Question

. The contract indicated only silty and blue clays and a small amount of shale would be encountered on the site. A large quantity of shale was actually encountered instead of the silty and clay material. The contractor had intended to use the excavated material of silt and clay for fill at another location on the job, however, the excavated material would not compact well and the contractor had to purchase fill from another source at a cost of $40,000. Is the contractor entitled to damages of $40,000 from the owner? a. Applicable rule: b. Your analysis:

Answer 1

A) Applicable rule here is that whatever the contract states, the material should have been exactly the same. Any deviation from a contract can be entitled to payments that can be filed legally.

B) My analysis here would state that the owner should have provided the material as the contract stated i.e. silty and blue clays and only a small amount of shale. The contractor should have stopped and brought up the contract at this incident only. But he proceeds to use that material on some other location and purchases another material. This should not have been done by the contractor as this wasn't mentioned in the contract and there was no consent from the owner. Technically seen from the contract's perspective, the contractor is not entitled to damages of $40000 from the owner because he deviated from the contract to make the purchases instead he should have raised concerns ono recieving the incorrect material itself.