Small Words, Big Consequences – The Hidden Dangers in your Contract

Mark Twain famously observed, “The difference between the almost right word and the right word is really a large matter - it’s the difference between the lightning bug and the lightning.” Perhaps nowhere is word selection more important than when drafting contracts.   

As a design professional, the standard of care is your most important legal protection and one that is not afforded to contractors.  It acknowledges that architecture and engineering involve inherent complexity, and it measures your performance not against perfection, but against what a similarly qualified professional would do under comparable circumstances. Your professional liability insurance is built around this standard.  But a few poorly chosen words can erode this protection or, even worse, eliminate it entirely.

Warranties and Guarantees

Words like “warrant,” “guarantee,” “ensure,” “assure,” and “certify” suggest a promise of specific outcomes.  However, the standard of care does not work that way.  It evaluates whether your services reflected the skill and judgment that peers in your discipline would ordinarily exercise. When warranty language appears in a contract, it can open the door to breach of warranty claims that fall outside the protections your insurance and the standard of care were designed to provide.  Consequently, these terms should be stricken or modified to limit their application.  In addition, your contract should expressly disclaim warranties as to your services to ensure against any ambiguity.  The EJCDC utilizes the following concise language: “Engineer makes no warranties, express or implied, under this Agreement or otherwise, in connection with any services performed or furnished by Engineer.”  EJCDC E-500 at 6.01.

Heightened Standards

Descriptive words such as “best,” “highest,” or “first-class” should be stricken when defining your services.  These create an exponentially elevated and subjective benchmark that goes beyond what the ordinary standard of care requires.  The result is greater exposure to liability and, in many cases, gaps in your professional liability coverage due to policy exclusions for obligations you have voluntarily assumed by contract.

Absolute Language

Be equally cautious with words such as “all,” “any,” and “complete” as they can quietly expand your obligations well beyond what was intended.  Ensure that their use is consistent with your contractual commitments and, if not, delete or carefully define and limit them. 

The Bottom Line

Every word in a contract carries weight. Careful word selection is not just a matter of style - it is a key component of effective risk management.

Sean Ryan, Esq., Aff. SARA

Sean Ryan, Esq. is a partner at Bardsley Law, a law firm dedicated to the representation and furtherance of the design professional community. In addition to his role at Bardsley Law, Sean is the National General Counsel for the Society of Registered American Architects (SARA). Sean routinely drafts, negotiates and provides guidance on complex construction contracts across all 50 states through the Contract Workshop at Bardsley Law. Please do not hesitate to contact Sean at sryan@bardsleylawfirm.com or (610) 804-3499 with any of your contract needs. Further information as to the Contract Workshop can be found at: https://bardsleylawfirm.com/contract-workshop.html