A Response to Mr. Snider's Platonic Idea of -Quality- in Construction Contract Drafting (with Help from Ludwig Wittgenstein)

• Author: By Marc A. Schneier
• Pages: 15-17

THE CONSTRUCTION LAWYER 15Summer 2020

Published in The Construction Lawyer, Volume 40, Number 3 Summer2020. © 2020 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion

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A Response to Mr. Snider’s Platonic Idea of

“Quality” in Construction Contract Drafting

(with Help from Ludwig Wittgenstein)

By Marc M. Schneier

CONTRACT DRAFTING

Marc M. Schneier is the editor of Construction Litigation

Reporter, has written or co-authored several books and

articles on construction law, and provides consulting for

construction lawyers. His website is www.buildinglaw.org.

Every day in my professional

career, I use the skills I was

taught acquiring an under-

graduate degree in philosophy

from the University of Califor-

nia, Berkeley, including critical

thinking, logical reasoning, and

having a sharp eye for rhetori-

cal fallacies. Yet my substantive

knowledge of Plato, Buddhism,

and Immanuel Kant was

directly challenged when read-

ing W.C. Garth Snider’s article

in the Spring 2020 issue of The

Construction Lawyer, “The Elusive Concept of ‘Quality’ in

Construction Contract Drafting.”

1

Dredging memories of

more than four decades ago, I propose this rebuttal to Mr.

Snider’s philosophical/legal endeavor.2

Mr. Snider’s Opus

Mr. Snider renders a great service to the construction bar

by shining a light on a hidden premise underlying all of

construction contract drafting—the concept of quality. He

rightly points out in his opening paragraph that “[q]uality

is presumed at some level in every contract irrespective of

whether it is stated or not.”3 Like Justice Potter Stewart’s

denition of obscenity, “I know it when I see it,”

4

Mr. Snider

believes quality is a universally accessible concept, even while

its application is context dependent. But intuitive under-

standing and hard-and-fast denition are two, very different

things. Indeed, the rest of the article is nothing less than Mr.

Snider’s Herculean effort to try to dene the term “quality.”

Mr. Snider begins his undertaking with a dictionary de-

nition and a review of two industry organizations’ efforts.

A dictionary denes “quality” as a noun in a most ephem-

eral manner: (1) a peculiar and essential character, (2) a

distinguishing characteristic, and (3) degree of excellence

or superiority in kind. Even worse is its elliptical (if not

tautological) denition of “quality” as an adjective: “being

of high quality.”

5

The American Institute of Architects is

not much better. The AIA Document A201-2017, § 3.5,

titled “Warranty,” uses the term “quality” twice, each time

in a grammatically different manner. Mr. Snider sadly con-

cludes, “the drafters made the meaning of ‘quality’ less clear,

and thus less meaningful.”6 Last, the American Society for

Quality (ASQ) provides two, technical denitions: (1) the

characteristics of a product or service that bear on its abil-

ity to satisfy stated or implied needs and (2) a product or

service free of deciencies. Lamenting the subjective nature

of the ASQ denitions, the author concludes that “‘quality’

is a difcult word to dene and, thus, arguably causes more

confusion when used than when it is included in a contract.”

7

This dead end leaves a hole in construction law juris-

prudence. “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.”

8

It is in his effort to better describe a

universal, intuitive understanding of quality that the author

turns to philosophy.

For Mr. Snider, Plato’s concept of Ideas (with a capital I)

provides the vehicle for understanding the universal mean-

ing of a term. Veering, now, from Mr. Snider’s description,

allow me to provide my own. Plato’s Theory of Forms (this

is the proper term, not Theory of Ideas)9 is the unchang-

ing essences of things. When we say act A is just and act B

is just, what they have in common is that they participate

in the Form, Justice itself, which is the perfect exemplar of

Justice and is the eternal, immaterial object to which we all

refer when we say or think that something is just.

How does this concept of a Platonic Form (or Idea)

inform Mr. Snider? He explains,

Quality is relative to time and space as far as the

perception of quality changes along the time-space

continuum. ... But the object does not change the

Idea of quality; rather, the perception of quality

changes relative in time and space. The touchstone

of the Idea of quality never changes. In the same way

that one can devise mathematical formulas to arrive at

the number 100, while the number itself is unchanged

by the route to which it was achieved, so too can the

perceptions of quality change, but the Idea of qual-

ity remains constant.10

Now Mr. Snider turns to Immanuel Kant’s Critique of

Judgement, and a distinction the philosopher drew between

Marc M. Schneier