By Lynn Pearcey, MBA, Copywriter, AIA Contract Documents
May 24, 2023
In a perfect world, every construction project would run smoothly and according to plan. There would be no hiccups or surprises, no overruns, or hidden costs. The weather would hold up, and every facet of the project would be a breeze from beginning to end. But unfortunately, we don’t live in a perfect world, and nowhere is this fact truer than in the wonderful world of construction.
Things happen on a construction project; sometimes, those things can result in one party or parties choosing to not honor their end of an agreement. When this position is taken, you have what is known as a Breach of Contract. Breaches can occur in written and oral agreements and their severity varies. But regardless of the nature of the instance or the number of parties involved, it’s a situation that no one wants to face. No one wants to face them, but breaches are part of the construction mix.
What Determines a Breach?
When one or more parties fails to deliver the services outlined in an agreement, be it verbal or written without a defensible position, a breach of contract has occurred. In construction this could mean:
What are the costs?
Damages for contract breaches vary from project to project unless your agreement has what’s known as a liquidated damages clause. A liquidated damages clause is a provision that requires the breaching party to pay an agreed upon amount to the other party as compensation for their failure to comply.
For example, if you’ve signed an agreement containing a liquidated damages clause stipulating that every missed deadline would cost you $100. Each time you miss a deadline, each time you fall into this type of breach, you’ll owe your employer $100. Without a liquidated damages clause, damages are calculated as the difference between the value expected and the value received by the non-breaching party.
Other costs include the following:
Remedies for Breaches
The contract is in breach, so where do you go from here? Well, there are several different remedies for a breach including the following:
Contract breaches happen, but it doesn’t always have to be a battle. If you find yourself on either end of a breach, do your best to settle it amicably without outside intervention. Working it out among parties saves you unwanted legal fees and associated costs. More importantly, handling a breach inside can also salvage a relationship. Relationships drive every sector of the economy, including construction, and building sustainable linkages is an integral part of your success.
Remember, the construction world is not a perfect one, and from time to time, disagreements — breaches — are bound to arise. React to and plan for them accordingly, but always from a position of logic and considering ramifications, both now and, more importantly, well into the future.
To learn more about how AIA Contract Documents can help you with your business, visit https://aiacontracts.com/.
AIA Contract Documents has provided this article for general informational purposes only. The information provided is not legal opinion or legal advice and does not create an attorney-client relationship of any kind. This article is also not intended to provide guidance as to how project parties should interpret their specific contracts or resolve contract disputes, as those decisions will need to be made in consultation with legal counsel, insurance counsel, and other professionals, and based upon a multitude of factors.