Is this clause valid?

kalimba · Sep 7, 2005

MA

Hello.

We contracted to have a shed built on our property, paying 40% up front two months ago. The contractor has been unreliable and not very communicative, and I learned today that he has a bad BBB rating.

The contract says that a full refund is only awarded if canceled before 7 days of construction. I called today to inquire about a refund of the deposit and he said that the materials were ordered yesterday and the project is planned for 7 days from now.

My question is this:

When I reread the contract (my husband dealt with it initially), it states that the balance is due upon arrival on site, not upon completion of the project.

Is this legal? It seems to me that some payment should be withheld until the project is complete.

Also, if he does not show up again, what recourse do I have? The down payment was about $1700.

Additionally, when I spoke to him today, he said that he has hired subcontractors to do our project. I told him that I contracted with him and wanted him there. His response to that was vague.
Is this legal for him to do this and does it change any of the other issues?

Thanks for any advice.

divgradcurl · Sep 7, 2005

The contract says that a full refund is only awarded if canceled before 7 days of construction. I called today to inquire about a refund of the deposit and he said that the materials were ordered yesterday and the project is planned for 7 days from now.

What you've written here doesn't make much sense. What exactly does the contract say about refunds?

When I reread the contract (my husband dealt with it initially), it states that the balance is due upon arrival on site, not upon completion of the project.

Is this legal? It seems to me that some payment should be withheld until the project is complete.

If you wanted to withhold some of the payment until the construction was compete, you should have addressed that in the initial contract. If you agreed to pay for the construction up front, well, that's what you agreed to. And yes, it's generally legal. You can check with the MA department of consumer affairs to see if they have some information on contractors -- a few states (certainly not all) have laws restricting how large a down payment you can be forced to make, etc.

Also, if he does not show up again, what recourse do I have? The down payment was about $1700.

If he breaches the contract before he does any construction, you can sue him in small claims court to get your deposit back. If he breaches after he begins construction, you can pay to have another contractor complete the project, and then sue the original contractor for any amount above and beyond the original contract price you had to pay. So, for example, if you had contracted to have a shed built for $5000, and you put $1700 down, and he breaches after starting construction, and you have to pay another guy $6000 to finish the project, you would sue for $6000 - $5000 = $1000 + $1700 = $2700.

Additionally, when I spoke to him today, he said that he has hired subcontractors to do our project. I told him that I contracted with him and wanted him there. His response to that was vague.

The general rule is that unless the contract specifically says that the work will be done by a particular person personally, then the contract is to get the shed built, not that the shed is to be built by a particular person. Virtually all contractors sub out at least part of the work they are contracted to do. Make sure that the contractor provides releases showing that he has paid the subs for their work.

Other than a breach of contract, the other issues you've raised -- paying up front and hiring subs -- are issues that, if they bother you, should have been handled up front before the contract was signed.

kalimba · Sep 8, 2005

divgradcurl said:
What you've written here doesn't make much sense. What exactly does the contract say about refunds?

The contract states "if the product is canceled within 7 days prior to construction, the purchaser forfeits the deposit."

So, when I called requesting a refund, he told me that he purchased the materials the day before and our construction date was in 7 days. For what it's worth, he was supposed to have come 2 times before and never showed up, so it might be assumed that the materials were already purchased? But, evidently not.

One more thing -
My husband reviewed the front of the contract with the vendor, and signed the bottom - it was one of those triplicate forms. We got one copy. All of these conditions are listed on the back of the page, which was never shown to him at all. At the bottom of the back side there is a spot for his signature, which is blank. Do you think this makes any difference? He told me that he was unaware of any of the conditions on the back side of the page.

Thanks again for any response. I'll always take more care in the future - I've never been burnt before so I guess I was naive.

Is this clause valid?

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kalimba

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kalimba

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