Why words matter (aka Shakespeare for Architects & Engineers) (Law note)

“What’s in a name? That which we call a rose
By any other name would smell as sweet.”

Romeo and Juliet (II, ii, 1-2)

Romeo & Juliet balcony

Words do matter.  In the context of construction law, there are some words that you should avoid at all costs.  Top of the list is the word inspect.  If your contract gives you the responsibility of inspecting the contractor’s work, stop.  Do not pass go.  Do not collect $200.  Inspection (at least to some owners and juries) connotes that a thorough review will be provided, and that every fault will be identified.  Instead of Inspection, a better word for your construction contract is Observe.  You should not be providing periodic inspection.  Instead, provide periodic observation.  

Am I nit-picking? Perhaps.  But inspect implies a much stronger duty than observe.  (Just my personal observation!).  There are other words you should also avoid in construction contracts.

Instead of certify, try review

Instead of approving shop drawings, try No exceptions noted 

Instead of best (or highest) standards, try meet the professional standard of care

Instead of immediately, try without undue delay

This list is just a sample.  There are many other words to be leery of, including guarantee, warrant, insure, and ensure.  

In doubt about whether your contract contains dangerous words that may expose you to extra legal liability?  Write your contract as if your attorney is looking over your shoulder.  Keep in mind, both Romeo and Juliet learned the hard way that words do indeed matter.

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Add a comment »2 comments to this article

  1. I agree with periodic observations in lieu of inspection. However, what about the Architect’s actual first and second inspections (i.e. Inspections for Substantial Completion and Final Acceptance), per AIA A201.

    Regarding certify, what about its use in Industry Standard form G704, Certificate of Substantial Completion Document.

    Reply

    • Jonathan:
      Thanks for the comment. Yes, it is true that there are some phrases within the AIA documents that use those terms. However, they generally are couched in enough qualifying language that they are not devistating, as they might be in another context. For example, re: certificates of payment, B101 states that certification is not a representation of “exhaustive or continuous on-site inspections to check the quality or quantity of the work” (Section 3.6.3.2). In general, taken as a whole, the standard documents have enough meat in them to protect the design professional. The danger usually comes in either addendum, non-form contracts, or letters and such declaring “inspections” having taken place.

      Reply

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