No Damage for Delay Clauses Enforced without Exception

摘要

MOST READERS are familiar with the concept underlying contractual "no damage for delay" (NDD) clauses. These clauses shift the financial risk of any project delay to the contractor by granting the contractor only a time extension, not monetary damages, if delays are encountered. Depending on the jurisdiction, these clauses are often challenged by contractors because some state laws (either by statute or case law) recognize certain exceptions to them. Common exceptions are intentional interference by the owner, delays not expressly covered by the terms of the clause, unreasonable delays, and events not contemplated by the parties when the agreement was made. This month we highlight the case Markwed Excavating, Inc. v. City of Mandan, in which the North Dakota Supreme Court grappled with the question of whether an NDD clause should be enforced.