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Remember Your Shield: The Right to Cure

Remember Your Shield: The Right to Cure
Pat Dickson - Fri Jun 22, 2012 @ 06:31AM
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Remember your shield! The right to cure.

Remember the Spartans! They were the finest ancient Greek hoplites, around 500BC. Each possessed a panoply of armor, spears, and a short sword. Trained for years to fight as a single armored unit, they were virtually unstoppable. To put down just 300 of them at the Battle of Thermopylae, it took the Persians a week and 1,000,000 men.

A Spartan's shield was his most important weapon, and it was his most important piece of armor. It protected him, and it protected his comrades. It warded off most enemy blows and arrows. Seldom did his other armor take a hit, so effective was he trained with his shield. He could even use it to fight, and to kill. With his shield, a Spartan and his phalanx of fellows could beat down the enemy and trample them en masse. They would often win entire battles not by the sword or spear, but by the shield.

right to cure, subcontract, shield

At Thermopylae, mentioned above, just 300 Spartans used their shields to bash and push 1000s of Persians off the cliffs and into the sea. If all a Spartan had was his shield, and all his other weapons and armor were broken or beaten away, he still had the most important part of his arsenal. He still had his best weapon and his best defense.

Remember your shield! It is not just an important piece of armor but a weapon as well. 

Now you may be wondering what a shield has to do with the right to cure. Good question! As a subcontractor, or even as a contractor, the right to cure is often your only weapon and defense. Why? You know why. We've all been stuck in a situation where our customer (either a contractor or an owner) throws a 100+ page contract at us and says:

"Take it or leave it! We don't allow any changes."

The problem is you are very concerned about signing this 100+ page monster, called a subcontract or contract or prime contract, because there are innumerable terms in it that are clearly to your disadvantage. Steep liquidated damages, 100% indemnity, the owner or contractor's right to accelerate your schedule, the right to add costly work to your scope without a written change order, or clauses allowing material or install specification disputes to be resolved as the contractor or owner determines, all at your cost! The list goes on and on.

In the end, the risk is that your 20% margin job could turn into a losing job pretty fast, were some of the arrows, spears, and swords in your customer's arsenal used against you. In such situations, you need a shield, right?

The right to cure can be your shield. Sometimes it will be all you can take to a job site.

In numerous cases, I've confronted 100+ page contracts that just weren't fair to my client. The contractor or owner would not budge on any terms. Though the contract was dangerous and risky to my client there was nothing I could do to negotiate acceptable terms. No matter what I tried to do to make changes to the contract, I was met with the same responses.

"No changes allowed!"

"You have to sign our contract as-is!"

"By bidding the job you agreed to not make any changes."

"It is our policy. No changes!"

In such cases, with a little pleading, I've often been allowed to have my shield. The right to cure.

"Can my client just have one term added that will help both of us make sure the job goes well? It is just a notice. It will help keep us out of court and working together in a friendly manner. Kind of like a bi-weekly meeting to help your client make sure my client stays on the critical path, does quality work, and doesn't misunderstand anything in the scope for too long - so costly damage is hopefully avoided."

"Ok, what is it?"

"We'd like 2 weeks written notice to cure before you hit us with anything in the contract. That way all communication channels remain open. Mistakes are caught on time."

"Ok, let's hear it."

"Let's put the following in the contract:"

"Notwithstanding any other term in the Subcontract or Contract Documents, Contractor shall give Subcontractor two (2) weeks prior written notice to cure before any available remedies are asserted against him."

"Alright, that sounds fair enough."

Then you have your shield! The Right to Cure.

Now, when your customer sends you a nasty letter telling you you owe liquidated damages, you deflect his blow with your shield!

"You didn't give me 2 weeks written notice to cure!"

When you are told to accelerate your schedule because in your customer's subjective discretion (according to the contract) you are falling behind, you can block his spear thrust! 

"You didn't give me 2 weeks written notice to cure!"

See how the Right to Cure is a great shield?

A lot of lawyers will disagree with what I've said herein. "That really doesn't protect you in court," they claim. Maybe they are right in some cases. However, most cases don't go to court. They get resolved without the cost or time sink of going to a judge or jury.

Having a right to cure inserted into your contract as a shield, as I've recommended, throws a wrench into your contractor or owner's customary use of his onerous contract terms against you. When he tries to bully you with mean contract terms, as he does with his other contractors, you can hold up your shield and deflect the blow.

"Right to Cure!" you point to the single term he allowed you to put into the contract.

Here, two things often happen. First, you stop your aggressor in his tracks. 

"Right to cure, what?" he'll say.

Then he'll look at the contract and scratch his head. Oh no, now I have to call my lawyer, he'll be thinking. Or, this is going to be a mess... This deflection often provides a cool down period for your customer so he can rethink what to do next.

Second, he'll often cool down and send you a notice to cure letter in a few days, just as the contract provides. Maybe he'll do so after consulting his lawyer, and maybe he'll do so after deciding he wants to skip the steep legal fees.

But the net result of your having a defense will be your having 2 weeks to fix the problem. Hopefully your customer will be happy in the end, and you'll be friends again. The project will end well.

Remember your shield! The right to cure.

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