November 29, 2023


Making a New Home

The Dotted Line: 6 ways a construction contract can become unenforceable

6 min read

This attribute is a part of “The Dotted Line” sequence, which requires an in-depth look at the elaborate authorized landscape of the construction marketplace. To see the entire collection, click in this article.

Most contractors are properly knowledgeable that they have to abide by the general performance benchmarks and scope-of-do the job demands in their contracts or likely deal with lawful action. What they could not realize is that there are predicaments that could render their contracts or a part of individuals contracts unenforceable.

In the authorized earth, there are affirmative defenses accessible to someone becoming sued for breach of deal, mentioned legal professional Quinn Murphy with Sandberg Phoenix in St. Louis. If those affirmative defenses are established, he stated, it could mean that the events no for a longer period have an enforceable arrangement.

Quinn Murphy


Contractors should maintain in intellect, even though, that the difficulty of regardless of whether a agreement is unenforceable is a nuanced a person and dependent on the points specific to every single contract, in accordance to lawyer Brian Wolf of Smith, Currie & Hancock LLP in Ft. Lauderdale, Florida. This is why it’s critical to search for authorized counsel when faced with a likely deal issue.

Listed here are some circumstances where by a contract could be rendered unenforceable:

Prior breach of agreement

A prior breach, explained Murphy, is the most popular way contracts or a part thereof are decided to be unenforceable.

“If there has been a prior breach of the contract, the party who breached that deal isn’t going to then get to implement the agreement,” he explained.

Nonpayment is a recurrent illustration of a prior breach, Murphy mentioned. Choose, for instance, a typical contractor that has not compensated a person of its subcontractors according to the conditions of its deal. If that normal contractor terminates the subcontractor and then normally takes the sub to court due to the fact it did not increase manpower to accelerate the timetable when requested, the sub can use the actuality that the standard contractor has not manufactured the required payment as a protection.

“So it is just based mostly all over the standard theory that a celebration that breaches the agreement [first] is not entitled to implement that agreement,” he mentioned.

This strategy can be pretty efficient, Murphy reported, for the reason that judges and juries generally really do not have a wonderful deal of information about the design business and, when discovering fault, will often tumble again on blaming “who did the 1st poor thing.”


Brian Wolf


A agreement can be declared unenforceable if it does not comply with relevant rules, Wolf stated. For instance, states like California and Florida have substantial and demanding licensing laws, and if a contractor requires on a venture without having becoming appropriately certified, the contract is very likely illegal and as a result unenforceable.

“Illegality is pretty much universally recognized as a protection to enforcement of a contract,” Wolf claimed.

For instance, Oceanwide China Holdings just lately accused worldwide developer and general contractor Lendlease of not possessing a legitimate California license throughout its performance on the $1 billion Oceanwide Plaza combined-use undertaking in downtown Los Angeles and asked a court to void a $38.4 million payment awarded by an arbitrator.

Do the job shut down on the task in early 2019 amid promises of a lack of funding on Oceanwide’s portion and failure to pay back contractors. Lendlease explained to Design Dive it had totally complied with all California condition licensing requirements.

The court has not yet dominated on Oceanwide’s movement.


In some cases tied to the situation of legality, Murphy said, are faults. If a contractor, for illustration, is employed to create a $16 million setting up and discovers oil underground after setting up construction, and the environmental authorities prevent the challenge from moving forward at that location, the contractor cannot consider to implement the contract and sue the proprietor for the $16 million, he stated.

“The proprietor of that property could say, ‘No, the total undertaking was based mostly upon the mistake that this was a legal endeavor. And because it is really not a authorized endeavor, I am excused from non-general performance by miscalculation,’” Murphy reported.

Other issues that could end result in a contract or a portion of a deal remaining considered unenforceable once in a while involve components that are declared illegal.

For case in point, Brazilian rosewood has been banned from import into the U.S. considering that 1992. If a development business had been hired to provide cabinetry, desks or something else created of that product, Murphy reported, the owner could not sue the contractor for not giving the solution specified in the agreement.

“You were being each mistaken as to the legality of importing it,” he said.


A contract can conclusion up being unenforceable if a person of the get-togethers manufactured a misrepresentation in the securing of that deal, claimed attorney Barry MacNaughton with Ervin Cohen & Jessup in Los Angeles.

If an electrician, for example, running in California or Florida, which require electricians be licensed, turns out not to be certified going into a job, then it’s a crystal clear misrepresentation on the element of the contractor. Even if the electrician is certified, nevertheless, and does not have the requisite knowledge to accomplish the get the job done in the deal, he claimed, that is a misrepresentation as effectively, but is pretty complicated to prove in court.


Another person who indicators a design deal or any other agreement need to have the capability to do so or else the deal could grow to be unenforceable, MacNaughton stated. It has lengthy been regarded that minors do not have the lawful ability to enter into contractual agreements, but other people today could drop into that category as effectively, these types of as these who are psychologically incapacitated, he claimed.

A additional possible state of affairs in the building marketplace, although, would require anyone who did not talk English, MacNaughton explained, who perhaps is staying manufactured to indication a improve get or other document.

“If you have a Spanish-talking worker at the jobsite, and the proprietor understands he does not discuss English or have the means to comprehend what is getting put in front of him, and the proprietor suggests, ‘Sign this,’” MacNaughton said, “then you do have a lack of capacity protection.”


Coercion can take place when a get together asks that a contractor carry out operate in a condition where the contractor has no preference but to agree, Murphy reported. If a basic contractor, for illustration, knows that a subcontractor has all of its means tied up in a undertaking and does not have any other liquidity to enable fund its functions, he stated, it could be coercion if the normal contractor tells the subcontractor it will not be paid for function now performed unless of course it agrees to commit to further operate as nicely.

One more example of coercion involves liquidated damages. If a subcontractor is offering a very important provider or content, knows that the basic contractor is subject to liquidated damages if the job falls behind and employs that as leverage to drive the basic contractor to approve a alter for more dollars, the standard contractor could argue that it was forced to sign the change buy.

“Symbolically, it is the contractor placing a gun to your head and expressing, ‘Sign this or else,’” Murphy reported.


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