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An oral instruction to change construction work is not automatically payable—or automatically worthless. Whether the contractor can recover the extra cost and time depends first on the contract’s variation wording, then on what was said and done, and finally on whether the person giving the instruction had authority to bind the employer. A contractor who proceeds before the contract’s required written confirmation, notice or objection period has run may be left arguing about payment after the work is complete.
This article explains the practical issues discussed by Katherine Keenan in her Building article, published on the Building page on 22 July 2020 and identified as first published in Building on 5 March 2020 in Charles Russell Speechlys’ Winter 2020 Construct.Law publication. It is an explanation of those issues, not a determination of the law governing a particular contract or jurisdiction.
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Site teams often agree a change in a meeting, on a telephone call or while work is under way. The physical work may then be completed before a formal instruction is issued. The legal consequence is not fixed by the fact that everyone saw the work being done. The contract may recognise the oral instruction, may provide a route for confirming it later, or may make a written instruction a condition of a valid variation.
The same conduct can therefore produce different outcomes under different forms of contract. A contractor might establish a variation carrying additional time and money. It might instead have carried out work that was not validly instructed and risk being treated as having changed the contracted work in breach. In another case the employer may have permitted the change without agreeing any extra payment or extension. A separate payment argument may also be available, but only if the evidence supports it.
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Start with the variation clause
Before assessing conversations or emails, read the clause that controls changes. The wording determines whether an oral instruction can have contractual effect and what must happen next.
Contracts that do not require writing
Some contracts do not make a written instruction a prerequisite to a variation. Under such wording, an authorised oral direction may be effective, subject to the clause’s other requirements. The contractor still needs reliable evidence of the instruction, its scope and its effect on time and cost.
Oral instruction followed by contractor confirmation
Some clauses allow the contractor to confirm an oral instruction in writing. The instruction may become effective unless the employer objects within a stated period. That period matters: proceeding before it expires, or failing to send the confirmation, can change the risk allocation. Keep the confirmation precise enough that the employer can understand the work, the likely price and programme effect, and the basis on which the contractor says it is a variation.
Retrospective confirmation
Other contracts permit a variation to be confirmed retrospectively. This is different from an unrestricted right to payment. The clause may still prescribe who can confirm the change, the information required and the time for doing so. A retrospective mechanism is safest when used promptly rather than treated as permission to leave every oral direction undocumented.
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Written instructions as a condition
Some contracts say that only a written instruction is valid. If so, doing the work before the required instruction—or before a contractual confirmation or objection period has completed—can leave the contractor exposed. The employer may argue that no variation arose, that the contractor was not entitled to additional money or time, or that the contractor acted contrary to the agreed administration procedure.
| Contract arrangement | What the wording may do | Practical risk before paperwork |
|---|---|---|
| No written-instruction requirement | An authorised oral direction may operate as a variation, subject to the rest of the clause. | Disputes about what was instructed, by whom, and its time or cost effect. |
| Contractor confirmation with objection period | The contractor can record the oral direction in writing; it may stand unless the employer objects within the stated period. | Missing the confirmation, sending an unclear record, or working before the period has run. |
| Retrospective confirmation permitted | The parties can validate a change after the work or instruction, following the procedure in the clause. | Assuming retrospective confirmation is automatic when the clause imposes conditions or deadlines. |
| Written instruction required | Only the prescribed written instruction is valid under the contractual mechanism. | Carrying out the change without the required document can leave payment and time claims unsupported. |
Possible legal outcomes
The contract and evidence can lead to several distinct results. They should not be collapsed into the slogan that “oral variations are never payable.”
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A valid variation with time and money
If the contract recognises the instruction and the person giving it was authorised, the change may be valued under the contract, with an entitlement to additional time where the variation affects completion. The contractor must still prove the instruction and comply with any notice, pricing and records provisions.
No valid variation and a potential breach
Where writing is a condition and no compliant instruction was issued, the employer may say that the original scope remained binding. The contractor could then face an allegation that it changed the work without contractual authority. The financial result will depend on the contract and the facts; the absence of a document is not itself a universal answer.
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Permission to change without extra payment or time
The parties may have agreed to the physical change but not to a price or extension. Evidence of what was agreed, including any express reservation about cost, becomes important. Acceptance of the altered work does not by itself settle the payment question.
Payment on another basis
Even where the variation clause does not apply, the contractor may argue for payment on a different contractual basis. The article identifies an implied promise to pay, a collateral contract and waiver as possible arguments. Each is fact-dependent and can fail if the evidence, authority or contract wording does not support it.
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Implied promise to pay
An employer that orders work while knowing it will generate additional cost may, in some circumstances, be argued to have promised payment. The argument depends on the surrounding words and conduct, including whether both sides understood that the work was outside the original scope and would not be free. It is not enough simply to show that the employer saw or accepted the work.
Keenan’s article puts the point expressly: “Acceptance of work instructed orally by an architect is not on its own sufficient to show an implied promise to pay.” Acceptance can be evidence, but it does not replace proof of a promise or of the person’s authority to make one.
