This paper illustrates that in determining "who should bear the loss" the courts (despite semantic differences) are united by a common "ratio decidendi" running through cases, whether highway or nonhighway. This paper also shows that the hinge of decision in the cases is whether or not on all the facts, as opposed to isolated facts, the contractor is able to show that he was justified in relying on the State's representations. If he can so establish he may claim a warranty that conditions will be found as represented, and if he cannot so establish, he may not claim such warranty. The cases turn on the resolution of this question. Considerations that should be kept in mind while preparing highway construction contracts are listed. These considerations relate to the manner of presentation of disclosures, the pitfall of nondisclosure, disclaimers of critical representations, time for thorough investigation by the contractor, the avoidance of ambiguities and inconsistencies, and the demonstration of good faith by the state. Questions that should be considered in preparing the defense of a suit against the state for breach of warranty as to subsurface conditions are also listed.


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Filing Info

  • Accession Number: 00178353
  • Record Type: Publication
  • Files: TRIS, TRB
  • Created Date: Aug 31 1998 12:00AM