Every generation has its own Batman, going back to the Caped Crusader’s first appearance in Detective Comics in 1939. Mine is Adam West from the campy TV series that debuted in 1966, ran for three seasons, and was in syndication by the time it became one of my favorite after-school shows.
One of that Batman’s hallmarks was his propensity for convoluted speech. Ideas that ordinary people would communicate in a few brief words would come out of Batman’s mouth as a complex statement salted with multisyllabic words and obscure phrases. A simple concept like “Let’s go!” would become “Time is of the essence, Robin! Let us proceed post-haste to the Batpoles!”
Some contract terms sound like Batman could have written them. Ostensibly in English, they stand out because no normal person would speak or write that way. While it is unlikely that Batman drafted your contract, there is another group of people notorious for weird expressions and arcane lingo: Lawyers.
When you run across one of these bizarre phrases, it is likely a legal term of art. It is easy to read a phrase like “time is of the essence” and think, “Well, duh, everybody knows time is important” and move on, but that is a mistake. Oddly phrased terms frequently turn out to be legal “magic words” that create all manner of unachievable and uninsurable obligations. They need to be reviewed with your own lawyer, so you know what you’re getting into.
Here are a couple of examples.
“Time is of the essence” is a quintessential Batman clause. By agreeing to this language, you guarantee that all stated time limits will be met, even if circumstances beyond your control make this impossible. This seemingly innocuous language can transform even a trivial deviation from the schedule into a material breach of contract, potentially entitling your client to claim damages or terminate the contract for cause.
“Time is of the essence” is a common provision in construction contracts, but they are inappropriate in professional services agreements because they make meeting the schedule of paramount importance, trumping any other aspect of the design professional’s performance. At times, designing to the professional standard of care means that a milestone date will not be met. It is not in the client’s best interest to prioritize timely delivery over non-negligent performance.
Avoid schedule guarantees like “time is of the essence,” and include provisions entitling you to equitable adjustments in the schedule for circumstances beyond your control.
The phrase comes from a part of the contract that is rife with lawyer lingo and Bat-phrases: the indemnity clause. Specifically, many clients want to be indemnified for all damages caused “in whole or in part” by the design professional. The fact that no one talks like that is your first clue that this language should be investigated.
This simple phrase is in reality a powerful risk-shifting clause. It means that if your actions caused any part of your client’s damages, you must indemnify your client for all damages, including those caused by your client, its consultants, or other parties beyond your control. Let’s say your negligence caused 60 percent of your client’s damages. An indemnity for damages you caused “in whole or in part” means that you will pay 100 percent. Your professional liability insurance will only cover the portion of damages caused by you, leaving the other 40 percent uninsured.
Be on the lookout for oddly phrased language, including Latin terms (e.g., “force majeure”), in your contracts, and be sure to have your legal counsel shine a Bat-signal on their meaning and potential implications for your firm.
Karen Erger is senior vice president and director of practice risk management at Lockton Companies. She also is a member of the ACEC Risk Management Committee and can be reached at firstname.lastname@example.org.
The material in this article is provided for informational purposes only and is not to be regarded as a substitute for technical, legal, or other professional advice. The reader seeking such advice is encouraged to confer with an appropriate professional consultant or attorney. ACEC and its officers, directors, agents, volunteers, and employees are not responsible for, and expressly disclaim, liability for any and all losses, damages, claims, and causes of action of any sort, whether direct, indirect, or consequential, arising out of or resulting from any use, reference to, or reliance on information contained in this article.