Time is of the Essence Provision
When a timely completion of a construction project is important, the construction contract may include some form of a scheduling requirement. The more sophisticated the project, the more likely the project timeline commitments will be specifically stated in the agreement.
This contractual provision is commonly referred to as “time is of the essence”.
The level that a court will enforce a “time is of the essence” provision will depend upon several factors, such as the intent of the parties based on the language used in the contract and the circumstances of the event.
For instance, when a time delay causes loss of performance it can cause irreparable damage in lost profits. Immediate action is necessary to resolve the issues that cause such delay in order to mitigate loss of time and achieve the calculated profits.
A factor that may be consider could be ‘Changed Conditions’. This can arise on construction projects from issues that were not known or disclosed at the time the parties entered into contract. These issues can arise from several factors such as subsurface obstructions or other hidden conditions or unknown factors that can substantially interfere with a contractor’s ability to perform.
Also, there may be scheduling changes or conflicts that directly affect a party’s performance and the ability to properly allocate manpower in an efficient manner. A simple unanticipated change in a project can disrupt the balance and timing that may affect several construction parties. These issues become more complex, for example, when a party who is contracted in multiple unrelated projects suddenly experiences the imbalance of a single schedule change in one project that can cause a devastating economic ripple effect in the other unrelated projects. Even the smallest of these types of issues require immediate legal attention to minimize the financial hemorrhaging that accompanies lost time on a construction project.
Whether you are an owner, contractor, subcontractor, design professional, developer or material supplier, you need an Attorney who can understand your specific construction profession and negotiate and draft contracts accordingly.
At the Law Offices of Rodriguez Rendina, we are prepared to examine all available construction law options to best prepare your business for issues that may arise and protect your business and its rights when they do.
Information in this post should be confirmed through an attorney and is for informational purposes only.