Recitals in construction contracts

Recitals are the introductory statements in a written agreement or deed, generally appearing at the beginning, and similar to the preamble. They set out a précis of the parties' intentions; what the contract is for, who the parties are and so on. Recitals usually appear in documents after the words 'whereas' and before the words 'now it is hereby agreed as follows', the latter phrase introducing the operative or main conditions of the agreement.

The recitals are not intended to include the rights or obligations of the parties, but are scene-setting, or explanatory in nature. However, care should be taken when drafting recitals, as, if there is any ambiguity or uncertainty arising from the operative or main conditions of the agreement the courts may look at the recitals in order to establish the intentions of the parties to the agreement.

It is also important to note that the intentions of the parties as evinced by the recitals may be relevant to the court's consideration of whether or not to imply a term into the agreement.

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