Brian Hayes (Dublin South West, Fine Gael) | Oireachtas source

This amendment essentially removes the words "an act of a person other than one of the parties to the construction contract" and replaces them with "the making of a payment by a person who is not a party to the construction contract". Section 3(5) excludes the practice of "pay when paid" clauses in construction contracts; this is a key provision of the legislation. There is a concern that the wording of section 3(5) in the Bill passed by the Seanad, particularly the phrase "an act of", may give rise to a challenge to the practice of certification of payment, which is a key provision in many contracts between a building commissioner and a main contractor and is provided for in section 3(1). Typically, payments under a construction contract between the project commissioner and the main contractor are conditional upon a certificate of payment being issued by the named certifier under the contract. If section 3(5) is not amended, it may give rise to a challenge to any payment where the payment application made by the contractor was reduced by the certifier in line with the terms of the contract. This amendment brings clarity to the practice of certification of payments under a construction contract without diminishing the key intent of section 5(5), which is to outlaw the inclusion of "pay when paid" clauses in construction contracts.