The purpose of this Comment is to urge the California legislature to revise section 7102 of the Public Contract Code in order to render an NDFD ("no damage for delay") clause void as against public policy in every construction contract when delay is caused in whole or in part by the acts or omissions of the owner or its agents.
Part I of this Comment provides the reader with a brief explanation of how construction contracts are formed and describes the nature of liability associated with delay in the construction industry. Part II includes a brief overview of the general enforceability of NDFD clauses and chronicles the numerous exceptions to their enforcement that have evolved through common law and state statutes. Part III presents policy arguments against the enforcement of NDFD clauses and rebuts some common arguments posed in favor of their enforcement. Part IV discusses the current treatment of NDFD clauses in California and challenges the effectiveness of existing legislation in the wake of Harper/Neilson-Dillingham. Part V presents suggested language for the revision of section 7102, modeled on the current Ohio Revised Code Annotated, and explains the practical effect of the proposed revisions. Finally, this Comment concludes by urging the California legislature to revise California Public Contract Code section 7102 to render NDFD clauses unenforceable in all public and private contracts where the owners cause delay.
Cite as 42 Golden Gate Univ. L. Rev. 283 (2012).
Bargaining in the Dark: Why the California Legislature Should Render “No Damage for Delay” Clauses Void As Against Public Policy in All Construction Contracts, 42 Golden Gate U. L. Rev.