In-House Brief: Incorrect Quantities Under the New UAE Civil Code: Who Carries the Risk
Professor Indrawansa Samaratunga
Steven Hunt of C&IDS
21 October 2026
Every Bill of Quantities is an estimate, and every estimate is wrong to some degree. The question is who pays when the work measured on site departs from the bill.
The UAE’s new Civil Transactions Law, in force since 1 June 2026, answers that question in Article 828, for contracts priced on a bill at unit rates, and Article 829, for lump sum contracts.¹ For the re-measured contractor, the new law is more demanding than the old. Notice is now required of any excess over the bill short of an onerous one, and a contractor that fails to give it loses the right to be paid for the excess. This paper explains what is measured, when notice is required and whether the FIDIC Red Book changes the position. It follows our earlier paper on price fluctuation, and a companion Practice Note sets out the practical steps.
One bill, alternative functions
Under the Red Book in its standard form, the bill quantities are estimates (Sub-Clause 14.1(c)), the contractor is paid for the actual quantity at the bill rates (Clause 12), and a change in quantity is not, by itself, a Variation (Sub-Clause 13.1). The employer carries the risk that the bill is wrong.
Where the form is converted into a lump sum contract, Sub-Clause 14.1 is amended so that the Accepted Contract Amount is paid as a lump sum, and Clause 12 is confined to valuing Variations, as Sub-Clause 13.3 requires. The contractor must build the scope shown on the Drawings and described in the Specification for the lump sum and carries the risk that the bill is wrong.
The old and the new Article
Article 886 of the old Code required a contractor working to a unit rate estimate to notify the employer immediately where the agreed design could not be carried out without exceeding the estimate appreciably (mujāwaza maḥsūsa, مجاوزة محسوسة), stating the increase in price expected. Without notice, it lost the right to recover the expenses exceeding the value of the estimate. That was the whole excess over the estimate, not only the part above the appreciable level, although an excess that was not appreciable needed no notice at all. Where the excess was serious (jasīma, جسيمة), the employer could withdraw and pay for the work done.² The provision followed Article 657 of the Egyptian Civil Code.³
Article 828(1) of the new Code reads:
“If the contract is concluded pursuant to a bill of quantities (BOQ) calculated on a unit-price basis, and it becomes apparent during the course of the work that, in order to execute the agreed design, it is necessary to exceed the estimated bill of quantities to a non-burdensome excess, the contractor shall notify the employer thereof, stating the expected increase in the consideration. If the contractor fails to do so, their right to recover the expenses exceeding the value of the estimated bill of quantities shall lapse.”¹
The Arabic text makes three changes and retains the forfeiture provision. Notice is required of an excess that is not onerous (ghayr murhiqa, غير مرهقة), and the word maḥsūsa (محسوسة) has gone, so the excess need no longer be appreciable. The word “immediately” has gone, and no period is stated. The higher threshold is an onerous excess (murhiqa, مرهقة) and on an onerous excess the employer may now either withdraw from the contract and stop execution without delay, paying for completed work valued in accordance with the contract terms, or request the contractor to continue execution while undertaking to pay the increase. The forfeiture provision for want of notice is retained.
The total value of the measured works
In our view, Article 828 measures the excess against the total estimated value of the agreed works, rather than individual bill items. This reading is supported by the provision as a whole. The forfeiture is measured against “the value of the estimate” (qīmat al-muqāyasa, قيمة المقايسة), and the notice must state the expected increase in the consideration. The employer’s choice under Article 828(2) concerns withdrawal from or continuation of the contract as a whole. Together, these features support assessing the financial effect of the excess against the overall estimate. The singular wording reinforces that reading, but is not conclusive on its own. The Egyptian commentary on Article 657 cited below provides comparative context rather than authority on the UAE provision.⁴
On this interpretation, increases in the value of some bill items are offset by reductions in others when forecasting the final value of the original scope at the applicable bill rates. That avoids treating an increase in one item as an overall excess where the total remains within the estimate. Article 828 does not expressly prescribe this netting exercise; it follows from the total-value interpretation. The comparison concerns the cost of executing the agreed design: Variations changing that design, and separate entitlements for prolongation, disruption, acceleration, price adjustment or value engineering, should therefore be identified separately. On this reading, failure to give the required notice prevents recovery of expenses exceeding the overall estimate for the agreed works. This statutory consequence qualifies the Red Book’s ordinary re-measurement mechanism.
When notice is required
The duty arises when it “becomes apparent during the course of the work” that the bill will be exceeded, and the notice must state the increase “expected”. It is therefore forward-looking: it is given before the excess is incurred, so that the employer can decide whether to proceed. Egyptian courts have described the purpose of the notice as protecting the employer from unanticipated financial obligations.⁴ The size of the excess goes only to the consequences. Where it is not onerous, the employer must pay for it if notice was given. Where it is onerous, the employer may withdraw and stop execution without delay, paying for completed work valued under the contract terms, or request continued execution while undertaking to pay the increase. The Article does not define onerous. The cited commentary discusses increases of more than 10% to 15% of the contract amount in the Egyptian Article 657 context. That comparative discussion should not be treated as a numerical definition of the UAE term “onerous”: Article 828 states no percentage threshold.⁴
Does the Red Book change anything?
The Red Book contains no equivalent notice requirement. The muqāwala provisions are default rules,⁵ and the parties could contract out of the old Code’s price provisions, but only by clearly phrased terms.⁶ The Red Book has no such terms. Its provision for payment on measurement does not take the contract outside Article 828. It is what brings the contract within it, since the Article applies only to contracts priced on a bill at unit rates. Nor does monthly measurement serve as the notice. A payment certificate records the value of work done and shows that the bill has been exceeded only once it has been, by which time the employer’s choice has been lost. Nor does Sub-Clause 12.3, which reviews the rates of individual items and says nothing about the total value of the bill.
