Masonry Magazine October 2003 Page. 36
LEGAL
All specification requirements relating to time to ensure that your scheduling submissions meet the specifications.
Notice of Claims
Perhaps the most critical contract term relating to delay claims is notice of claims. Most contracts contain provisions with a specific deadline for submission of claims. Failure to adhere to the requirements of notice of claims may eliminate your claim before you even raise it.
"Time is of the Essence"
A "TIME IS OF THE ESSENCE" clause basically converts all delays in performance to material breaches of contract. The legal import of a breach being material is that it permits recovery of damages and possibly termination depending on the facts. A minor breach of contract that is not "material" does not necessarily permit recovery of damages and does not excuse the contractor from performing the remainder of the contract.
"No Damages for Delay"
Some contracts contain a "no damages for delay" clause. Other contracts contain express limitations on delay damages or provide that only time extensions may be granted for delays. Failure to adhere to the requirements of notice of claims may eliminate your claim before you even raise it.
On their face, a no damages for delay clause could be fatal to delay-based causes of action. There may still be a question as to whether some types of "delay" style damages may be asserted even if you have signed a contract with a no darnages for delay clause.
For example, if you are required to accelerate and add crews to stay on schedule due to owner-caused delays, these increased expenses may be direct damages and not fit into the definition of "delay" damages under the laws of your state and the terms of your contract.
In addition, some states are not supportive of these types of clauses. The enforceability of such a clause will depend on the law that applies to your project. Finally, some state legislatures have enacted specific legislation limiting the applicability or enforceability of no damages for delay clauses.
Some Practical Tips
There are some practical points about delay claims that must be emphasized.
First and foremost, delay claims are complicated and expensive. Rather than presenting a single issue, delay claims force your lawyer to understand literally every day on the job to defend or