Contracts

Consequential damages waivers in construction contracts

By Scavi Company · · 3 min read
Consequential damages waivers in construction contracts

Consequential damages can be far larger than the contract. Here is why the waiver matters.

Why it matters

If a delay keeps a restaurant from opening, the owner may claim lost profits that dwarf your contract. Consequential damages are indirect losses like lost revenue, rent or financing costs. A waiver limits that exposure.

Direct vs consequential

Direct damages fix the problem. Consequential damages are losses caused by it.

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Examples

Lost profits, lost rental income and business interruption.

Mutual waiver

Both parties give up claims for consequential damages against each other.

Standard forms

Many standard contract forms include a mutual waiver. Check it wasn't removed.

Exceptions

Read carve-outs carefully. They can bring back risk.

Liquidated damages

Agreed daily damages often sit alongside the waiver. Understand both.

Insurance

Some risks may be insurable, others not.

Negotiation

Ask for the waiver if it's missing.

Flow-down

Align your subcontracts with the prime contract.

An example

A GC noticed the owner deleted the mutual waiver from a hotel contract. After negotiation, it was restored with a cap on liquidated damages.

Where to start

Add a check for the consequential damages waiver to your contract review checklist and consult an attorney.

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Frequently asked questions

What are consequential damages in construction?

Indirect losses that result from a breach, such as an owner's lost profits, lost rent or business interruption, as opposed to the direct cost to fix the work.