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Bob contracts Rob, a builder, to do some building work which requires the use of some heavy rare-to-find machinery which Rob owns.

Rob mostly does a good job, but in one place he rushes it (end of working day, tired, hungry etc.) and allows a certain negligence.

The result of the negligence is that the bearing capacity of the building ends up being by certain % less than what was designed.

The issue is fixable, but the heavy machinery needs to be brought back on site, which alone costs about $1.5k.

Rob rejects to do it free of charge.

Bob can't find an alternative contractor to do it (if he could, he would hire them and then claim the bill amount from Rob via Small Claims/Dispute Tribunal).

Can Bob contract Rob again to fix the issue, pay, but then claim the amount back as damages arising from the original contract?

The principal issue here is whether (and if not, why not) the court will recognise that as a truly 2nd, separate contract — as opposed to a variation to the original one. Clearly, Bob can create a separate contract to fix the issue with some other builder, so why can't it be Rob?

(Any common law jurisdiction).

2 Answers 2

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Can Bob contract Rob again to fix the issue, pay, but then claim the amount back as damages arising from the original contract?

That strategy seems unlikely to prevail. Bob would shoot himself in the foot by entering with Rob a second contract instead of seeking enforcement of the initial one. Bob cannot revert his forfeiture of the rights he formerly had.

The formation of a second contract on one same matter reflects Bob's waiver of his remedies pursuant to Rob's defective performance. The second contract is premised on Rob's refusal to do the fix "free of charge". Bob's awareness of that premise is precisely what moves him to enter the second contract, and said premise preempts adjudging the second contract as a variation of the initial one. The effect of this second contract is similar to when parties settle a dispute.

Additionally, what you describe is Bob's intent to trick Rob for the purpose of overcoming the latter's explicit refusal. The resulting absence of the meeting of the minds can only be detrimental to Bob's position.

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  • Sad true. Bob wishes to solve the issue ASAP instead of spending time getting Rob doing it for free through the court. He is happy to pay to fix it and does not care who does it (even if Rob). But he doesn't want to forfeit the right to claim the damages.
    – Greendrake
    Commented Apr 25, 2022 at 23:53
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Breach of contract is (theoretically) simple

  1. Rob is in breach of his contract (unless the contract allowed Rob to do negligent work - few do).
  2. Bob should write to Rob clearly setting out the nature of the defective work and the acceptable repairs and give him an opportunity to fix the defective work. Bob should allow a reasonable time for this in the circumstances but should set a deadline. This should be hand delivered or sent certified mail. It may help if it is sent by a solicitor on Bob’s behalf.
  3. If Rob refuses or allows the deadline to pass, Bob (or his solicitor) should set another reasonable deadline for the work and state that if it is not done by that time Bob will consider that Rob has repudiated the contract and that Bob will engage others to fix it and sue for the cost.
  4. If Rob refuses, Bob should write again stating that Rob has repudiated the contract and Bob is exercising his right to accept the repudiation and terminate the contract.
  5. Bob should seek a reasonable number of quotes (3 at least). It doesn’t matter to Bob whether this costs more or less than what Rob could do it for. I don’t care how specialised the equipment is, tell a contractor to charge whatever they like and Bob won’t be able to move for quotations. Ideally, Bob should do this early and include the copies at step 3 and/or 4 to indicate to Bob the amount of damages he will be liable for.
  6. Bob sues Rob for the reasonable cost of repairs.

Bob can lose

On the facts stated, this should be an easy win for Bob. However, it is likely those facts will be contested.

  1. Bob has to prove the breach - that the work is not in accordance with the contract. Rob is likely to argue:
    1. There is no defect,
    2. There was no specification or the work is accordance with the specification
    3. The work is in accordance with code requirements
    4. Any defect lies in the design not the construction
  2. Rob has suffered no loss. A slightly lower load bearing capacity does not prevent Bob from enjoying the benefit of the contract.
  3. The price for which Rob had the work done is not reasonable.
  4. That Bob was not given a reasonable opportunity to remedy the defect (although the steps above make that hard to argue).

Most of this will be subject to expert evidence which is likely to be a disproportionate cost compared to the side of the dispute. Engineers reports will be way more than $1,500.

If Bob agrees to pay more?

Then the contract has been varied and if Rob does the repair, Bob owes the money. Bob’s consideration for the change is the agreement to pay and waiving his right to sue for the initial breach, Rob’s is the agreement to do the repair now(ish).

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  • Very useful, but surprisingly not answering the actual question. Assuming Bob has gone through steps 1-5 in the first part and still Rob won't fix for free but would contract again to fix, would that be a block for Bob to sue him later — after contracting him 2nd time? Essentially, the 2nd contract would be completed fine, but the damages from the 1st one would still dangle.
    – Greendrake
    Commented Apr 25, 2022 at 10:21
  • @Greendrake why would Bob enter a second contract while the first has not been completed? If Rob agrees to pay Bob more then that will be a variation to the original contract and he will have no claim against Bob.
    – Dale M
    Commented Apr 25, 2022 at 10:24
  • Because there are no other contractors to fix the issue. Rob is the only one who has the equipment many miles around. This is the gist of the question⁠ — why can't the 2nd payment be considered a totally separate contract?
    – Greendrake
    Commented Apr 25, 2022 at 10:32
  • @Greendrake and the cost of bringing another contractor from “many miles” is a legitimate part of the damages. Hell, tunnelling equipment is transported across continents!
    – Dale M
    Commented Apr 25, 2022 at 12:40
  • I doubt that a court would approve $10k cost of bringing another contractor as damage claimed against Rob if there was a local contractor willing to do it for only $2k. Only that contractor was Rob himself, that's the problem.
    – Greendrake
    Commented Apr 25, 2022 at 13:57

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