They are not the same thing. And confusing the two is one of the more common reasons disputes become harder to resolve than they need to be.
A contractual position is what the contract entitles you to. It is defined by the terms, the notice requirements, the compensation mechanisms. It either exists or it does not, and demonstrating it requires evidence, administration and an understanding of the contract's mechanisms.
A commercial position is what you are willing to accept. It reflects the relationship, the project context, the ongoing programme, and the broader picture. It is a judgement call; one that involves people, not just clauses.
Both are legitimate. But they require different conversations and different decision-makers.
Where the problem starts
The difficulty arises when a commercial decision is dressed as a contractual one.
When a concession is made to preserve a relationship, but recorded as though it was a contractual assessment. When an agreement is reached informally, but the formal record does not reflect it clearly. That creates ambiguity — not about what was agreed, but about why. And ambiguity about intent is often harder to resolve than a straightforward disagreement about entitlement.
Keeping the two tracks distinct
The projects that manage this well are clear about which conversation is happening at any given time. Contractual positions are maintained in writing, even where the commercial approach is more flexible. Commercial decisions are acknowledged as such — understood by both sides, and not left to be reinterpreted later under different pressures.
Keeping those two tracks distinct is not adversarial. It is what allows the commercial relationship to flex without the contractual position quietly eroding beneath it.
Most disputes do not begin with a disagreement about entitlement. They begin with a disagreement about what was previously agreed — and why. That ambiguity is almost always preventable.
Greg O'Connell MCIOB is Managing Director of Vinovius, a specialist consultancy providing commercial and planning expertise to the construction industry.
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