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12 Constr. Law. 1 (1992)

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Minimum Decencies-A Proposed Resolution of
The Pay-When-Paid/Pay-If-Paid Dichtomy
Gerald B. Kirksey

In a previous article, The
Pay When Paid/Pay If
Paid Dichotomy and the
Florida Trilogy-Bright
Line or Murky Fog?',
Sherrie Brown2 and I ex-
amined the development of
the pay-when-paid/pay-
if-paid dichotomy in ju-
dicial interpretation of
subcontract payment lan-
guage. After examining the  4
interpretation of subcon-
tract payment language in     Gerald B. Kirksey
three Florida Supreme Court cases as well as in other
leading cases, we concluded that no bright line exists to
guide attorneys and the courts in their interpretation of
subcontract payment language. In fact, the pay-when-
paid/pay-if-paid distinction is artificial and ultimately
refers to the result reached by a court.
The phrase, pay-when-paid, commonly refers to sub-
contract payment language that has been held to merely
delay the time of payment by a general contractor to a
subcontractor; a general contractor's duty to pay a sub-
contractor, within a reasonable time after subcontractor
has completed performance, remains absolute, even if a
general contractor never receives payment from an
owner. Conversely, pay-if-paid subcontracts have been
held to make a subcontractor's payment contingent upon
a general contractor's receipt of payment from an owner.
Actual payment language varies widely, and courts have
had difficulty applying the pay-when-paid/pay-if-paid
distinction. One court may find that specific subcontract
payment language establishes an absolute duty by the
general contractor to pay the subcontractor, while an-
other court may find that, under almost identical lan-
guage, payment by the owner to the general contractor
is a condition precedent to the general contractor's duty
to pay the subcontractor.'
Since this article will suggest a new and radical ap-
proach to the interpretation of subcontract payment
clauses, the pay-when-paid/pay-if-paid distinction will

be abandoned; subcontract payment clauses will simply
be referred to as either absolute-duty or contingent-
payment clauses.
The Storm Clouds Swirl
Few construction industry issues have been more div-
isive than the present debate over the use of contingent-
payment clauses in subcontract forms. As general con-
tractors (and their attorneys) seek clear, unmistakable
contingent-payment subcontract language, subcontrac-
tor organizations have made the elimination of pay-if-
paid contract clauses a top priority.4
In a major victory for subcontractors, the General As-
sembly of North Carolina, in its 1991 session, adopted
a law that states:
Performance by a subcontractor in accordance with the
provisions of its contract shall entitle it to payment from
the party with whom it contracts. Payment by the owner
to a contractor is not a condition precedent for payment to
a subcontractor and payment by a contractor to a subcon-
tractor is not a condition precedent for payment to any other
subcontractor and an agreement to the contrary is unen-
forceable.,
(continued on page 40)

Copyright © 1992 American Bar Association

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