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Collateral contract
A collateral contract is a separate agreement said to sit alongside the main construction contract. It may be arguable where the work falls outside the variation clause, is requested after completion, or is so different from the contracted work that it is not realistically an adjustment to the original scope. The contractor would need to establish the relevant promise, consideration and intention on the facts; merely labelling work “extra” does not create a collateral contract.
Waiver
Waiver involves giving up, or choosing not to insist on, a contractual right. A contractor relying on waiver must show the employer’s conduct and the contractor’s reliance where reliance is required. Relevant questions include whether the employer knew the contractual formality, what it did after learning that the work was proceeding, and whether the contract says that a waiver is effective only if recorded in writing. A casual failure to object is not automatically a waiver.
Who gave the instruction?
Authority can decide the claim before valuation is even considered. An architect, contract administrator, site manager or other agent may be involved in directing the work but may not have authority to bind the employer to extra payment. The contractor should identify the contractual role of the speaker and any limits on that role.
The fact that an architect instructed the work orally and the employer later accepted it does not, by itself, establish an implied promise to pay. If the contractor relies on an exception to the written-instruction procedure, it may have to prove that the employer agreed to the change or that the agent had actual or apparent authority to make the commitment. Internal instructions, delegations and the employer’s response to earlier directions can all be relevant evidence.
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How to document an oral instruction
The safest practical response is to create a contemporaneous written record, while making clear that the record is a confirmation of what was said rather than an attempt to rewrite the contract.
- Record the instruction promptly. State the date, location or communication, the people present, and the exact change requested.
- Identify the instructor and authority. Name the architect, contract administrator, employer representative or other person who gave the direction, and refer to the contractual role or delegation if known.
- Describe the scope. Separate additions, omissions, substitutions and changed sequencing. Attach drawings, specifications, photographs or marked-up documents that remove ambiguity.
- State the anticipated effects. Give the best available estimate of additional cost, savings, delay, disruption and any effect on key completion dates. Mark estimates as provisional where measurement is not yet possible.
- Ask for the contractual response. Request the written instruction, confirmation or objection required by the clause, and identify any objection period or deadline.
- Reserve the position where necessary. If work must proceed to protect the programme or site, say that it is being carried out on the basis that the change will be valued and that the contractor’s rights are reserved, subject to the contract’s wording.
- Keep the evidence together. Preserve the confirmation, replies, site records, labour and plant records, delivery tickets, photographs, revised drawings and programme updates so that the instruction and its consequences can be tested later.
This is sensible risk control drawn from the issues in Keenan’s account, not a universal statutory checklist. The contract may prescribe different notices, forms or timing.
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- The exact clause: Does it require writing, permit oral directions, allow contractor confirmation, or provide retrospective confirmation?
- Timing: When was the instruction given, when did the contractor confirm it, and had any objection period expired before work proceeded?
- Scope: Is the work an adjustment to the contracted design, work outside the scope, or a materially different undertaking?
- Authority: What authority did the instructor have, and did the employer know of or approve the direction?
- Knowledge of cost: Did the employer understand that the work would incur extra cost, and was any price or time discussion recorded?
- Conduct after the instruction: Were records requested, payment made, objections raised, or progress accepted with knowledge of the change?
- Reliance and prejudice: Did the contractor commit labour, materials or programme resources because of a representation or because the employer failed to insist on the contractual formality?
- Contractual waiver wording: Does the agreement require a waiver or variation of rights to be in writing?
Worked examples
An oral direction covered by a confirmation mechanism
A contract allows the contractor to confirm an oral instruction and treats it as effective unless the employer objects within the stated period. The contractor sends a same-day email identifying the revised works and estimated cost, and the employer does not object within that period. The contractor’s case is materially stronger because it followed the agreed process; valuation and any time entitlement still require proof under the contract.
A written-only clause and urgent work
A site representative tells the contractor to remove and rebuild work immediately, but the contract says only written instructions are valid. The contractor proceeds without a written instruction. The employer may argue that there was no contractual variation and that the work was unauthorised. The contractor’s prospects will turn on the representative’s authority, the parties’ communications, any emergency provisions and whether an alternative payment argument can be proved.
Work outside the original scope
After the contracted work is complete, the employer asks the contractor to carry out a separate package that is not contemplated by the variation clause. A collateral-contract argument may be considered, but it requires evidence of a separate promise and agreement; the label “variation” does not decide the issue.
Publication context and limits of the explanation
The underlying commentary is Katherine Keenan’s practical article for Building. The Building page carries the date 22 July 2020. Charles Russell Speechlys’ Winter 2020 Construct.Law publication states that it was first published in Building on 5 March 2020. Those are different publication references, not competing dates for a current legal rule.
The article describes arguments that may arise under particular contracts; it is not a survey of present-day law across every standard form or jurisdiction. A live payment or variation dispute should be assessed against the signed contract, governing law, current authorities, notices and evidence by a suitably qualified construction lawyer.
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