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Does a construction delay constitute a breach of contract?

| Jun 18, 2021 | Construction Law |

When two parties enter into an agreement for the construction of the new building, golf course, or complex, both parties are legally required to adhere to the terms or the contract. Most construction contracts specify multiple deadlines, often one for each stage of the project, to make sure that the project is completed in a timely manner.

However, as many Florida contractors will tell you, there are many reasons why a construction company’s work performance may be delayed. In some cases, a delay is unavoidable due to an unforeseen condition, but in other cases the delay is solely caused by a company’s negligence or willful behavior.

A substantial delay may be a material breach

In order to recover damages for a delay or another breach of contract, you will need to show that the breach was material. Generally, this means that a delay must be substantial and causes the other party to sustain loss or damages. A project delay that occurs for one of the following reasons may constitute a material breach of contract, as the delay could have been avoided if the construction company had acted more responsibly.

  • Failure to properly estimate the budget for the project
  • Failure to hire the correct number or type of workers
  • Failure to request project approvals on time
  • Failure to properly communicate with subcontractors or manage their schedules
  • Taking on too many other projects at once

However, keep in mind that some contracts have a ‘no damages for delay’ clause that prevents the non-breaching party from recovering damages for the delay.

What makes a delay excusable?

If there is a reasonable excuse for a delay, it may not be considered a material breach of contract. Bad weather and unexpected job site conditions may be considered valid excuses for the delay, as they prevent the construction company from being able to perform through no fault of their own. These are some common defenses used in a breach of contract case.

  • Commercial impracticability – Contract could still be performed, but it is impracticable for one side to perform. For example, a natural disaster destroying the construction site prior to the start of the project may be enough to excuse a delay.
  • Subjective impossibility – One party cannot perform their duties under the contract, but someone else is able to step in on their behalf.
  • Objective impossibility – It is not possible for either party to perform under the contract.

It can be difficult to determine whether the delay in your project is excusable. An attorney can assist you with construction delay litigation against construction companies and help you recover the damages you are entitled to.

 

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Dana Watts is a board certified civil trial lawyer by the Florida Bar Board of Legal Specialization with more than 30 years of litigation experience. He also received an AV* peer review rating through Martindale-Hubbell.

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