The Elusive Concept of -Quality- in Construction Contract Drafting

• Author: By W.C. Garth Snider
• Pages: 31-34

THE CONSTRUCTION LAWYER 31Spring 2020

W.C. Garth Snider

Published in The Construction Lawyer, Volume 40, Number 2, Spring 2020. © 2020 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion

thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

The Elusive Concept of “Quality” in

Construction Contract Drafting

By W.C. Garth Snider

QUALITY OF DELIVERABLES

W.C. Garth Snider is chief operating ofcer and general

counsel of Humphries and Company in Smyrna, Georgia.

Inherent in every construction

contract is the concept of the

delivery of a quality project.

Quality is presumed at some

level in every contract irre-

spective of whether it is stated

or not. At its most basic level,

quality is a measure of the

builder’s ability to conform

its idea of quality with the

owner’s idea of quality, and

the closer these two ideas are

together, the less likely there

will be a dispute or disagree-

ment. The notion of quality might be expressly stated in the

contract or it might be implied. But make no mistake: the

idea of quality is in every construction contract.

In Jacobellis v. Ohio, Justice Potter Stewart famously

wrote “I know it when I see it” when referring to obscen-

ity.1 The concept of quality is similarly elusive when it

comes to a commonly agreed-upon and workable legal

denition. In Miller v. California, the Supreme Court

eventually decided upon a three-part test to decide what

constituted obscenity.2 Like obscenity, the idea of quality

is both subjective and dependent upon an anchor concept

that provides the basis for the parameters of the word.

Each party to a construction contract expects quality con-

struction to be provided. Yet it is very difcult to nd a

precise denition of quality that everyone in the construc

-

tion industry can agree upon unless quality is expressly

described in the contract. Moreover, quality is often

determined on a gradient—less quality to better quality.

Payment for services rendered is based on the expected

level of quality being provided. For example, the cost of

level-three drywall nishing is less than that of level-ve

drywall nishing. Inherent in each level of nishing is a

pseudo-empirical idea of quality for that particular nish

level. But that notion of quality is anchored to a larger,

more universal concept of quality.

Even the contracts that use the term quality rarely

dene that term. For example, the American Institute of

Architect’s (AIA’s) Document A201 uses the term quality

in at least three places but does not dene quality. In those

instances where quality is used to describe a requirement

that a contractor must satisfy, then one must look to

extra-contractual standards and denitions to interpret

and ultimately enforce the quality requirement. Even if

the term quality is not expressly stated in the contract, the

concept or the idea of quality can and many times does

provide the basis for a claim for breach of the warranty

of workmanship (express or implied) or some similar legal

doctrine. The problem lies in the fact that these legal doc-

trines can be merely another way of phrasing or positing

a claim that really is about quality. This article will detail

the inherent hermeneutical challenges with the term qual-

ity as it applies to construction contracts by using Plato’s

universal Ideas and Kant’s distinction between common

understanding and common sense.

Quality Exists as a Universal Idea

If quality is capable of providing meaning by its usage

in a contract, then it must be a concept that has some

type of universal acceptance. Quality can be explained or

dened as an example of a universal form or idea. The

ancient Greeks called this an Idea. With and through

this Idea, all hold to and agree to, at least insofar as a

touchstone conceptualization is concerned, the univer-

sal elements or characteristics of the Idea. Ideas are just

the sum and substance of the human mind. Ideas are, by

denition, nascent; they are the nascent primordial sub-

stance that gives birth to all forms of thought in us and

that are given at birth. In this context, the idea of quality,

as will be explained below, is analogous to common sense.

The idea of quality permits a meaningful conception of

quality to be devised that allows, in turn, the explication

of the common understanding by and through the use of

our common sense. First, however, one must determine

whether two or more people can read or hear the word

quality and arrive at the same concept of quality a priori.

The conception of the universal Ideas was first

explored in great detail by the ancient Greeks. In The

Republic, Plato uses the example of a bed to help explain

what an Idea is.3 He states that the bed was an idea cre-

ated by God and was constructed by the bed-maker, but

it could be painted by someone who did not see the bed

but could conceive of the idea of the bed that was con-

structed.

4

Plato states, “Beds, then, are of three kinds,

and there are three artists who superintend them: God,

the maker of the bed, and the painter.”5 Thus, the bed-

maker and painter could conceive of the idea of a bed,

as God has “allowed” such to occur a priori.