In 1979, virtually all projects were completed under form contracts. As I started practicing construction law, it seemed that most form contracts were generally fair. They were negotiated by industry groups and over the next 10-20 years they appeared to become fairer. We could and did compare provisions in the AIA documents, the Federal contract forms, and the EJCDC agreements. When we did, we found subtle differences, but broad similarities in their approach to contract risk allocation.

Today many (most?) private projects are done with “manuscript” contracts – instruments tailored to the owner’s interests. And many public entities have developed their own contracts. And not all those clauses seem so fair.

This month I focus on contract clauses that I consider unfair. And while unfairness, like beauty, may be in the eye of the beholder, I think that the clauses described below aptly fit that descriptor.