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.

Photo of Bart Reed Bart Reed

Bart Reed is a partner in the firm’s Seattle office and practices with the Real Estate and Construction group. With extensive experience in complex commercial and construction law, multistate litigation and ADR (representing clients in 28 states), Bart focuses his practice on construction…

Bart Reed is a partner in the firm’s Seattle office and practices with the Real Estate and Construction group. With extensive experience in complex commercial and construction law, multistate litigation and ADR (representing clients in 28 states), Bart focuses his practice on construction and design issues and disputes, representing owners, developers, contractors, subcontractors, design professionals and sureties, in diverse matters on both public and private projects. His experience covers a wide range of issues affecting design and construction clients, including contract drafting/negotiation, non-payment and surety claims, construction liens and payment bond claims, design disputes, construction defects, and scheduling issues in the defense and prosecution of delay/impact claims.

Click here for Bart Reed’s full bio.