My dad hired a contractor to demolish his wooden deck and asphalt driveway and replace then with a concrete deck and driveway. The contractor was also supposed to do work relating to drainage and refinishing the front porch and pathway. The price for this work was $38.5k.

Work started on June 13. There was no payment schedule listed in the contract, and no specific deadline was set. My dad paid $15k upfront and another $15k a few days after work started. He was told he had to make the second payment to "lock in the price of concrete." (This is relevant later). Work proceeded but was slow at times (i.e., stretches when nobody showing up at the house for a few days).

On July 25, the project was ready for concrete to be poured. The workers who showed up that day to do some finalizing expected it to happen the next day. However, the contractor called that afternoon to say that he needed another $4k. My dad said no, I've already locked in the price of concrete, you'll get the rest when you finish. The contractor responded that he'd put the concrete delivery on hold. Nobody showed up and no work was done on the 26th, 27th, or 28th. The evening of the 28th, my dad sent a letter via email to the contractor saying that there had already been some delays, and now it seemed like the the contractor was obstructing for no reason. He told the contractor that if he again failed to advance the project, the contract would be terminated. The contractor responded by saying that concrete would be poured on Aug 1.

Concrete was poured on Aug 1, and the next day some additional refinishing work was done and the form boards used to mark the concrete borders were removed. However, from August 3 to 16, no further work was done, and the contractor did not communicate anything during this time. The work that has yet to be completed includes the drainage, front steps, front path, and some other stuff. He also needs to fix the GIANT FUCKING CRACK in one section of concrete and ridiculously shoddy finish in another.

My dad emailed him on the evening of the 16th to say that the contract was terminated because the contractor had not done or said anything in two weeks. The contractor is getting pissy and claiming breach because there was no specific deadline in the contract.

Under the contract, my dad still owes $8500.

What do you bros think? Did my dad breach or did this contractor constructively breach or what?

(http://www.autoadmit.com/thread.php?thread_id=3704442&forum_id=2#34014679)

Another way to look at it-->

Contractor was playing the-who-breaches-first game and dad called him on it and he called chicken by pouring the concrete then went back to breach--

I think dad is probably in the clear and contractor fucked up. Based on what you've presented.

(http://www.autoadmit.com/thread.php?thread_id=3704442&forum_id=2#34014732)

this is one of those situations where possession is 9/10ths of the law. your dad might have a hard time recovering some of his 30k back, but the contractor will have a hard time recovering his 8500.

(http://www.autoadmit.com/thread.php?thread_id=3704442&forum_id=2#34014766)

what's the SCC limit in your state? can the contractor even go to SCC over 8500, or does he have to hire an atty and go to real court.

(http://www.autoadmit.com/thread.php?thread_id=3704442&forum_id=2#34014823)

take pics of everything.

(http://www.autoadmit.com/thread.php?thread_id=3704442&forum_id=2#34014881)

Edit: Only read like half of it.

(http://www.autoadmit.com/thread.php?thread_id=3704442&forum_id=2#34014830)

"I don't think my dad is looking to sue"

Well, I don't know how much use this will be, but . . .

Issue 1: I assume $38,500 is a fixed price for a specific, well-defined scope of work.

Issue 2: Paying that much up front? LOL.

Issue 3: Does the contractor have lien rights or can he still get them? If so, is there a way to delay or run out the clock on them? You probably don't want to deal with that if you don't have to. But this stuff varies massively by state.

Issue 4: Time for performance if not stated is probably a reasonable time under the conditions for a similarly situated diligent and skillful contractor. This is a consequence of general contract law, the duty of good faith and fair dealing, and the duty of good workmanship, which will generally require diligent prosecution of the work. We don't have enough details, but it probably shouldn't take a month to do the project you described.

Issue 5: Damages are a bit tricky. It's not clear what value of work was performed relative to the amount paid. Assuming they're equal, the additional damages are (a) the cost to correct the work in place and (b) the cost to complete the scope of work not yet completed to the extent it exceeds the contractor's price (which it will). If your dad has effectively paid ahead of the work installed, you'll have to account for that.

Issue 6: Some jurisdictions have special payment and defect notification schemes that apply to construction projects. You need to see what, if any, apply.

"What do you bros think?"

Mostly what I said above.

"Did my dad breach or did this contractor constructively breach or what?"

Contractor probably in first material breach by (a) demanding performance (additional payment) to which he was not entitled and (b) being slow and doing shitwork.

So your dad was probably ok to terminate.

(http://www.autoadmit.com/thread.php?thread_id=3704442&forum_id=2#34015405)

*0.7" reddened microdick perks up*

(http://www.autoadmit.com/thread.php?thread_id=3704442&forum_id=2#34015421)

Took like a year but whatever

(http://www.autoadmit.com/thread.php?thread_id=3704442&forum_id=2#34015702)

https://www.dllr.state.md.us/license/mhic/mhiccontracts.shtml

"A contractor cannot accept more than 1/3 of the contract price as a deposit, and may not accept any payment until the contract is signed."

(http://www.autoadmit.com/thread.php?thread_id=3704442&forum_id=2#34020619)

As a common law matter, it's typically a matter of materiality. In other words, you can terminate a contract for a material (sometimes, "vital") breach. You cannot terminate a contract for an immaterial, minor, etc. breach.

Materiality is determined according to the circumstances, the terms and nature of the contract, and so on.

It's a fuzzy term, but that's what you've got absent a statute or a contract provision on point.

To answer the question: The contractor has the right to do the job and get paid so long as he's not in material breach.

(http://www.autoadmit.com/thread.php?thread_id=3704442&forum_id=2#34020592)

Is it something that protects the contractor? In other words, right to cure means I can't sue him for defects unless I give him an opportunity to fix, but does not give him any cause of action against me?

(http://www.autoadmit.com/thread.php?thread_id=3704442&forum_id=2#34020616)

The typical scheme imposes a prerequisite to filing suit or provides a defense to the contractor.

I've never heard of a case where the contractor would have an affirmative cause of action against the owner for a violation of such a scheme. But the contractor might be entitled to an award of attorney fees or other expenses.

(http://www.autoadmit.com/thread.php?thread_id=3704442&forum_id=2#34020665)