Tag: contractor liability

Contracts are at the foundation of most modern commercial relationships—especially in construction and other trades. It is imperative that contractors have properly drafted agreements—including their pre-agreement estimates. Language matters. Here, our Fremont business contracts lawyer provides an overview of some of the most important legal language to include in contracts and estimates to reduce the risk of liability.

Indemnification Provisions

Legal protection for contractors often starts with a well-drafted indemnification clause. Broadly defined, an indemnification provision is a contract term that holds that one party is responsible for compensating the other party for any harm, loss, or liability. Any contract or estimate presented by a contractor should clarify indemnification. It is a big issue for contractors working with subcontractors or other parties on a project. For contractors, a well-drafted indemnification provision can help to shield you from third-party claims.

Limitation of Liability Clauses

Limitation of liability is another essential piece of legal language for contractors. In effect, this type of contract provision limits the total amount of liability of a contractor. These clauses can be enforceable in California. However, they must be properly drafted. Under California law (Cal. Civ. Code § 1668), contractors cannot limit their liability with regard to certain acts or omissions—such as gross negligence, willful misconduct, or certain statutory violations.

For example, imagine that a contractor violated certain health and safety laws during a project. As a direct result, their customer sustains significant damages. Not only does a new California law (AB 1747) raise the potential statutory penalties that a company could face to up to $30,000, but such a violation could also render a limitation of liability clause unenforceable.

Limitation of Damages Clauses

Similar in intent to the limitation of liability clauses, limitation of damages clauses explicitly define and often cap the damages recoverable by the other party. For instance, this type of contract term may stipulate that consequential damages cannot be sought. Under California law (Cal. Com. Code §2719(3)), a limitation of damages clause cannot be deemed unconscionable. If a limitation of damages is ruled unconscionable by a California court, it could be set aside.

Dispute Resolution Provisions

Dispute resolution provisions can also affect contract terms for companies to limit their liability risks. A key advantage of a well-drafted dispute resolution clause is that it can help a contractor

avoid the costs and unpredictability of litigation. These contract terms stipulate that parties agree to resolve disputes through methods like mediation or arbitration rather than going to court. For example, many contractors opt to include an arbitration provision in a contract. To be enforceable in California, this clause must be properly drafted.

Get Help from Our California Business Law Attorney for Contractors

Lynnette Ariathurai is a business lawyer with extensive experience drafting, reviewing, and negotiating contracts for contractors and construction companies. If you have any questions about reducing your liability risk, please contact us for a confidential initial consultation.