§ 3.12 Defenses

LibraryConstruction Law in Oregon (OSBar) (2019 Ed.)
§ 3.12 DEFENSES

§ 3.12-1 Contract Defenses

The same defenses are available to design professionals and owners as in any other contractual dispute. For a more thorough treatment of contract defenses, see Contract Law in Oregon (Oregon CLE 2003 & Supp 2008). Defenses include statute of frauds, accord and satisfaction, illegality, novation, misrepresentation, mistake, duress, impossibility, and the statute of limitations. For a discussion of statutes of limitation, see § 3.12-4. See generally chapter 14 (proving and defending claims).

Specific defenses associated with professional licensing are illegality or lack of capacity, which may be raised if the design professional is not properly licensed in Oregon. See ORS 671.020 (architects); ORS 672.020 (engineers); ORS 672.025 (land surveyors); ORS 671.316 (landscape architects). No person, firm, partnership, LLC, or corporation practicing architecture in Oregon is entitled to maintain a proceeding in any court unless it is alleged and proved that the person, firm, partnership, LLC, or corporation was licensed to practice architecture in Oregon at the time the services were rendered. ORS 671.220(3). An architect who does not qualify cannot maintain a proceeding relating to his or her services. Central Coast Constr. v. Nels Laundry Serv. Corp., 275 Or 573, 576-77, 551 P2d 1294 (1976). No similar statutory provision exists for engineers, land surveyors, or landscape architects.

Payment for services performed while unlicensed as an architect in Oregon may not be collected in Oregon courts, "even though this may result in a windfall to a party using the architect's services." Central Coast Constr., 275 Or at 577. A contract with an out-of-state firm, however, is not illegal and void even though payment for the services performed while unlicensed is not collectible in Oregon. Friedman v. Mt. Vill., Inc., 55 Or App 1018, 1023-24, 640 P2d 1037, rev den, 293 Or 235 (1982). Because architectural licensing was established in part to protect and safeguard the life, health, and property of the public (ORS 671.020), enforcing licensing requirements is more important than a client paying for services performed by an unlicensed architect despite the benefit to the client. Central Coast Constr., 275 Or at 577.

With regard to engineers, ORS 672.020(1) prohibits a person from practicing engineering in Oregon unless he or she is registered and has a valid certificate to practice issued under the Oregon statutes. A contract in violation of these express prohibitions is unenforceable. Wheeler v. Bucksteel Co., 73 Or App 495, 500, 698 P2d 995, rev den, 299 Or 583 (1985). Other occupational licensing statutes expressly prohibit an action to enforce contractual relations. See ORS 671.220(3) (architects); ORS 696.710 (real estate brokers); ORS 701.065 (builders). However, the court of appeals in Wheeler, 73 Or App 500, held that such a statutory provision is not necessary with respect to engineers, because the legislature prohibited engineers from providing engineering services without being registered. That prohibition alone necessarily makes unenforceable a contract by an unlicensed engineer.

§ 3.12-2 The Contract

Whether the plaintiff is the client or a third party, a design professional's primary defenses flow from the contract for design services. Contracts usually address scope of duty, standard of care, time and venue for suit, waiver, and consent.

§ 3.12-3 Contributory Negligence

§ 3.12-3(a) Client (Owner)

The design professional has the right to assume that the client will use reasonable care in making decisions about the project. See Davis v. Homasote Co., ...

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