“Pay When Paid” Provisions May Not Be Dead, at Least Not Yet

Businessman handing someone money

A “pay if paid” provision is one in which a higher tier party agrees to pay a lower tier party “if” it is paid in turn by a still higher party.

August 24, 2020
Garret Murai - California Construction Law Blog

Sophisticated contractors know that in California contractual “pay when paid” provisions are enforceable but that “pay if paid” provisions are not.

“Pay If Paid” v. “Pay When Paid” Provisions

A “pay if paid” provision is one in which a higher tier party agrees to pay a lower tier party “if” it is paid in turn by a still higher party. Most commonly they are found in subcontracts between general contractors and subcontractors and provide that the general contractor will pay the subcontractor “if” the general contractor is paid by the project owner. However, they can also be found in subcontracts between higher and lower tiered subcontractors and between subcontractors and material suppliers and equipment lessors. In California, such provisions, which create a condition precedent to payment, namely, a condition that must precede payment to a lower tiered party, are void as a matter of law.

Mr. Murai may be contacted at gmurai@nomosllp.com



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