The Open Access version of this book, available at http://www.taylorfrancis.com, has been made available under a Creative Commons [Attribution-Non Commercial-No Derivatives (CC-BY-NC-ND)] 4.0 license."
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.
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
Damages
Measure and Proof of Damages
Betterment
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
Subcontracts
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
Termination
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
Biography
Carl J. Circo, J.D., is Ben J. Altheimer Professor of Legal Advocacy at the University of Arkansas School of Law, U.S.A.
