Differing & Unforeseen Conditions Differing Site Conditions- actual conditions differ from the representation made in the contract documents (MSP airport) Unforeseen Condition- unusual situation not reasonably anticipated based on contract documents

Differing & Unforeseen Conditions Contractor is awarded damages for differing site conditions Contractor NOT awarded damages for unforeseen site conditions unless they rise to the level of practical impossibility, commercial senselessness, or there is contract language transferring risk (common)

Differing & Unforeseen Conditions If the contract is silent, then ONLY unforeseen conditions can arise Unknown physical condition of an unusual nature that differs materially from those ordinarily encountered (buried tank example) Doesn’t cover weather, economic condition, market factors, etc.

Differing & Unforeseen Conditions Owner is liable only if Risk transfer clause is executed a priori Objective or practical impossibility Tort claim arises Ambiguous contract could be interpreted as differing (not unforeseen)

Differing & Unforeseen Conditions Unforeseen site conditions clause is standard in most contracts. Can be invoked if Condition is unknown to contractor Condition is unusual Condition is materially different

Differing & Unforeseen Conditions Objective or practical impossibility was covered in chapter 8 Nondisclosure- owner has a duty to report (widely recognized by most courts) soil borings is example Tort claim- additional contract clauses to deal with torts (fraud, negligence, misrepresentation)

Differing & Unforeseen Conditions Ambiguity- need interpretation of whether the condition is unforeseen or differing (transfer clause eliminates distinction in most cases) Prebid site inspection- required in most contracts. Visible conditions cannot be later claimed as unforeseen or differing

Warranties Special contract guaranteeing quality or performance Express warranties- expressed by the terms of a contract, generally written, with guarantees contained in the contract (subs supply many) Implied warranties- added into a contract by law. Must no law to act on the warranty (3-day revocation period)

Warranties Express warranty- can be oral, but hard to enforce Oral is unenforceable beyond one year Installer versus supplier warranties Many owners prefer distributor or manufacturer warranty because less likelihood of default (roofs, windows)

Warranties Types of implied warranties- Spearin warranty- owner “implies” the plans and specs are complete and sufficient for construction Contractors warranty- “good and workmanlike” standard of construction Merchantability of goods warranty Fitness for Purpose warranty

Warranties Contractors warranty- Good and workmanlike manner Case law interpretation Different jurisdictional standards Habitability standard prevails Roof and window leaks are examples

Warranties Merchantability of Goods- UCC statute Sale of goods by manufacturers and commercial sellers Like quality and performance for goods used for similar purpose Used for appliances, HVAC equip, hardware, etc.

Warranties Fitness for Purpose Warranty UCC statute Similar to merchantability warranty, but for a specific purpose No “like quality standard” exists Sold for a specific use Some types of pumps, conveyance systems, etc.