Hamburger Hill Redux

Members of the Theban chorus were correct when they sang, “Πολλα τα δεινα, κουδεν ανθρώπου δεινότερον πέλει”, but times have changed.  Human beings had a good run as the strangest thing in the world, but we were unseated when courts in England and the United States developed doctrines of contract interpretation.

The doctrine of consideration is unique to common-law systems.  It is a headache for first year law students and extra boilerplate in the real world.  For a contract to be enforceable, there must be consideration.  A lot has been written about the forms that consideration can take and when parties can weasel out of it, but in essence consideration is payment.  A mere promise to do something is not a contract.  A promise to do something in exchange for some kind of payment can be a contract.  A contract is enforceable at law; a promise is not.

If you mention the term ‘consideration’ to a French lawyer, she will wrinkle her cute nose and look at you blankly.  That is because civil law systems do not use it.  I understand that legal systems descended from Roman law require that parties to a contract be able to show that there was a “cause” for entering into the contract in order for the contract to be enforceable, and that the notion of ‘cause’ is a rough functional analogue to that of consideration in common law systems – but I admit that I do not even know the depth of my ignorance about Continental legal systems.

I believe that the doctrine of consideration existed in England and the Colonies prior to the Industrial Revolution, but contract law really came into its own in the early-to-mid eighteen hundreds, when the volume of business contracts exploded with the birth of capital markets.  The doctrine of negligence evolved around the same time.  Owners of railroads and factories did not want to be held responsible for injuries every time a child fell onto a railroad switch or a man was disfigured in an industrial accident, so they argued that they should only be held responsible if they did not use due care in operating their machinery.  Courts bought that argument, and the doctrine of negligence was born.

A doctrine of contract law that evolved somewhat after the doctrine of consideration is the implied covenant of good faith and fair dealing.  This is a rule used by most US courts that requires parties to a contract to implement the agreement as intended, rather than as a means to undercut the purpose of the transaction.  The rule applies generally to any contract without being explicitly stated.  Effectively it means that courts will interpret contracts using common sense, and that parties are required to do likewise.

I recently entered into a contract with a guy from Worchester, MA to fix a park-owned home in my park in central New York.  I call that home ‘Hamburger Hill’ because wave upon wave of contractors have died trying to fix it.  That’s not because the home is structurally unsound.  It has good bones.  The frame, outriggers and band are all solid.  The utility hookups work.  The roof does not leak.  The sub-floor needs to be replaced, but the joists are OK.  The furnace and the water heater work.  It is Hamburger Hill because I have had crappy luck with contractors.  One guy installed the shower faucet in a way that caused the sub floor next to the tub to turn to oatmeal.  Another bought drugs with his first payment and disappeared.  Another was Alex.  Another bolted when he got a better offer.  Another showed up for a day, desultated, and then ghosted me. 

The sixth wave has begun its assault on Hamburger Hill. 

Contractor Number Six is named Costa, although his real name is Gus.  Costa is from Worchester.  He is spending some time in central New York because he is flipping a house in a nearby town.  He needs money to support the flip.  I hired him a few weeks ago.

Costs does not understand the implied covenant of good faith and fair dealing.

Early this month, Costa sent me an emailed estimate.  I emailed back, “Proceed”.  We had an offer, an acceptance, a meeting of the minds, capacity and consideration.  I sent the first payment, and Costa started work.

Inter alia, the contract required that Costa do the following:

• Bathroom Fix springy floor. Remove toilet, open sub floor, locate issue.  Use lumber to fix problem joist. Replace subfloor. Replace vinyl flooring. Replace toilet.

• Install Drywall Above Furnace  Install sheet of drywall to cover empty space below roof-jack.

• New Base Kitchen Cabinet  Stain. Polyurethane. Install drawer pulls.  Solve problem of space between cabinets by installing shelves.  Cut kitchen counter flush to corner.

Last week, Costa emailed me to say that he was finished.  On Monday, I did a walk-through.  What I saw was that the final work product reflected an adherence to the letter of the contract without regard for good faith, fair dealing, market practice or common sense.

Here’s the sheetrock that he installed in the space above the furnace:

Here’s the stain job on the cabinets, and the new cabinet shelves:

And here’s the mess that was left behind:

I stopped taking pictures after a while.  A place where he had torn out a lip above the entryway to the kitchen was not painted.  The space between the bottom of the tub and the top of the previously water-damaged sub-floor was not caulked.  A light fixture that he had agreed to fix was not replaced or repaired.

I gritted my teeth, drafted a polite email and sent Costa pictures and a punch-list.  The gist of the email was, “You did not use your common sense”.  Putting up sheetrock means installing the sheetrock so that the correct side – the side that can take paint – faces out, sealing the joints with joint compound and painting over it.  Staining one of two side-by-side cabinets means staining it the same color as the cabinet next to it.  Installing shelves means installing shelves – note the plural morpheme – finishing them and putting veneer on the lips.  When you rip something out, you paint over the hole.  If you repair a water-damaged sub-floor, you caulk around the source of the water so that the damage won’t happen again.  You don’t leave a job site a mess – even if the last guy left the mess.

Five minutes after I hit ‘send’, my phone farted.  Costa said, “None of that was in the contract.”

I said, “The contract didn’t say that water is wet, either.”

“How can I match the stain!  Nothing matches in that trailer!”

“I hired you to fix that.”

“That’s not what the contract says.”

He complained that the contract did not say that the sheetrock had to be mudded or that the shelves had to be finished.  He complained that it would be difficult to stain the side of the new cabinet because it is luan board.  He said that he did not have to take the garbage away because he did not put it there.

He said that all his customers were satisfied.  I thought, not this customer.

After a point, I told him to stop speaking.  I had heard what he had to say.  I understood it, I disagreed with it, and I did not want either of us to waste more time banging gums.  If he wanted the final payment, he would have to finish the job.  If he wants to continue the conversation in front of a judge, I am happy to do that.  I know the judge in town.  We have our differences, but he got an A in first-year contracts and he understands the implied covenant of good faith and fair dealing better than I do.