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Contracts which became impossible in Hungarian construction

In construction industry contracts cannot be performed according to the intentions of the parties in each case. It means that the parties cannot fulfil their duties. In the practice of our Legal Partnership we usually meet cases in which the performance of the contracts became impossible or one of the parties referred to it. We can talk about the impossibility of the performance if the reason of the impossibility has been originated after the conclusion of the contract. According to Hungarian law and Hungarian judicial practice, the impossibility of performance can be physical impossibility, legal impossibility or impossibility of the interests. The latter type of impossibility of performance is accepted only in very special cases by Hungarian courts.

If performance has become impossible for a reason attributable to one of the parties, the other party shall be relieved from the obligation of contractual performance and may demand damages for the loss caused by non-performance of an obligation. If performance has become impossible for a reason attributable to both parties, the contract shall be terminated and the parties may demand damages from each other in the proportion of their interaction. According to the general rule of the Hungarian Civil Code, if performance has become impossible for a reason that cannot be attributed to either of the parties, the monetary value of the services provided before the time when the contract was terminated shall be compensated. It is important to know that the last general rules cannot be applied in case of contracts for professional services.

In case of contracts for professional services special rules shall be applied and in this case also other circumstances shall be respected in connection with the application of the legal consequences of impossibility of contractual performance. According to these special rules, if performance has become impossible for a reason that cannot be attributed to either party and the cause of impossibility has occurred within the control of the contractor, he shall not be entitled to demand remuneration. If the cause of impossibility has occurred within the control of customer, the contractor shall be entitled to remuneration, but the customer shall be entitled to deduct the amount that the contractor had saved or could, without great difficulty, have earned elsewhere in the time gained. If the cause of impossibility has occurred within or beyond the control of both parties, the contractor shall be entitled to a proportionate amount of the remuneration for the work done and for his expenses.

According to our experience, if we meet an impossibility of performance in a construction contract which cannot be attributed to either of the parties, we have to consider circumspectly within which party’s control the impossibility of performance has occurred. Finally, I would like to remark that the category “within the control of the party” and legal consequences of the impossibility of performance were known and applied also by Roman Law.

Dr. Tamás BALÁZS
Attorney at law
Managing Partner

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TSF Consultants appoint experienced new advisor

TSF Consultants, the UK’s leading provider of independent mental capacity assessments to the legal sector, are pleased to announce the appointment of their new advisor.

With over 25 years of key involvement at Board Level, Jeremy Nottingham is set to bring extensive knowledge and expertise to the role, with his past experience spanning a range of different industries.

Working in multiple sectors has enabled Jeremy to build a diverse awareness and understanding of different business environments, allowing him to provide a fresh practical perspective within the context of TSF. Throughout his career, Jeremy has set out to prioritise the specific vision of the company he supports, bringing strategic oversight across the range of core business functions.

Jeremy has a particularly high level of experience working with and developing SMEs, having played a key role as an early stage director and founder of companies ranked within the top 20 of the Sunday Times Fastest Growing Privately Owned UK Company List.

In addition to his comprehensive business experience, Jeremy is a founder of a charity, as well as an ambassador and trustee for charities operating in both the UK and sub Saharan Africa.

Jeremy joins TSF at a key point of expansion; as well as supporting the direction of development, his appointment coincides with ambitious plans to scale the business, whilst solidifying the company’s reputation for both care and quality.

He is also no stranger to TSF; having coached and mentored founder Tim Farmer, Jeremy has a core understanding of the business which is set to underpin his vision for progress.

Commenting on the appointment, Founder of TSF Consultants Tim Farmer said: “It’s been great to have been coached by Jeremy for the last 4 years, his knowledge and insight into building and sustaining small and medium-sized companies has been invaluable. His ethos matches TSF’s exactly and to now have him join as an advisor at this exciting stage in our growth, provides great confidence for the future.”

Jeremy said: “I have admired the ethos of TSF from the moment I first met Tim. I love their compassion and concern for clients, deep expertise and insight which they bring to their work and their commitment to growing and develop the TSF team, both frontline and support. It’s an exciting time to be joining the TSF team and I look forward to supporting the business to grow ambitiously and sustainably, set and raise quality standards across the industry, be innovative in our service delivery, whilst retaining the ethos that puts the client front and centre of our efforts.”

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Repeated success for ‘game- changing’ legal consultants

Multi-award winning TSF Consultants are thrilled to announce that they have been awarded yet again for their commitment to the legal industry ensuring that their Mental Capacity assessments are the very best in field.

Awarded with ‘Niche Legal Consultancy Firm of the Year (Mental Capacity Assessments)’ by ACQ5 Law Awards 2018, only serves to further galvanise TSF Consultants as being recognised leaders in the provision of mental capacity assessments.

Why TSF?

Established in 2011, TSF is built upon the holistic core values that every person has the right to achieve all they can mentally, physically, spiritually and culturally. Through values of empathy, compassion and empowerment TSF ensure that everyone is treated with respect and dignity and supported to achieve their optimum.

