The Validity of Exculpatory Clauses in Architectural Services Contracts
| Jurisdiction | Colorado,United States |
| Citation | Vol. 25 No. 2 Pg. 39 |
| Pages | 39 |
| Publication year | 1996 |
1996, March, Pg. 39. The Validity of Exculpatory Clauses in Architectural Services Contracts
Well-known legal tenets dictate that physicians and attorneys cannot absolve themselves from the consequences of their negligence by the use of exculpatory clauses in professional services contracts. This is also true of businesses that serve the public under varying degrees of governmental control. However, architects, who conceivably could be classified either as professionals similar to physicians or attorneys or as public service businesses, routinely use exculpatory clauses in nearly all of their contracts with their clients.(fn1) This article examines whether such exculpatory clauses are valid and enforceable.
Little discussion is needed regarding exculpatory clauses in physician and attorney services contracts. In the medical profession, these clauses are obviously not valid, and in the rare instances where the courts have treated the issue, that is apt to be the language used.(fn2)
The prohibition against use of exculpatory clauses by the legal profession runs even deeper. Such clauses, or any other methods designed to absolve attorneys from the results of their negligence, are prohibited by the Colorado Rules of Professional Conduct. Cases concerning attorneys are considered under the applicable rule and can result in severe discipline.(fn3)
Outside of these two professions, the courts have long frowned on exculpatory clauses in contracts generally.(fn4) This is particularly so if the contract in question is endowed with a public interest. Williston on Contracts has referred to such clauses as "peculiarly obnoxious."(fn5) The public interest inserts itself if one of the parties is charged with a duty of public service and the negligence occurs in the performance of any part of its duty to the public for which it has received or been promised compensation.(fn6)
The first trade in Colorado to be cloaked with this public interest was that of common carriers. In a case arising when Colorado was a territory and decided during the April 1877 term of Colorado's new Supreme Court, Chief Justice Thatcher cited early English cases and a U.S. Supreme Court case when he held:
With a zealous eye the law keeps vigil over the public weal, and will not permit a carrier to enter into a contract which will exempt him from liability so far as his duty is of a public character.(fn7)
Subsequent cases have strengthened this holding and applied the doctrine to other businesses of a public nature, such as telegraph companies and public utilities, and to the law governing trustees.(fn8)
This view has evolved into the doctrine that an exculpatory contract may be valid only if the public interest is not involved. This is the majority view in the United States.(fn9) The current law in Colorado is represented by Jones v. Dressel.(fn10) Jones establishes four factors to consider in determining the validity of an exculpatory clause. The first is the existence of a duty to the public. If this is found, the clause is invalid and unenforceable and the remaining three factors are not considered. Jones also describes the characteristics of a duty to the public.(fn11)
The courts that have considered exculpatory clauses in architectural contracts have not analyzed architecture as either a profession or a business with a duty to the public. Following is a discussion of how the courts have treated architects.
Architecture is an ancient profession. Builders were mentioned in the Babylonian Laws during the reign of Hammurabi in the first dynasty of Babylon, which...
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