Published February 2005

I have heard this complaint more often than I can count. It usually originates from contractors who, in order to get a job, have had to sign a construction contract with terms which the contractor thinks are one-sided and harsh. The reason is simple, of course. The owner sets out the terms of the construction contract in the invitation to tender and retains a lawyer to draft those terms. The lawyer’s duty is solely to the owner in these circumstances and, therefore, the lawyer drafts terms which are intended to protect the owner from as many of the possible contingencies as the lawyer can think of. The owner might then be tempted to add even more onerous terms in an effort to transfer any risk to the yet to be determined contractor. The contractor is not involved at this point in time and, so, has no involvement in the decisions being made.

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