Founder, Tim Farmer has over 25 years’ experience of working with individuals with reduced capacity, is a multi-award-winning expert witness and best-selling author. He is the creator of the CMSL principle for setting the Threshold of Understanding when assessing mental capacity, a committed member of Baroness Finlay’s leadership team for the National Mental Capacity Forum and was a contributor to the 2017 Parliamentary Review. In conjunction with this notable win, Tim himself was also named as ACQ5’s UK Gamechanger of the Year 2018.

These values and high standards have seen TSF carry out hundreds of assessments each year across England and Wales and internationally for those clients with UK based assets. They are also the reason TSF is considered the UK’s leader in the field of mental capacity assessments.

As innovators TSF has established a number of unique processes that have enabled them to identify the threshold of understanding and associated question set for every decision they are asked to assess.

In addition, the South West based team have also established their own internal quality governance team whose sole purpose is to ensure assessments and outcomes are of the highest quality and will stand up to legal challenge, the team are passionate about providing the most robust reports in the industry.

How do they do it?

TSF Consultants have a network of expert assessors across the UK, all of whom are health or social care professionals, who are recognised by the Court of Protection and Office of Public Guardian. As professionals in their field they adhere to the highest ethical standards, ensure they keep abreast of case law innovations and legislative guidance. All the team are dedicated to upholding the rights of the individual, ensuring clients remain at the centre of the process using our robust referral procedure, tailored communication methods and home visits.

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TSF Consultants win coveted title at the 2018 Lawyer Monthly awards

TSF Consultants are delighted to announce that they have achieved the Lawyer Monthly Mental Capacity Assessor – Firm of the Year Award for 2018.

For the second year running, the leading providers of mental capacity assessments have taken home the title at the Lawyer Monthly Expert Witness Awards, which celebrates the successes of Expert Witnesses in the legal profession across the globe.

Established in 2011, it wasn’t long before TSF was firmly established within the industry; having quickly built a strong reputation, their prominence in the marketplace is a clear reflection of the expertise and quality which underpins the service they provide.

Now spanning the UK, TSF’s extensive network of experts has significant growth over the past seven years, with the progress driven by founder Tim Farmer. A best-selling author on the assessment of capacity, Tim is acknowledged as one of the UK’s leading experts in this area and was also named as Expert Witness (Mental Capacity) in 2016.

As well as demonstrating the trust and confidence clients place in the services of TSF, their achievement of the Award for the second consecutive year demonstrates their unique positioning and key legal awareness – a feat that’s not easily achieved in an industry which is so complex.

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How long does a mental capacity assessment take?

Mental Capacity Assessors, TSF Consultants are often asked how long it takes ‘to do’ a mental capacity assessment. The reality is a lot longer than most people think. When people think of a mental capacity assessment, they tend to think solely of the face to face element. In practice this is just one of 3 phases involved in the actual assessment process

The 3 phases of a mental capacity assessment

Any assessment of mental capacity involves three key stages, Phase 1 information gathering, Phase 2 the face to face assessment and Phase 3 the holistic analysis stage. All of these stages are fluidly interlinked and vital to achieving the right outcome. Failure to properly execute just one of the stages is likely to result in a less than robust outcome.

Phase 1 – Information gathering

One of the most common mistakes that practitioners make when assessing mental capacity is that they fail to properly validate the information they are given prior to the face to face assessment. By gathering the correct information at the start of an assessment you greatly reduce the risk of obtaining the wrong outcome. Depending on the complexity of the decision being assessed this process usually takes between one and two hours.

TSF have worked hard to ensure this element of the process is as robust and easy for the client as possible. Their specialist Client Liaison Officers know exactly what information is required for each type of decision being assessed. Working with the client they will gather this information to ensure our assessors have all the necessary information prior to the assessment.

Phase 2 – The face to face assessment

This is the phase that most people think about when they use the term ‘mental capacity assessment’. The length of time that this takes can be affected by a number of different factors such as the number of decisions being assessed, the complexity of the decisions being assessed and the level of support an individual needs to participate in the assessment which includes communication, emotional, spiritual and cultural needs. You should expect this phase to last, on average between an hour and a half and two hours.

TSF realise that this element of the assessment is crucial in terms of engagement with the individual and ensuring all the right information is gathered to reach the correct outcome. Spending to little time on this element is likely to lead to insufficient information to reach the correct outcome. Conversely, spending too long can result in the individual becoming unnecessarily fatigued and disengaged from the process, which can also lead to the wrong outcome.

Phase 3 – The Holistic Analysis Stage

This is often considered the ‘hidden’ stage of an assessment. Once the face to face assessment has taken place it is essential that the assessor has time to holistically reflect upon their outcomes. Ideally at this stage they should be challenged to consider their outcomes from every angle to ensure that their analysis and conclusion are holistically robust and will stand up to scrutiny from legal challenge. This stage also consist of writing up any report and can take up to seven hours in total, depending on the complexity of the assessment.

TSF were the first to introduce an internal checking system for our reports – something that is fast becoming accepted as best practice in the industry. Unlike others, we have a separate team whose sole responsibility is to challenge the reports and rationale of our assessors to ensure that their outcomes are holistically considered and are as robust as they possibly can be.