Section 3.8.9 Tort vs. Contract: Defenses

• Library: Construction Law Practice Manual 3rd Edition 2016

§ 3.8.9 Tort vs. Contract: Defenses

The real disparity, then, between contract remedies and tort remedies, is not found in the measure of damages, but rather in the defenses available in the former, but not the latter: namely, contractual provisions limiting or waiving liability. It is these contractual provisions that allow parties to a contract to order their own affairs through negotiation and to establish appropriate remedies commensurate with the promised consideration.

In today’s construction industry, such qualifying contractual provisions proliferate, including:

· No damages for delay clauses

· No consequential damages clauses

· Limitation of liability clauses

PRACTICE POINTER In performing contract review, determine whether these provisions are included and discuss them with...