suspend operations for a longer or shorter period. In the early days of railroad building it was not uncommon for the railroad companies to award construction contracts before they had secured all the necessary right of way. Unexpected difficulties (financial and otherwise) not having any direct connection with the Contractor's work sometimes require that the Owner stop the work for a time. (b) To provide for contingencies of this sort there has been introduced into some specifications a clause giving the Owner the right to shut down or suspend the work at will. That the exercise of such a right might work a gross injustice to the Contractor is readily seen. A complete shut-down necessitates the proper storage or protection of the plant, the discharge of an organized body of workmen and the enforced idleness of capital. In justice to the Contractor such clauses should (and sometimes do) contain provision for reimbursing him in some way for such losses as an enforced suspension of the work in question must entail. The student should clearly discriminate between giving the Owner the right to suspend work for the various reasons above mentioned and the right given in Art. 50, (b). Criticize the following, from paving specifications: "The Highway Commissioner shall have the right to suspend the work at any time whenever in his judgment it becomes necessary.' (A) (The Owner) reserves the right of suspending the whole or any part of the work to be done hereunder, at any time, if ...... (he) (his) shall deem it for interest to do so. If the work is so suspended, the Contractor shall be entitled to an extension of the time for completing the work equal to the time during which the work shall have been suspended by the order of . . . . . . . . (the Owner) ... (the Owner) shall pay to the and certified monthly by the Engineer, of storing and protecting any part or parts of the plant which shall have been shipped from the place of manufacture or which shall be ready for shipment, together with interest at the rate of five (5) per cent per annum for the period during which the work shall be suspended on the twenty (20) per cent reserved from the monthly estimates made previous to the date when work is ordered suspended. 52. Extension of Time. (a) Certain delays, impossible to foresee, occur in connection with almost all construction projects. The most frequently recurring result from the action of the elements, weather conditions, labor troubles, failure to secure material promptly and the like. For some of these causes it would be only fair to grant an extension of time (see Art. 43), but it is not always easy to state just which of these will and which will not be considered legitimate causes for delay. Delays caused directly by the Owner, whether or not they involve actual suspension, are of course beyond the Contractor's power to prevent. The death of the Contractor has been held not to be legitimate cause for delay. A very few specifications, notably those used in the construction of portions of New York City's Catskill Aqueduct, contain a definite statement that an extension of time will not be allowed for any cause whatever. (b) There are four points to be made clear in such a clause, namely: (i) Enumerate as far as possible any future occurrences for which it is to be understood that the Owner will or will not be willing to grant an extension of time. (ii) State that an extension of time shall not be construed as weakening the original contract in any particular. It might otherwise be held by the bondsmen (see Arts. 11, 29) that they were no longer obligated. Stated in legal terms, the expression would be that any delay granted by the Owner should not operate as a "waiver of his rights" to insist on the performance of the contract, in spite of the fact that he had, in substance, permitted the Contractor to break it. (iii) Provide that the Contractor shall give formal notice, at the time it occurs, of any such delay, with full particulars as to cause and duration. (iv) Stipulate that no additional compensation will be allowed the Contractor for any losses occasioned him by the delays, except in cases of actual suspension. (See illustrations under next clause.) (A) "Should the Contractor be delayed in the prosecution of the work by the act, neglect or default of the Owner, of the Architects, or of any other Contractor employed by the Owner upon the work, or by any damage caused by fire or other casualty for which the Contractor is not responsible, or by the combined action of workmen in no wise caused by or resulting from default or collusion on the part of the Contractor, then the time herein fixed for the completion of the work shall be extended for a period equivalent to the time lost by reason of any or all of the causes aforesaid, which extended period shall be determined and fixed by the Architect: but no such allowance of time shall be made unless a claim therefor is presented in writing to the Architect within forty-eight hours of the occurrence of the delay." From standard building contract of the American Institute of Architects. (B) If the Contractor is obstructed or delayed in the prosecution or completion of the work by reason of the neglect, delay or default of any other Contractor having a contract with ...... (the Owner) ...... for adjoining or contiguous work, or by reason of any damage that may happen thereto by the unusual action of the elements, or by reason of the abandonment of the work by the employees in a general strike, or by reason of any delay on the part of .. (the Owner) in doing the work or furnishing the material to be done and furnished by (the Owner) the Contractor shall have no claim for damages for any such cause or delay, but he shall be entitled to such extension of the time herein specified for the completion of the work as the Engineer shall determine to be just and proper, provided however that such claim for such extension of time is made by the Contractor in writing to the Engineer within one week from the time when any such cause for delay occurs. (C) The Contractor shall not be entitled to any claims for damages from any hindrance or delay, from any cause whatever, in the progress of the work, or any portion thereof, but when such hindrance or delay results from causes entirely beyond the control of the Contractor, said hindrance or delay, excepting such as may from time to time result from ordinary and not unusual. weather conditions for the season of the year when he is at work, may entitle the Contractor to such an extension of time for completing the contract as may be determined by the Engineer, provided the Contractor shall have given notice in writing of the cause of the detention. 53. Failure to Complete Punctually. The student should realize that to compel a Contractor (or in fact either party to a contract of any description) to fulfil the terms of his contract is well-nigh impossible.* There are, therefore, no means by which either Owner or Engineer can actually force a Contractor, even under a strong and carefully worded contract, to complete a piece of work within the agreed time. (a) As an illustration, suppose that a contract provided for the erection of a small bridge of simple construction, and that the time limit for completion named in the specifications (or contract) was six months. If the Contractor had not finished * Only in rare instances can "specific performance" be enforced. † Had no time limit been mentioned the courts would hold that the Contractor was bound to complete within a "reasonable" time. the bridge at the end of the six months- whether or not he did so at a later date - he would not have carried out the terms of his contract. In such event the Owner might have a case against him for "breach of contract," and could, if he thought it advisable, take the matter to the courts and sue the Contractor for damages. Under these circumstances it is probable that the courts would hold that the Contractor must make good any money loss which the Owner could prove he had suffered by the Contractor's failure to complete the bridge according to the terms of the contract. (b) But suppose instead that the Owner, realizing the futility of attempting to compel the Contractor to live up to the terms of his contract, yet not wishing to be under the necessity of appealing to the courts, had provided in the contract (or specifications) that the Contractor should, in the event of his not finishing on time, forfeit, as a penalty, either a large single sum of money or a sum which increased with each day's delay. In case the Contractor failed to complete on time the Owner might now attempt to collect the sum provided for. The Contractor would perhaps object to making the payment and the case would go to the courts as before. Decisions in many similar cases have been that since forfeiture of the money was held over the Contractor's head as a form of penalty (or punishment) and since they (the courts) alone had the right to inflict punishment, the money could not be collected. The courts will allow a person suffering from a breach of contract to collect only such reasonable money damages as he can show he has suffered.* Courts are, moreover, jealous of their rights, and are apt to discourage any attempt to settle damages before they have accrued. (c) To avoid the annoyance of an appeal to the courts the following expedient is now commonly adopted. A reasonable sum (generally per diem) is mentioned in the specifications as "agreed and liquidated damages" which the Owner will suffer in * One exception to this ruling is in the case of breach of promise to marry which event injured feelings or reputation may sometimes be converted into cash. |