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35 Constr. Law. 6 (2015)
Delay Damages and Site Conditions: Contrasts in US and English Law

handle is hein.journals/conlaw35 and id is 114 raw text is: ENGLISH LAW/DAMAGES FOR DELAY/SPEARIN DOCTRINE.......... Delay Damages and Ste Conditions: Contrasts in US and E~nglish Law By, Juliin Baikey and Stephen A. Htess Julian Bailey Stephen A. Hess Abraham Lincoln was once asked by an aspiring lawyer, John Brockman, how he should go about learning the law, Lincoln's short reply was as follows: Dear Sir: Yours of the 24th. asking the best mode of obtaining a thorough knowledge of the law is received. The mode is very simple, though labo- rious, and tedious. It is only to get the books, and read, and study them carefully. Begin with Blackstone's Commentaries, and after reading it carefully through, say twice, take up Chitty's Pleading, Greenleaf's Evidence, & Story's Equity &c. in succession. Work, work, work, is the main thing. Yours very truly A. Lincoln.' The headline message to work, work, work bears as much relevance today as it did in antebellum America. But what is also noticeable, and perhaps even surprising to our modern modes, is Lincoln's reference to leading English treatises as sources of law and iearntng for Amer- ican lawyers. Sir William Black stone's (.oninentaries on the Laws of England had been in publication for almost a century. And no doubt a comprehensive work on English law would be essential to every pre-Revolutionary American lawyer, but Julian Bailey is a solicitor at White & Case LLP London, and is Chairman of the Society of Construction Law (UK). Stephen A. Hess is an attorney at Sherman & howard L. L. C in Denver, Colorado, and is editor of The Construction Lawyer, the ABA' construction law review. its relevance could perhaps be expected to diminish sig- nificantly in the interve:,ing years following independence. Moreover. Joseph Chitty's T-eatise on Pleading first pub- lished in England in 1808 had not only traveled from old England to its former North American colonies, but it had taken hold as an essential guide to every litigious lawyer. What is evidenced in Lincoln's short missive is the enduring bond between English law and the laws of the Unitedl States. This provokes the question: How close or divergent are the paths that the law has taken in both nations in subsequent decades? The task of comparing English and American laws would be a profitable if exhausting one, and one in which an American lawyer would find much that lie recognizes in English law, and vice versa. Our task, however, is not to highiight areas of American and English construction law on which there is commonality, but to do the very opposite. In this article we seek to address two aspects of construction law in the U.nited States and England where divergences have developed. The first concerns no damage for delay clauses (also referred to as no damages for delay clauses). These are well known to American construction lawyers but are unheard of in English contracts. Given their potentially serious conrsequences, issues concerning the entorceabil- ity of such clauses have arisen in the United States. We consider those enforceability issues, and also how they might be approached from an English perspective. 'The second arises out of a common issue in construe- ton and engineering projects. If a contractor enters into a contract to build a structure according to the design prepared on behalf of the employer (or owner as denominated by Americans), is the contractor entitled to relief or compensation should the design contain errors that result from inadequate consideration having been given to site conditions, or when subsurface conditions differ from those anticipated by the contractor? As we shall see, the answers to this question given under US and English law are different. No Daniages for Delay The American Position It is an interesting endeavor to try to characterize the American law concerning a particular subject because the phrase the American law is inhm'ently misleading. Contract law is formulated in 51 different jurisdictions the 50 states plus the federal government and some Published in The Construction Lawyer, Volume 35, Number 3, Summer 2015 © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 6

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