My husband and I would like to complete a remodeling job on our home. The relationship between us and the contractor has gotten tense as there are many errors that need correction. We have sought estimates for repairs from other contractors. Before the original contractor will approve the estimates to be deducted from our final payment the original contractor is trying to force us to sign a non disparagement contract. Can they do this legally?
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FYI. We are in California. I thought California does not allow no disparagement clauses on consumer exchanges.– Christine TMar 3, 2020 at 22:07
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1 Answer
the original contractor is trying to force us to sign a non disparagement contract. Can they do this legally?
Apparently not (see here). But even if it were lawful for the contractor to pursue a non-disparagement contract, that does not mean you are required to enter it.
Entering a non-disparagement contract (assuming it were valid at all) would put you in a risky position, since you inevitably will have to talk with others (e.g., other contractors) about this contractor's flawed job. This contractor might opt to (ab-)use his awareness of those communications as an excuse to disavow the agreed deductions; namely, by alleging that your portrayals of his job are tantamount to disparagement.
Instead, it is in the contractor's best interest not to oppose your attempts to remedy the situation (i.e., by approaching other contractors and deducting from the final payment to him). That is because the repairs you are pursuing were caused by this contractor's poor performance. That poor performance might constitute breach of contract on this contractor's part.
As for trying to "force" you to sign a contract, it should be pointed out that contracts entered by coercion are null and void. However, it will be difficult for you to prove that you were forced or coerced to sign the contract. Although one can imagine the contractor being pushy on this issue and you might feel forced or overwhelmed, your description does not reflect that the circumstances or this contractor's method(s) amount to coercion.
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Could the clause be considered a settlement agreement and not a consumer transaction? Essentially it's a tactic in negotiations to avoid a lawsuit for breach. Mar 13, 2020 at 19:29
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1@ScottDunnington The clause certainly is a form of settlement agreement, but it would not be cognizable as "independent" of the original/consumer transaction. Otherwise, all suppliers would defeat legislative intent by offering their products & services at an excessive price together with an optional non-disparagement clause disguised as condition for "discount" (so as to bring the price down to an acceptable level). A contractor who truly intends to avoid a lawsuit for breach would not attempt to subject the customer to the heightened risk outlined in the 2nd paragraph of this answer. Mar 13, 2020 at 20:29