received greater and more unremitting efforts...to achieve by critical revision a perfect balance between the parties. Special conditions should not be inserted relating to matters already dealt within the standard general conditions, nor be at variance with the standard conditions.’

‘Acceptance of the concept of standard conditions of contract involves a certain surrender of rights by the parties to a building contract. While the existence of a standard form relieves the parties of the necessity of themselves evolving a form of contract to meet individual cases, its advantages to the building industry as a whole can only be enjoyed if the parties equally deny themselves the right of altering the standard conditions to suit individual opinions as to what conditions of building contract should provide. We are of the opinion that this act of self-denial reacts to the mutual advantage of both parties. The elimination of uncertainties and ambiguities, and the certainty introduced by standardisation on fair and just lines in clear and simple language, necessarily creates the confidence required to reduce building costs.’

The International Federation of Consulting Engineers’ (FIDIC) Golden Principles in 2019, the Government’s Construction Playbook in 2022 and the Construction Leadership Council’s statement in 2024 all reinforced the best practice message on the benefits of using unamended standard form contracts.

The JCT continues to issue the same guidance to the present day in its 2025 practice note ‘Deciding on the appropriate JCT contract’ concerning the risks of amending standard form contracts and encouraging the avoidance of amendments as far as possible.

Fracturing the foundation
Standard form building contracts are as good today as they’ve always been. So why has this principle of standardisation been eroded by decades of amendments, complexity and bespoke drafting by practitioners, while the advice from the contract-producing bodies not to amend them has remained remarkably consistent?

Considering this question in the context of building safety has brought the reasons for amending to the fore. In their simplest forms the amendments create contractual obligations on the parties to comply with building safety laws.

More extensive amendments will introduce a regime of employer supervision of compliance at a contractual level. 

More extensive amendments may introduce a regime of employer supervision of compliance at a contractual level. Examples of obligations introduced through amendments may include requiring the contractor to:

• cooperate and collaborate with the employer to ensure compliance with building safety legislation;

• give a warranty or indemnity confirming that it has not acted in a way likely to breach relevant laws or place the employer in breach;

• procure compliance by its operational personnel and sub-contractors;

• provide evidence of continuing competence;

• notify the delegation of any duty-holder roles;

• provide corresponding collateral warranties and indemnities to third parties; and

• accept additional pre-conditions to practical completion linked to Gateway 3 certification and completion of the regulator’s ‘golden thread’ of information for high-risk buildings.

The Building Safety Regulator enforces these rules regardless of any contractual provision. It gives rise to the question: what is the enforceable contractual obligation in relation to a breach of statute, and what damages are payable? If the contractor breaches a safety statute but the employer suffers no financial loss, does the amendment give the employer any better remedy? The effect of such amendments is to elevate the employer to the role of a quasi-regulator, and it gives the employer the financial protection that flows from a potential breach of contract, while adding nothing to building safety or the protection of the public. Is it right for the employer to stand to profit from a breach of building safety law?

Law firms often describe building contracts by reference to the amendments they make to the standard form. The typical starting point in a contract negotiation is ‘do you agree these amendments?’. Evaluating a schedule of amendments in isolation is like inspecting a load-bearing beam without looking at the building it supports. Amendments do not exist in a vacuum. Their true impact on risk allocation can only be understood by how they stress or fracture the underlying standard form. Law firms should always explain how their amendments affect the standard form, and crucially, how they impact on building safety.

When amending we should focus on the process rather than the penalty. Adding bespoke obligations and indemnities will not cure physical defects on site. More likely, they will create overlapping liabilities and may risk the validity of the professional indemnity insurance cover the employer relies on, and they may foster a less than co-operative relationship between the parties.

Lawyers acting for employers tend to hold the balance of power in contract negotiations. The analysis of the intersection of contract terms and legislative frameworks in this practice note demonstrates the need for those lawyers to consider the right reasons for reshaping risk allocation, indemnities, warranties and compliance obligations in the contract, and to advise their clients accordingly. The objective should be building safety and public protection, not contractual advantage. The commitment to building safety is a collaborative endeavour, not a partisan campaign.

If it’s written in law, you don’t need to write it in the contract.

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