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Looking at some common legal claims in construction litigation, P.2

Last time, we mentioned that one possible defense to breach of contract claims in construction litigation is impossibility or impracticability. Another potential defense for contractors in breach of contract claims is substantial completion, which refers to cases where the contractor didn’t perform every single detail of the contract, but performed so substantially on the contract that it would be unreasonable to deny the contractor full contract price.

In such cases, the job performed by the contractor is essentially equivalent to what was laid out in the contract. This defense is not available, though, to contractors who willfully breach the terms of the contract. Another important point is that general contractors may potentially be held liable for subcontractors’ failure to complete all terms of the contract. 

Another type of claim that can arise in construction disputes is breach of warranty. There is a difference between express and implied warranties, the former indicating warranties which are detailed in the contract and the latter indicated those which are recognized by the courts in certain circumstances. Express warranties include the promise to use specific types of materials in a project, which can be an important issue in high-end projects.

Implied warranties include the implied warranty of fitness, which is a contractor’s implied promise to meet generally accepted standards of workmanship and to provide materials that are similar to those specified in the contract. Other implied warranties are: the warranty of workmanlike performance and the warranty of habitability. Warranties may be disclaimed, limited, or modified, but there is a right and a wrong way to go about these agreements, and it is important to work with an experienced advocate to ensure the enforceability of any agreements reached. 

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