History of Evasive Contract Phrases

by Louis J. Thompson, (M.ASCE), Prof.; Civ. Engrg. Dept., Texas A&M Univ., College Station, Tex.,
Cynthia Thompson Portis, Attorney at Law; Norman, Okla.,

Serial Information: Journal of the Construction Division, 1978, Vol. 104, Issue 4, Pg. 525-537

Document Type: Journal Paper

Abstract: Evasive contract phrases traditionally used in the general conditions of construction contracts require the contractor to idemnify and protect the owner and his agent (the engineer) against all claims regardless of the adequacy of the design, to investigate the site, design all temporary supporting structures, be liable for all damages, and assume all risks. This procedure developed in England during the late 18th Century with the Industrial Revolution as industry demanded uniform justice for expediency's sake, holding that all risks could be adequately compensated. Prior to this, caveatory, disclaimer, and exculpatory phrases were not allowed in agreements. Contract disputes were adjudicated in courts of Equity which sought substantive fairness, justice, and equality for all parties regardless of the contract terms. The present system places engineering design responsibilities on the contractor which he is not professionally capable of bearing. Reform is needed, and it must come from the engineers.

Subject Headings: Contracts | History | Site investigation | Risk management | Contractors and subcontractors | Construction sites | Systems engineering | Industries | Owners | United Kingdom | England | Europe

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