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July 1, 2022

Contractual Battles for Higher Ground: Case Examples

Ottesen, Jeffery L.; Migliaccio, Giovanni C.; Wulfsberg, H. James. (2016). Contractual Battles for Higher Ground: Case Examples. Journal Of Legal Affairs And Dispute Resolution In Engineering And Construction, 8(1).

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Dispute resolution requires pursuit of mutual agreement and implies accordant resolve between the disputing parties. In truth, mutual agreement stems from acceptable risks and negotiated terms centered upon equity arguments wherein the parties assess, evaluate, negotiate, and battle for high ground. Where the parties clearly understand their respective positions relative to the applicable laws, facts outweigh emotions, and the parties are more likely to avoid disputes. This paper defines high ground based upon legal theory in quantum meruit, which means, as much as he deserves. Equity arguments can trump written contractual provisions. Owners, architects, engineers, and contractors must become wise to these arguments to protect its shareholders' interests. To promote understanding, five different case scenarios are presented using actual disputes experienced on (1) notice provisions, (2) cumulative impact claims, (3) no damages for delay clauses, (4) acceleration, and (5) owner review durations. These case scenarios demonstrate that acquiring high ground requires clear understanding and synchronization of both the contract and the applicable governing laws. Ultimately, the party possessing higher ground will find itself in a more favorable position when disputes occur. (c) 2015 American Society of Civil Engineers.


Legislation; Subcontracting; Disputing Parties; Equity Arguments; Legal Theory; Quantum Meruit; Contractual Provisions; Architects; Notice Provisions; Cumulative Impact Claims; Owner Review Durations; Governing Laws; Engineers; Contractors; Dispute Resolution; Contractual Battles; Project; Equity; Delay; Contractual Notice; Cumulative Impact; Total Cost Claim; No Damages For Delay; Acceleration