1st Edition

Contract Law in the Construction Industry Context

By Carl J. Circo Copyright 2020
    184 Pages
    by Routledge

    184 Pages
    by Routledge

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    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


    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


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