The only judicial authority we have found is Egyptian. In Case No. 1164 of Judicial Year 48, decided on 12 March 1984, the Court of Cassation held that an employer could not rely on the absence of notice where the bill itself contemplated an increase in quantities, because the employer could not claim to have been surprised.⁴ That may assist a contractor that can show the employer knew, in time, that the bill would be exceeded. It does not establish that the Red Book displaces the notice. Commentary doubting that a tribunal would apply the old Article rigidly against FIDIC terms accepted that the point was uncertain.⁷ The UAE position remains subject to judicial clarification. In our view, the Red Book does not displace Article 828. Of course, the Red Book form can and often is amended (either in the Particular Conditions or where bespoke conditions have been produced based on it) and may use language that serves to displace the requirement for notice. Any argument that, in its raw form, the Red Book does displace Article 828, carries risk.
What to do during the works
Contract out where possible. The Particular Conditions should either disapply the statutory notice or provide that a stated monthly forecast satisfies it.
Forecast against the bill total. Each month, forecast the final value of the original scope at the bill rates, excluding Variations and claims, and compare it with the value of the bill.
Give notice as soon as an excess is apparent. State in writing that the bill will be exceeded and the expected increase and update the notice as the forecast changes. Monthly measurement is not a substitute.
Ask the employer to confirm. As the forecast approaches a level the employer might regard as onerous, say so expressly and ask for written confirmation that the works are to proceed.
Lump sum contracts
A wrong quantity in the bill does not change the design, so Article 829(1) applies and the contractor bears the cost, as it did under the old Code. Article 828 is confined to unit rate contracts, and Article 829(3) responds to exceptional and general events, which an error in a bill is not. Article 829(2) allows an increase for a change to the design that results from the employer’s fault, or that the employer authorised with an agreed increase. The fault ground is new.⁸ A lump sum contractor can therefore recover for increased quantities only where the design changed after tender, where the change corrected an error in the employer’s design, where the contract makes the bill the basis of the price, or where the lump sum amendments left the measurement provisions in place.
The requirement for an agreed increase is met under the Red Book by the agreed method of valuing Variations in Sub-Clauses 13.3 and 12. It matters where there is no such mechanism, where a contractor that carries out a change without first agreeing its price and the change is not the employer’s fault, risks not being paid under the contract and may be left to a claim in unjust enrichment.
Items missing from the bill
Under a lump sum contract, an omitted item is deemed included in the price. Under a re-measured contract the work must still be done, because the Drawings and Specification prevail over the bill, and the dispute is about payment: a new rate under Sub-Clause 12.3, or inclusion in other rates under Sub-Clause 4.11 and the bill preamble. Either way, the item counts towards any excess over the value of the bill.
Which Code applies
The prevailing view is that contracts concluded before 1 June 2026 remain subject to the old Code,⁸ although there is a contrary suggestion.⁹ On a contract that straddles the date, the safe course is to give notice in any event.
Conclusion
The new Code has not moved the quantity risk. What has changed is the condition attached to re-measurement: Article 828(1) now expressly requires notice of a non-onerous excess over the estimate, without the former “appreciable” qualifier; Article 828(2) addresses onerous excesses. The Red Book does not supply that notice, and there is no authority that it displaces the requirement. As a practical precaution, contractors should give notice of every anticipated overrun, or contract out of the notice requirement where legally permissible.
How to obtain the Practice Note
The companion "Practice Note: Incorrect Quantities Under the New UAE Civil Code" sets out the practical steps for contractors before contract, during the works and when a claim arises. It is available to Steven’s LinkedIn connections. If you are already connected with him, you will find it posted on his profile. If you are not, send him a connection request through his LinkedIn profile and you will secure access to the Note.
C&IDS places fractional in-house construction counsel with contractors, developers and consultants across the GCC, Africa and the UK. If you would like to discuss how a placed counsel could support your team on quantity risk and notice procedures in live projects or tenders, please get in touch at admin@candids.legal.
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Notes
Federal Decree-Law No. 25 of 2025 Promulgating the Civil Transactions Law UAE Ministry of Justice. English quotations are reproduced from the official translation. In Article 828(1), “to a non-burdensome excess” can be read more naturally as “by a non-onerous amount”; مقايسة denotes an estimate or cost estimate, rendered contextually in the quotation as a bill of quantities (BOQ). Arabic terms are from the Arabic text, which is authoritative.
Federal Law No. 5 of 1985 on the Civil Transactions Law, Article 886 Arabic text.
Egyptian Civil Code (Law No. 131 of 1948), Article 657.
The Incompatibility Between the Egyptian Civil Code and FIDIC (CONS) in Addressing Changes in Construction Contract Engineering Research Journal, discussing Article 657 and Court of Cassation Case No. 1164 of Judicial Year 48 (12 March 1984).
Examining the New UAE Civil Code, Part 2: Muqawala Contracts Mayer Brown (3 June 2026).
Legal issues relating to construction contracts in the United Arab Emirates Global Arbitration News (27 November 2017).
Quantity clause needs update Chris Larkin, Brewer Consulting.
The Impact of the New Civil Transactions Law on Construction Contracts in the United Arab Emirates K&L Gates (9 March 2026).
Hardship and Lump-Sum Price Adjustments under the New UAE Civil Code: Articles 224 and 829 Charles Russell Speechlys (2026).
This In-House Brief is published for general information purposes only and does not constitute legal advice. Any translations or explanations of Arabic wording provided by the authors are intended to assist understanding only. The authoritative Arabic text should be consulted.
