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Oliver Wendell Holmes Quote On Contracts, Obligations, And Damages

Posted on June 5, 2009 by Joshua Glazov

I often get questions about whether someone must perform under a construction contract or an architects agreement, and what happens if they don't. Will a judge, or a sheriff sent by a judge compel them?

Over 110 years ago the late Justice Oliver Wendell Holmes gave the best answer I've seen in his article The Path of the Law:

Nowhere is the confusion between moral and legal ideas more manifest than in the law of contract...The duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it - and nothing else.

The common law Justice Holmes refers to still holds as true as much today as it did in 1897. There's some exceptions, but I've yet to see one in the case of a construction contract. Odds are you won't either.

Tags: Damages (General), Quotes

Quote On Construction Contracts, Damages, and Claims

Posted on May 23, 2009 by Joshua Glazov

While researching damages for breach of a construction contract yesterday morning, I saw the paragraph below in Construction Litigation, published by the Illinois Institute for Continuing Legal Education. I showed it to a colleague. He though it hit the mark. So did I. So here it is to see if you agree with us......

[Regarding damages] it should be noted at the outset that nothing is of greater value or greater detriment in litigating such issues than a well-drafted construction contract. Too often the parties use a standard American Institute of Architects form, ignoring the fact that such forms are created by architects and are designed to shield the architect from responsibility and spread such liability elsewhere. The fact that the preprinted form looks authoritative and reduces the work necessary to create an agreement should never induce the owner or the contractor to use the form as it stands. Certainly, it provides a starting point, but for the owner or contractor, it should be nothing more than that. An attorney representing the owner or the contractor should amend, extend, curtail, eliminate, or add to such a form until the client's interests are properly protected.

- - Lorence H. Slutzky