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1. If the builder refuses to accept the man's services, which of the following clauses in the expert-builder contract will best support the builder's contention that the expert's duties under the contract were not delegable without the builder's consent?
With ample time remaining under the contract for commencement and completion of his performance, the expert notified the builder that he was selling his business to a man who was equally expert in lifting and emplacing equipment atop tall buildings, and that the man had agreed to «take over the expert-builder contract.»
An expert in lifting and emplacing equipment atop tall buildings, contracted in a signed writing to lift and emplace certain air-conditioning equipment atop a builder's building. An exculpatory clause in the contract provided that the expert would not be liable for any physical damage to the builder's building occurring during installation of the air-conditioning equipment. There was also a clause providing for per diem damages if the expert did not complete performance by a specified date and a clause providing that «time is of the essence.» Another clause provided that any subsequent agreement for extra work under the contract must be in writing and signed by both parties.
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Generally, all contractual duties may be delegated by the party with the duty to perform the obligation (called the delegator) to a third person (known as the delegate). However, some duties are considered non-delegable, including where: (i) the other party has a substantial interest in having his original promisor perform the acts required by the contract; (ii) the contract involves special judgment or particular skills; (iii) the delegatee is a competitor of the obligee or there is a special trust or relationship between the delegator and obligee; or (iv) there is a contractual restriction on delegation.
A is correct. The exculpatory clause holds the builder responsible for any physical damage caused by the installation of the air conditioner. It gives the builder a substantial interest in who is performing the work; the builder chose to hire the expert based on his skillset when it comes to carrying out these types of duties. Even though the expert assured the builder that the man has an equal level of expertise, the builder did not hire the man himself and has no other reason to believe that the man is equally skilled. As such, the builder would have a substantial interest in this delegation given that the man could end up causing more damage than the expert would have if he had been the one to perform. This would cause the builder to face greater liability for damage than he had expected when hiring the expert.
B is incorrect. The builder has no substantial interest in which party is responsible for paying the liquidated damages clause; the man taking over the duty to pay liquidated damages instead of the expert does not materially change anything about the contract for the builder. This clause does also not fall under any of the other non-delegable duties exceptions.
C is incorrect. The «time is of the essence» clause also does not meet any exceptions to the general rule of delegation. Furthermore, the liquidated damages clause in the contract already protects the builder if the installation is late, so the builder's expectations under the contract remain the same.
D is incorrect. The purpose of the extra work clause is to ensure that any subsequent agreement to extra work would have to be in a signed writing. This clause is not a basis for supporting the builder's argument that the duties were non-delegable without his consent.