Section 8.22 “No Damages for Delay” Clauses—Private Contracts

• Library: Construction Law 2016 Supp

K. (§8.22) “No Damages for Delay” Clauses—Private Contracts

A “no damages for delay” clause limits the contractor’s remedy for delays to an extension of time, precluding the recovery of damages. AIA Document A201-1997, General Conditions of the Contract for Construction (15^th ed.), is neutral on the right to recover damages for delay. Paragraph 8.3.3. Missouri courts will generally enforce contractual limitations on liability in commercial contracts. See Purcell Tire & Rubber Co. v. Executive Beechcraft, Inc., 59 S.W.3d 505 (Mo. banc 2001) (sophisticated parties to a commercial transaction). In Roy A. Elam Masonry, Inc. v. Fru-Con Construction Corp., 922 S.W.2d 783 (Mo. App. E.D. 1996), the court enforced the clause in a subcontract that conditioned the subcontractor’s recovery of delay damages on the general contractor’s recoupment from the owner. Although the court did not characterize the clause as a pure “no damage for delay” clause, the court found no reason why this “unambiguous” provision could not be enforced as written. Id. at 789. The court noted that provisions in private contracts limiting or excluding liability for consequential damages are not contrary...