A client stopped by for some help with a contract. And, to this client’s credit, they knew they were dealing with a chopped up AIA contract that had so many changes, it was hard to tell what was in the original contract and what was a revision.
Construction contracts, with their indemnity, subrogation, pay-if-paid clauses, can be so complicated. But, one advantage to the forms, like those from the AIA, Consencus, or EJCDC, is that you should have consistent language throughout. This is not to say that the language is good for you or your portion of the project, but indemnity referred to in one paragraph will probably be consistent with indemnity referred to later on.
But, when one party starts to delete and change the language in one paragraph, is that change consistently tracked through the rest of the contract? Chances are, no. And, that was certainly the situation this week. The changes on the second page did not track through to the fourth, fifth or sixth page.
To make matters worse, it’s not clear how the changes would be interpreted by the courts. Sure, I have my ideas, drawn from years of practice and experience. But, it’s not the same as being able to cite to a case that has addressed the very language one party may want to amend.
Construction contracts can be very complicated and knowing when to get help cannot be overstated. If you find yourself wondering what the heck the general contractor means by his home grown indemnity clause, seek counsel that can help figure it out. Otherwise, you may be on a wild ride when the judge has to interpret the contract.