Contractor Problems
From: John Abrams (
Date: Thu, 11 Jun 1998 13:58:06 -0500
Dear Denise -

You said:

>Our project manager and several of our development group members are
>advising that using a boilerplate contract and maintaining good lines of
>communication with the builder should be enough, and that including
>punitive clauses and super-careful language sets a tone with the builder
>and the subs that we are prepared to go to litigation at the drop of the
>hat, and therefore encourages them to spend (waste) a lot of time
>documenting anything that might mitigate any liability that they might
>have for errors and/or delays. They also caution that hiring a lawyer
>means the lawyer becomes liable for the effectiveness of the contract and
>encourages them to leave no stone unturned, no I undotted, and will run
>into big money pretty quickly (and might result in a contract the builder
>would be unwilling to sign without hiring his own lawyer, and then we're
>off into never-never land!!)

After 25 years of designing and building, and hundreds of contracts
negotiated with clients, contractors, and subcontractors, I find that I
still don't know much about building, but I have learned a bit about human
nature.  Our competitive building system is truly contrary to good
collaborative work.  I second the sentiments of those members of your
development group who suggest that one can over-protect to the point that
it becomes counter-productive. But I'll take it a step further.

If your contractor has given you any indications that he/she is going to be
trouble you've got the wrong contractor.  The only way to assure that
you've got the right contractor is to hire your contractor the same way
you'd hire a doctor to do a difficult and specialized procedure to your
body - you go out and get the best person for the job, someone who comes
highly recommended, someone who inspires trust and confidence, someone with
whom your communication is direct and satisfying, someone who does what
they say they'll do without question or excuses.  Then you trust that
person to do a good job.  And they will.  Cost is important, but secondary.
An individual like the one described above may not give you the lowest
price, but you can be sure it is a fair one.  Never accept a low price - it
will turn out to be the opposite.

The contract has a very special purpose:  to remind everyone later what the
parties' intentions were long ago when it was negotiated, and to be a
record of the relationship of trust both parties entered into willingly and
hopefully.  It should express both parties' responsibilities and
expectations.  If  you try to protect in such a way that the contract will
serve you during litigation, you're on the wrong track, because if it ever
gets to litigation everyone loses.

Best of luck with it -

John Abrams
South Mountain Co., Inc. and Island Cohousing
Chilmark MA

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