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Volume 5 - Number 15 | April 9, 2007

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  EDITOR'S NOTES | Issue 5-15
Hippocrates said, “The chief virtue that language can have is clearness.” Language confusion and a lack of “clearness” account for much of the world’s misunderstandings, both in life and in business. The construction industry is obviously not exempt from this. Else, many claims might be avoided.

Language is at the forefront of this week’s cases. In the first case, plainly written instructions on a bid quotation override standard industry procedures and assumptions. The second case somewhat counters that legal logic—what’s written in the contract isn’t necessarily as important as what actually happens on the project. In that case, it’s a battle of semantics over who is actually the contractor.

This week’s final case calls into question the meaning of contract language. Can a contractor be liable for a subcontractor’s jobsite safety practices if the prime contract expressly states that the prime shall have “complete control of the premises”?

We leave you this week with this final thought by Roman rhetorician Quintilian: “One should aim not at being possible to understand, but at being impossible to misunderstand.”
  BIDDER COULD NOT RELY ON SUBCONTRACTOR PRICE QUOTATION
The language in a subcontractor’s bid quotation trumps standard industry practices. If the bid expressly states that its price is not firm, the prime contractor cannot hold the sub liable if the price changes.
  DEVELOPER WAS ENTITLED TO “OWNER-BUILDER” LICENSING EXEMPTION
A contract may name the project owner as the contractor and the builder as a subcontractor without requiring a contractor’s license from the owner. In such cases, the role each party actually performs is more important than its contractual title.
  “CONTROL OF THE PREMISES” DID NOT MAKE PRIME RESPONSIBLE FOR SUB’S SAFETY PRACTICES
An on-the-job injury raises the question of whether a prime contractor is responsible for its subcontractors’ jobsite safety practices. The answer is a conditional yes—only if the prime has the right to control the subs’ means, methods or details of the construction can it then be found liable.