A Green Spearin Doctrine
Over the weekend, while writing a response to a Summary Judgment Motion, I was reminded of the most important legal principle in construction law. Under the Spearin Doctrine:
"If [a] contractor is bound to build according to plans and specifications prepared by the owner, the contractor will not be responsible for the consequences of defects in the plans and specifications."
United States v. Spearin, 248 U.S. 132, 39 S.Ct. (1918).*
What does this have to do with green building?
Generally speaking, if a contractor agrees to build a green building project according to the plans and specifications and it does so, the contractor will not be responsible for any subsequent problems.
Of course, this won't always be the case. Some contractors will also guarantee LEED certification. If a contractor were to guarantee LEED certification, that contractor might be required to achieve LEED certification regardless of the project design. The contractor could build according to the plans and specifications, not achieve LEED certification due to some design error or omission, and the contractor might still be on the hook for the failed certification.
Do you see the problem there?
*Today marks what I believe is the first case law ever cited on Green Building Law Update. We are 150 entries in and I managed to never cite to case law. That is either extremely impressive or embarrassing.
Photo: SnoShuu
I'm going with impressive! But you realize once you start citing cases, you just can't stop.
Interesting take on Spearin. Will the green guarantee take the contractor outside of the cocoon of building to the plans? Sounds like good work for us construction lawyers.
You picked a classic with which to break the citation ice. Of course, it helps that there are no real cases to cite!
I agree with Chris that the tension between Spearin and these new waves of bidding protocols are apt to create some very interesting issues in the future.