Contract Law in the Construction Industry Context  book cover
1st Edition

Contract Law in the Construction Industry Context

ISBN 9780367346195
Published October 21, 2019 by Routledge
184 Pages

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Book Description

This book chronicles how contract cases from the construction industry have influenced, solidified, refined and particularized U.S. contract law. The book’s central claim is that the construction industry experience has helped to contextualize U.S. contract law and, therefore, has encouraged the common law to be more receptive to flexible legal standards and practices and less constrained by the relatively rigid rules that often characterize contract law. Other scholarly books analyze the themes, values, standards, and principles of contemporary contract law, but none captures how construction industry relationships and practices have influenced the common law of contracts.

After providing an overview of construction law as a specialty of the practicing bar and as a field for scholarly inquiry, this book examines the construction industry cases that have most directly influenced contract law. It reviews how industry dispute patterns have caused courts to refine contract law principles or to adapt and modify other principles. Separate chapters explain the special roles that cases in the U.S. Supreme Court and in the lower federal courts have played in defining and distinguishing contract law in the construction industry. The final chapters assess implications the construction industry cases hold for contract theory writ large, and for the future of contract law.

This book is essential reading for legal scholars, construction law and contract law specialists, and those interested in how the construction industry has helped shape the U.S. legal system.

Table of Contents

Part 1 Contract Law and the Construction Industry

1 The Practice and Study of Construction Law

Construction Law as a Practice Specialty

A Scholarly Perspective on Construction Law

Looking for Meaning in the Construction Industry Contract Cases

Part 2 The Role and Significance of the Industry Cases

2 The Construction Industry and Core Principles of Contract Law

Substantial Performance

Economic Waste

Unilateral Mistake

Offer as Enforceable Option Contract

Changed Circumstances and the Pre-existing Duty Rule

Assessing the Industry’s Impact on Core Principles

3 Adaptations, Refinements, and Constraints in the Industry Cases

Implied Warranties and Other Implied Obligations

Third-party Dispute Resolution


Measure and Proof of Damages


Express Contractual Limits

Liquidated Damages

No-damage-for-delay Clauses

Conditional Payment Clauses

Termination for Convenience

Unilateral Changes

Third-party Beneficiaries

Contextual Interpretation

The Duty to Disclose

Impossibility, Impracticality, and Force Majeure

Other Contract Interpretation Principles


And Much More

Part 3 The Federal Cases

4 The U.S. Supreme Court Cases

Owner’s Implied Obligations

Dispute Resolution

Construction Liens

The Court’s Construction Contract Jurisprudence

Constitutional Issues

Taking Stock of the Court’s Industry Cases

5 Federal Construction Contract Law Today

The Special Place of the Federal Construction Contract Cases

Implied Obligations

Changes to the Contractor’s Obligations

The Changes Clause in the Federal Decisions

Differing Site Conditions


Contractor’s Measure and Proof of Damages

The Severin Doctrine

Lessons from the Federal Cases

Part 4 Assessing Contract Law in the Construction Industry Context

6 Contract Theory and the Construction Industry Cases

Competing Conceptions of Contract

The Dubious Reign of Classical Contract

Contract Theory and the U.S. Supreme Court Cases

The Industry Rejects Two Classical Rules

Evolving Trends, the U.C.C., the Second Restatement, and the Influence of Industry Cases

Distinctive Trends in the Industry Cases

The Special Story of Contract Interpretation

Text and Context

The Interpretive Process

Contract Interpretation Principles in Industry Cases

Inferring Obligations in Industry Cases

Imposing Obligations in Industry Cases

Text and Context Revisited

An Aside: The Economic Loss Rule of Tort Law

Detecting Contract Theory in the Industry Context

7. A Backward Glance and a Forward Glimpse

The Industry Cases in Retrospect

The Future of Contract Law in the Industry and Beyond

The Future of Construction Law Scholarship

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Carl J. Circo, J.D., is Ben J. Altheimer Professor of Legal Advocacy at the University of Arkansas School of Law, U.S.A.