LESSER KNOWN BREACH OF CONTRACT DEFENSES
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awarded to the prevailing party, if you want to recover
such fees from a party; and; (24) prepare a contract
notification checklist, to make sure you do not lose any
rights by failing to act in a timely manner.
C. Definitions
Assignment. The right to transfer to another
person the contract rights of a party to the contract. By
assignment, a contractor may transfer to a bank, factor,
or other creditor the right to receive contract funds.
Many construction contracts permit assignment only
with the consent of the other party to the contract,
Frequently, the contract includes a provision that
allows an owner to assume subcontracts by assignment
upon termination of a general contract,
Condition Precedent. An act or event that must
occur before a right dependent upon it accrues,
Frequently used in the payment context, i.e., the
contractor must perform the work and submit a fully
completed and acceptable payment
application/requisition before its right to be paid
accrues.
Design Specification. Specifications set forth
precise measurements, tolerances, materials, in-
process, and finished product tests, QC measures,
inspection requirements, and other specific information
about how the project or a portion of the project is to
be built, The owner is responsible for the correctness
and adequacy of the design and engineering Compare
with Performance Specification.
Performance Specification. Technical
requirements that set forth the operational
characteristics desired for the work or a portion of the
work. The contractor accepts general responsibility for
product design and engineering and for achievement of
the stated performance requirements.
Differing Site Condition (DSC). An unanticipated
physical condition at the site that differs materially
from those set forth in the contract or ordinarily
encountered in work of the same nature. In federal
construction contracts, DSCs are distinguished as Type
I, subsurface, or latent physical conditions at a
construction site that differ materially from the
conditions indicated in the contract; or Type II,
unknown physical conditions at the site, of an unusual
nature, that differ materially from conditions ordinarily
encountered and generally recognized as inherent in
work of the kind provided for in the contract.
Final Acceptance. The owner's acceptance of the
project from the contractor upon the architect or
engineer's certification that it is complete and in
accordance with the contract requirements. Final
payment usually is what confirms final acceptance
unless otherwise stipulated in the contract.
Final Completion. The time when the contractor
completes the work and fulfills all of the contract
requirements.
Force Majure. A superior or irresistible force,
such as lightning, earthquakes, storms, hurricanes,
flood, sunstroke, and freezing occurs without any
human intervention. Some contracts include war,
governmental action, or labor strikes in their definition
of force majure. Force majure clauses are commonly
used to protect the parties if part of the contract cannot
be performed as a result of causes outside the control
of either party and could not be avoided by the exercise
of due care.
Latent Defect. A hidden defect in materials,
equipment, or the work that a reasonably careful
observation during the performance of the contract or
during any warranty period would not have revealed.
Patent Defect. A defect which is open or obvious
or which the owner should have discovered by
reasonable observation. A patent defect is the
opposite of a latent defect.
Liquidated Damages. Contracts often include
completion dates to which the contractor agrees. In the
event there is a delay in the contractual completion
date, the liquidated damage clause obligates the
contractor to pay the owner a daily rate that
compensates the owner for damages, assuming the
contractor and not the owner caused the delay.
No Damages For Delay. A provision contained in
some contracts prohibiting the contractor (or
subcontractor) from seeking or recovering damages for
delays caused by persons other than the contractor (or
subcontractor). Some states have legislatively banned
the use of no-damages-for-delay clauses in public
contracts, finding them void and against public policy.
Order of Precedence. The order of hierarchy of
various parts of the contract. Commonly defined in the
contract, the order of precedence clause resolves
conflicts and omissions in the contract drawings and
contract documents by defining which part of the
contract controls over another conflicting part.
Spearin Doctrine. The legal theory, first
pronounced in United States v. Spearin, 248 U.S. 132
(1918), imposing responsibility under an implied
warranty theory, on the government that the
specifications it furnishes for construction are suitable
for their intended purpose.
Substantial Completion. The date certified by the
architect when the work or a designated portion thereof
is sufficiently complete, in accordance with the
contract documents, so the owner may occupy or
utilize the work or designated portion thereof for the
use for which it is intended. Some contracts have a
very specific definition of substantial completion and
set out express conditions that the contractor must
satisfy.
Plans. Plans are the drawings that the design
professional has prepared and that are the graphic
expressions of the work that the contractor is to
perform. The plans may be in electronic as well as