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Bar Exam Toolbox Podcast Episode 119: Listen and Learn -- Anticipatory Repudiation (Contracts)
Bar Exam Toolbox Podcast Episode 95: Listen and Learn -- Promissory Estoppel
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Considering all that can go wrong on a construction site, it can seem like a miracle that anything is ever built. Construction projects can be massive undertakings, often with millions of dollars at stake, requiring the...more
A pair of cases in the past two years have come to opposite conclusions about whether general damages can be capped by contract provisions for liquidated damages. Liquidated damages clauses are a common feature of...more
A federal court in Louisiana last week refused to enforce a limitation of liability provision included in an extra work order holding that it was trumped by the parties’ subcontract (see Planet Construction v. Gemini...more
Originally published by the Daily Journal of Commerce on May 18, 2023. You will often see in construction contracts terms directing the contractor to use “best efforts” or “reasonable efforts” or “commercially reasonable...more
When reviewing a proposed design or construction contract, the responding party will often do a cursory check to see whether the contract proposes arbitration or litigation for dispute resolution. So long as the proposed...more
On November 7, 2022, the United States District Court for the District of Virginia decided the case of Harrell v. Deluca, 1:20-cv-00087, which centered around a home builder and contractor who failed to successfully deliver...more
Those of us of a certain age recall the phrase "reading the Riot Act" as a stern warning or dressing down. Someone chewed out by a parent or a boss at work would be said to have been "read the Riot Act." The history and...more
The purpose of a liquidated damages provision in a construction contract is to establish in advance a fair amount of compensation to the injured party for a breach of contract to avoid spending time and money fighting over...more
In BCD Associates., LLC v. Crown Bank, CA No. N15c-11-062 (Super. Ct. Del, May 2, 2022), the trial court found that when a bank pays a contractor directly, it can create a legally binding relationship subject to the terms of...more
In Hanuman Chalisa, LLC. v. BoMar Contracting, Inc. [1] the parties executed an agreement for the construction of a hotel in Columbus, Ohio. The contract included a guaranteed maximum price (“GMP”) of $5,172,701 and a “Cost...more
The September 2020 decision by the Scottish Court of Session in Van Oord UK v. Dragados UK [2020] CSOH 87, which has now been appealed. The dispute centred on the ability of Aberdeen Harbour expansion main contractor Dragados...more
The Philippines construction industry is expected to grow with the introduction of the "Build, Build, Build" initiative and the amendment of a number of laws that would loosen restrictions on foreign investment. The...more
The construction industry in Indonesia has long been considered the backbone of the country's economic and social development, and regulations are being continuously amended to ease complexity and expedite processes for...more
In recent years, the construction industry in India has emerged as an attractive destination for foreign investment. To support this heightened interest, the government of India has enacted an attractive foreign direct...more
Australia is a highly advanced mixed economy, but investors – often drawn to the country's economic stability and resilience – should be aware of certain clauses that typically appear in construction contracts. Australia...more
What’s a goocher? If you saw the movie, Stand By Me, then you know exactly what I mean. And there are times when parties to a construction contract face a goocher. ...more
Construction contracts may be priced in a number of ways. For most contracts, even those which are "fixed price", there is usually scope for cost/price variability. Four cases from December 2020 highlight some of the...more
On October 15, 2020, in EMTA Insaat Taahhut ve Ticaret A.S. v. Cosmopolitan Incorporated, a federal district court held that the federal Prompt Pay Act (PPA) (31 U.S.C. §§ 3901, et al.) does not create a private right of...more
Liquidated damages are a sum specified in a contract as the measure of recovery in the event of a breach of the contract. Liquidated damages provisions are common in construction contracts to guard against damages that the...more
Pacta sunt servanda, i.e., agreements must be kept. This applies in both good economies and bad. Companies considering a modification of their business operations to offset lower revenue must be mindful of existing...more
From time to time, those seminal cases we all studied during the early parts of our career pop up in practice. We’re all familiar with them: the snail in the bottle in Donoghue v Stevenson; the spurious sounding flu remedy in...more
P.A.L. Environmental Safety Corp. v. North American Dismantling Corp. Et Al., No. 19-11630, 2020 BL 198779 (E.D. Mich. May 28, 2020) - A Michigan federal court partially granted Consumers Energy Company’s (“CEC”) motion to...more
Most parties on a construction project know that a liquidated damage may be assessed for each day of the delay past a contract completion date. However, in infrastructure and highway contracts, there are many different events...more
A subcontractor has liened the property although the owner has paid in full for its work. The general contractor has disappeared. What should an owner do next? And will its attorneys’ fees be recoverable?...more
Chinese Hosp. Ass’n v. Jacobs Eng’g Grp., Inc., 2019 BL 330340, 2 (N.D. Cal. Sept. 03, 2019) - This case arises out of the alleged breach of contract and defective design for the construction of a new hospital in San...more