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You know what lawyers are like - asking them if it is a good idea to do construction work without a contract is like asking your mother for sweets for dinner. You already know the answer.

To a contractor: "No, of course not. You'll have no idea what you are entitled to receive or when. Additional claims for delay and disruption will be non-starters. We do a lot of work for contractors, here's my card."

To a developer: "No, of course not. You'll have no control over the quality or the management of the work. You will have no remedy for late or defective work as there will be no programme or quality duties and, worst of all, you will have no idea how much you have to pay. We do a lot of work for developers, here's my card."

These responses are based on a traditional view that, without a contract, everything is up for grabs. The only safety net for those outside the refuge of a contract is the law of restitution, or the removal of unjust enrichment of one party by the other. Quantum meruit – or fair reward – requires compensation that reflects the value of the work.

In fact, this traditional view is being subtly altered. The lines between contract and no-contract situations has blurred in a series of cases, most recently Birse Construction vs St David and Serck Controls vs Drake & Scull Engineering.

Let's consider the traditional view and possible arguments.

Price for the job is unknown: Maybe not. Fair reward can be a reasonable sum based on cost plus profit, rather than value. In Birse it was also suggested that tender prices could be examined and might reasonably set the upper limit for the contractor's entitlement. This approach seeks to identify what the parties would have agreed.

No obligation as to time: Yes, there is – at least the obligation to complete in a reasonable period, which is similar to the implied obligation where there is a contract. It was suggested in Serck that in complex projects – which can mean just about all of them – there can be duties to co-operate with efficient working practices, not to interfere with other trades and perhaps even to comply with health and safety directions. As compliance with this would require an understanding of the programme, it starts to look very like standard contractual obligations to proceed regularly and diligently, to co-ordinate and to submit to project management.

No remedy for late or defective work: The traditional view of restitution already contains a built-in remedy for poor or incomplete work because such work is of less value to the employer. But where the valuation is "cost plus", a contractual-type approach to defects or inefficiencies is appearing. In Serck, it was contemplated that an employer might make cross-claims for remedial work and payments to other delayed or disrupted contractors. It is even suggested in Birse that the rate of any liquidated damages negotiated could be a benchmark for such claims.

No loss and expense: There could be. It was suggested in Serck that a quantum meruit assessment could take into account site conditions or other circumstances the work was carried out under, including the employer's actions.

Admittedly, these are selected comments from judgements that included questions that were, perhaps, not expressly answered. There are also some points of conflict in the judgments. However, the courts appear willing to take a contractual line, even to the extent of examining "agreed elements" where no contract has been negotiated. In short, the basic tenet that a court will not make a contract where the parties have failed to do so themselves is in danger.

Interesting questions arise. How do you stay out of anything that could be perceived as contractual agreement while in negotiations? Should you state at each turn that nothing is agreed until everything is agreed?

The problem with courts making up contracts is that they cannot complete the job and will not create the commercial balance the parties failed to find themselves. They might pick out only some negotiation points and get a partial view.

The law is in flux in this area at the moment but, in the meantime, it seems that your non-contract may be worth a bit more than the paper it is not written on.