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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