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Posted by mrsgator88 on October 1, 2006, 12:56 am
>
> mrsgator88 wrote:
>> ... its very possible for a contract to very much favor one side and be
>> perfectly legit and enforceable.
>
> Yes, it takes an extreme case usually to actually get it voided for the
> reason of bias alone.
More than extreme IIRC.
>> ... Among other things, I got caught in the
>> vagaries of the payout schedule. It seemed clear when we signed the
>> contract, we'd pay a certain amount as each piece of work was
>> "completed."
>> Since we never defined what "completed" was, the builder got to decide.
> ...
>
> That's perhaps an example of an incomplete or ambiguous contract, or it
> could have been written specifically that way on purpose and got
> through. Was it clear from contract language the builder was the sole
> arbiter of "completed", or did he just assert it?
No it wasn't clear, and he just asserted it.
> And, yes, writing complete (and fair) contracts _is_ difficult which is
> why there are lawyers, amongst other reasons. And, of course, there is
> still the fact that fundamentally, even good contracts are only as good
> as the signatories' willingness to live up to them. If sounds like it
> would have been quite likely in your case even if there were provisions
> for "mutally-agreed completion" the builder may have been one who would
> still have pushed for early payment.
Yes that's true. What would have been better for us would have been a
definition of when a phase was "completed." Like the plumbing for example.
He said it was done when he was finished roughing it in. The inspectors had
almost all of it ripped out and replaced. Some sections had to be replaced
a second time.
> The difficulty in most building or remodeling scenarios is that the
> builder generally starts with a standard contract form that may well be
> (probably is???) at least mildly biased in his favor and the client is
> in the position of having to press for inclusions (or deletions) of
> provisions to more nearly balance it. Most often they don't take the
> time or effort to fully appreciate the necessity of this and may feel
> some pressure to take it as offered because they particularly want the
> specific builder for various reasons and are afraid to risk losing him.
There's also the issue of trust. We didn't feel the need to analyze the
contract language to that degree. And chances are, had we re-worded the
contract, he'd have accepted the changes. When we signed the contract we
never imagined being in an adverserial situation with our builder.
> Other disadvantages include simply not having the expertise to
> recognize potential trouble spots such as the omission of who
> arbitrates in case of dispute or how decisions such as in your example
> are made. Builders with a reputation may have the luxury of being able
> to say "take it or leave it" as they have all the work they can handle
> anyway, so it isn't necessarily a totally level playing field from that
> standpoint, either.
>
There was no arbitration clause in our contract. I would not have accepted
that.
S
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