A contractor wants to add a clause in which both parties mutually waive consequential damages. Do y'all see this sort of thing very often in the contracts you review?
That's a new one. We usually get a proposed contract under which we're barred from seeking consequential damages, but the contractor is free to seek anything under the sun, with LGC section 262.007(c) to be disregarded as a trifle. Not that we agree to it, but we do usually get the time-tested "every other county accepts this" pickup line.
Lets start with the definition:
(b) Consequential damages resulting from the seller's breach include(1) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise; and(2) injury to person or property proximately resulting from any breach of warranty.
Tex. Bus. & Com. Code Ann. § 2.715 (West)
The contractor's waiver of these damages against the county is not much since you are not warranting goods or services to him and the other damages defined are not usually your problem. Other clauses in the contract define delay damages et cetera. So the contractor gets his. (I presume this is construction contract.)But your waiver is a big deal since warranty of the quality of construction is pretty important. We may waive these damages by the way but get a one year warranty to repair any items that break. I would expect you should ask for that express warranty if you waive these damages. There may be need for other express warranties. Other damages you waive are interest costs on the money if you have to start paying interest while the project is delayed thru the contractor's ineptness.
Thanks, Ray and Scott.
The contract is for a small amount of money, but if the county relies on their work and it leads to a costly construction mistake, I want the county to be able to recover any damages. Am I being unreasonable?
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