The Elusive Concept of -Quality- in Construction Contract Drafting

AuthorBy W.C. Garth Snider
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
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 (AIAs) 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-
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.

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