The Rascality Rule – An Eyebrow Raising Rule – in New Hampshire

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One of the things I like about being a lawyer is that I’m always learning something new. Like the “Rascality Rule.”Little Rascals

Until today, I had no idea there was such a rule. But apparently there is, at least in New Hampshire, and I had to share it with you, particularly since it was discussed in a construction case.

In Axenics, Inc. v. Turner Construction Company, Case No. 2011-219 (March 13, 2013), the New Hampshire Supreme Court found that Turner Construction Company (“Turner”), by requiring its subcontractor Axenics, Inc. (“Axenics”) perform extra work to complete a project on time, and then requiring the subcontractor to submit documentation supporting its claim for this extra work, did not engage in conduct that “rose to the level of rascality required under” New Hampshire law.

Under the Rascality Rule, explained the Court, “the objectionable conduct must attain a level of rascality that would raise an eyebrow of someone inured to the rough and tumble world of commerce.” And, concluded the Court, while Turner knew Axenics’ claim had value, by merely requesting back-up documentation, Turner’s conduct “in the context of the ‘rough and tumble’ construction business” did not “r[i]se to the level of rascality required under” New Hampshire law.

The Rascality Rule sounds very similar to how I intervene in fights between my kids. If one of them has done something that causes me to raise my eyebrow, they know they’ve crossed the line (even in the context of the “rough and tumble” world of sibling rivalries) and justice will be meted out.

So, remember the Rascality Rule folks. It applies to both construction and non-construction cases alike, and has broad application even outside the state of New Hampshire.