THE LAW AND CIVIL ENGINEERING – NOVEMBER 2021 NEWSLETTER
There Are Terms in Your Contract That You Cannot See
by Eugene Bass
Written contracts are often very short stating essentially nothing more than the names of the parties, a brief description of the work to be performed and the price. Notwithstanding the brevity of some written contracts, or even the complete absence of any writing in the case of an oral contract, there are many terms and conditions that apply to the contractual relationship. These terms are the implied conditions of the contract.
In general, all things that in law or usage are considered as incidental to a contract, or as necessary to carry it into effect, are implied in the contract. A contract is considered as including not just the terms that have been expressly stated but also those implied provisions indispensable to effectuate the intention of the parties.
Some of the implied terms of construction contracts include the following. The contractor will perform his work in a good and workmanlike manner. There is always a duty to perform the work with reasonable care, skill, reasonable experience and faithfulness. There is an implied warranty that the plans and specifications provided for a project will be workable, correct and sufficient. When information is available to the owner of difficulties likely to be encountered on the job there is an implied condition in the contract that the owner will impart that knowledge, and disclose fully and not mislead the contractor as to conditions by only partial disclosures.
Unless the contract states otherwise, the owner is required to furnish whatever easements, permits and documentation as are necessary for the construction to proceed in an orderly manner.
It is implied that the owner will not hinder, interfere with or delay the contractor’s performance. A party to a construction contract has the obligation not to deprive the other party of the benefits of the contract. There is an implied obligation of good faith and fair dealing between the parties. Where some action is left to the discretion of one of the parties or his agent there is an obligation to exercise the discretion reasonably and in good faith.
There are very important terms implied in all construction contracts which affect the rights and obligations of the parties. Those involved in the construction process should be aware of those terms and conduct themselves accordingly. To avoid conflicts and disputes during construction, the contract should clearly and completely state the rights and obligations of the parties. Say what it is and say what it isn’t is not a bad policy and contributes toward clarity.
This article is intended only to provide general information regarding legal issues. It is not to be relied upon for legal advice. Contact your attorney for advise and guidance on general and specific legal issues.