Contracts of Relation

Ryan Fergus, Contract Law: (Nutshells) (Dublin: Thomson Round Hall, 2003).

Robert Reich, Saving Capitalism: For the Many and Not the Few (New York: Alfred A. Knopf, 2015), 54. As a recent example of this, as The New York Times reported on October 24, 2017, “Senate Republicans voted on Tuesday {October 24, 2017} to strike down a sweeping new rule that would have allowed millions of Americans to band together in class-action lawsuits against financial institutions.” Continuing: “The overturning of the rule, with Vice President Mike Pence breaking a 50-to-50 tie, will further loosen regulation of Wall Street as the Trump administration and Republicans move to roll back Obama-era policies enacted in the wake of the 2008 economic crisis….The rule, five years in the making, would have dealt a serious blow to financial firms, potentially exposing them to a flood of costly lawsuits over questionable business practices.” ➝.

Quoted in Jay M. Feinman, “Ambition and Humility in Contract Law,” Revisiting the Contract Scholarship of Stewart Macaulay: On Empirical and the Lyrical (Oxford: Hart Publishing, 2013), 146.

For an extended discussion of this view point, see Thomas Barton, “Flexibility in Contracting: Introduction”, Lapland Law Review 2015, Issue 2 (2015), ➝.

“Exchange is the inevitable product of specialization of labor, however that specialization of labor may occur. Whether in a factory, in a commune, within a corporation, between discrete entities in markets, or within a family, exchange will occur as long as specialization exists.” Ian R. Macneil, “Relational Contract: What We Do and Do Not Know,” Wisconsin Law Review, 1985,484-52, Wisconsin Law Review. (1985): 485, ➝.

“Nowhere is the actual production of {Adam Smith’s} pins conducted by discrete exchange.” Ibid., 486.

“Even if one believes that rights of property and liberty are conferred on man as a matter of the natural law of a deus ex machina, as a practical matter, rights of liberty and property come from society, including its formal manifestation in the State.” Ian R. Macneil, “Bureaucracy and Contracts of Adhesion,” Osgoode Hall Law Journal, vol. 22, number 1 (Spring, 1984): 20, ftnt 33.

The American AIA Official Guide to the 2007 AIA Contract Document, (Hoboken, NJ: Wiley and Sons, 2009), vii.

Ibid., 13.

Ibid., 25

Howard Ashcraft, written in an email November 13, 2017.

As Phil Bernstein, an architect working in the AIA Contracts Committee in the years of Building Information Modeling, indicates, in more recent years, “the lack of a contract between the architect and contractor was intentional: contractors began suing architects in the 1980s extensively, and one theory architects used successfully was to assert that there was no contract privity between the architect and the contractor. This prevented, for example, lawsuits asserting that the architect’s malfeasance damaged the contractor’s business (by delaying one job and preventing the contractor from getting other). Written in an email on November 13, 2017.

“A History of AIA Contract Documents,” ➝.

Told to me in a phone conversation on October 22, 2017.

➝. Ballard Spahr Andrews & Ingersoll, LLP, a national award-winning law firm identifies the top ten issues that require the owner to rework the standard AIA contract: “1. Identify the contract documents and limit owner-provided information; 2. Include a requirement to provide and maintain key personnel; 3. Make clear who is designing all portions of the project and address the issues that flow from contractor designs; 4. Expand the indemnification provision to include protection against liens, governmental fines and/or other losses, including those arising out of the contractor’s breach of the contract; 5. Remove the architect as the arbiter of the contract and delete the artificial statute of limitations; 6. Delete the so-called “mutual” waiver of consequential damages by the owner 7; Clarify your payment terms, including change orders and periodic payments; 8. Review and revise the provisions regarding insurance and bonding; 9. Termination for convenience should be just that and not a windfall for the contractor; 10. Recognize the lender and provide for its needs,” ➝.

Standard AIA documents list architectural “Basic Services” as schematic design, design development, construction documents, bid phase services, and construction phase services.

Ibid., 34–5.

Howard Ashcraft was reading about the work of Macneil and Macaulay. Told to me in a phone conversation on October 22, 2017.

In one group’s “Agile Manifesto,” they declare that value should be placed in “individuals and interactions over processes and tools; working software over comprehensive documentation; customer collaboration over contract negotiation; responding to change over following a plan,” ➝.

The LCI is a construction non-profit begun in 1997 that claims to be “a response to customer and supply chain dissatisfaction with the results in the building industry. Construction labor efficiency and productivity has decreased, while all other non-farming labor efficiency has doubled or more since the 1960s. Currently, 70% of projects are over budget and delivered late. The industry still sees about 800 deaths and thousands of injuries per year. The industry is broken.” Emphasis theirs, ➝.

Different versions circulate regarding who did what first and when. At the national level, members on the Contracts Committee, including Phil Bernstein, the future vice president of Revit, also had their eye on new software developments and were working on a project called Integrated Project Design.

Ashcraft, written in an email, November 13, 2017.

Ibid., Macneil, “Relational Contract,” 524, ftnt. 186. IPD has these following five elements: the early involvement of at least the owner, architect, and contractor (and possibly subcontractors who have a significant effect on the project outcome); jointly developed and validated targets; shared risk and reward based on the project outcome; joint project control; and, most significantly, the agreement to avoid litigation.

Contingencies can be written into the contract, but they go against the spirit of motivating a true assessment of what will be the target cost and what the owner can knowingly put away and on what basis. It goes against the spirit of laying bare all of one’s knowledge and putting the rest at risk in profit.

This is an insight made by Ashcraft that he links to similar issues and potential solutions in lawyers in arguing for their value when hired.

Ashcraft says that others, including Rene Cheng who has devoted herself to architect/construction collaboration as well as stronger ties between academia and the profession, believes that starting with the AIA contracts and implementing revisions is a necessary step in educating them about what really is at stake.

“Correctly designed, {IPD} stimulates behaviors that increase creativity, improve productivity, reduce waste, and lead to better outcomes…” Quoted in Martin Fischer, Howard Ashcraft, Dean Reed, and Atul Khanzode, Integrating Project Delivery, (Hoboken, NJ: Wiley, 2017), 365.

See Ian R. Macneil, “Bureaucracy, Liberalism, and Community – American Style,” Northwestern University Law Review, vol. 79. 5 and 6 (1985).

He quotes the economist Daphne Greenwood: The full quote is: "The term 'species being' (Gattungswesen) is used by Marx to refer to a state of reciprocity in which human beings are seen as ends and not as means by each other, in contrast to the hedonistic views of ‘homo economicus.” Ibid., 935, ftnt. 133

Ibid.

See Ernesto Laclau and Chantal Mouffe.Hegemony and Socialist Strategy: Towards a Radical Democratic Politics (London: Verso, 1985). It is “radical” in the sense that, at its root, democracy, if based on freedom and equality, must include difference and dissent. This embrace of difference is what challenges neoliberal and neoconservative dogma.

Ibid., 935. Regarding Macneil’s personal politics, as the forty-sixth Chief of Clan Macneil of Barra in Scotland, he gifted the crofting estate of Bara to the Scottish nation and his granted a lease of the mediaeval Kisimul Castle to Historic Scotland for 1000 years at the annual rate of one pound and one bottle of whisky, ➝.