Careful What You Ask For: Ten Construction and Design Contract Provisions That May Be Unenforceable

Josh M. Leavitt, K&L Gates LLP and Daniel G. Rosenberg

It is not unusual to see contracts in the construction industry that shift risks downstream.  Especially in markets where new projects are scarce, contractors and design professionals often have little leverage beyond their particular expertise or their relationships to modify contract provisions that shift significant risk to them.

Legislatures have responded by passing a variety of construction specific statutes designed to “level the playing field.”  Examples of such legislation include Prompt Payment Acts (which are designed to protect contractors from slow payers), anti-indemnity acts (which limit the effectiveness of contractual indemnity clauses) and other construction “fairness” legislation.

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  • Thank you for such a well written and substantive blog post. As a practitioner of construction law and subcontractor law in Georgia it is vital that we educate our clients and the industry. So many construction professionals are not aware of the consequences of some of the contract terms they much sign.

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