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

AuthorBy Marc A. Schneier
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
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.
A Response to Mr. Snider’s Platonic Idea of
“Quality” in Construction Contract Drafting
(with Help from Ludwig Wittgenstein)
By Marc M. Schneier
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.”
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,”
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.”
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.”
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.”
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

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