Parties involved in a construction project can expect to spend much energy and effort to finalize the terms and conditions of a contract. Although those terms usually carry great weight in any contract dispute, of equal or greater importance can be the parties’ actions and course of dealing during construction. A lack of strict adherence to the terms of the contract or the adoption of behaviors during construction not consistent with, or that in some way deviate from, the contract processes or procedures can cause a party to lose a right or duty afforded it in the contract through “waiver-by-conduct.” In my latest article for the Daily Journal of Commerce, I look at this concept in greater depth and provide a hypothetical situation that illustrates it with respect to a failure to properly execute written change orders. Read the full article here.
Originally published as “OP-ED: That contract might not be ironclad: a primer on waiver by conduct” by the Daily Journal of Commerce, Oct. 17, 2019.