Construction Law Today : Construction Lawyer & Attorney : Joshua Glazov : Design Build Contracts, Construction Bankruptcy

The late Justice Robert H. Jackson suggested that often, the justices don't:

There is no doubt that if there were a super-Supreme Court, a substantial proportion of our reversals of state courts would also be reversed. We are not final because we are infallible, but we are infallible only because we are final.

For more about the U.S. Supreme Court, take a look at SCOTUSblog founded by Tom Goldstein.

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I now often hear sentiments of discontent and alienation.  You may not agree. But I haven't yet heard anyone express it as colorfully as Jonathan Swift almost 300 years ago:

By this means the wealth of a nation, that used to be reckoned by the value of land, is now computed by the rise and fall of stocks: and although the foundation of credit be still the same, and upon a bottom that can never be shaken, and although all interest be duly paid by the public, yet, through the contrivance and cunning of stock-jobbers, there has been brought in such a complication of knavery and cozenage, such a mystery of iniquity, and such an unintelligible jargon of terms to involve it in, as were never known in any other age or country in the world.

                                                                          -- Jonathan Swift
                                                                             The Examiner
                                                                             No. XIII, Thursday, November 2, 1710

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The late California Supreme Court Justice Roger Traynor wrote about contract risk allocation over 60 yeas ago.  Other than my shortening the periods in his prose, this is what he said: 

The purpose of a contract is to place the risks of performance upon the promisor.  And the relation of the parties, terms of the contract, and circumstances surrounding its formation must be examined to determine whether it can be fairly inferred that the risk of of the event that has supervened  to cause alleged frustration was not reasonably foreseeable.  If it was foreseeable, there should should have been provision for it in the contract.  And the absence of such a provision gives rise to the inference that the risk was assumed.

                                                                                  -- Roger Traynor, Lloyd v. Murphy (Cal. 1944)


     

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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.

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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

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