Attention is here called to the hardships— often unnecessary hardships—that can be brought upon the contractor through the holding up of his regular payments by the architect or engineer. Sometimes, when a contractor has not complied with the terms of the contract, and is seeking to do other work and make other money to the financial prejudice of the owner of the job on which he is employed, an architect has no right to authorize the regular payments until the contractor has lived up to his obligations; but, on the other hand, it is an injustice to the contractor to hold up a certificate because the architect happens to be too busy to check the figures, or on a technical or finely drawn point which is not entirely justified by the cold facts. This injustice is not always a matter of conse quence, but may result in serious complications if pushed too far.
The owner can have no objection to making payments regularly if the contractor carries out his part of the contract, for the reason that the owner knows beforehand when each payment ought to come due, and he is in a position to prepare himself against such time well in ad vance of its occurrence. Inasmuch as the par tially completed structure belongs to the owner, he at all times has got value received for his money.
(b) Freedom from Interference. The con tractor undertakes to perform a certain specified act, or series of acts; or groups of acts, for a cer tain consideration, and it is of the highest eco nomic importance to the contractor that he be not obliged to do things which he did not origi nally obligate himself to do or which he did not expect to do when he entered into the contract. If a contractor enters upon a piece of work with the idea of meeting the ordinary regular condi tions that he can foresee, and if suddenly un foreseen difficulties develop which prevent him from executing the work as economically as he had originally planned, he is immediately in trouble, and he is in a position similar to that of a man who pays a good price for a cantaloupe and, after cutting it open, discovers it to be spoiled. As a matter of law, with the usual form of contract, if the contractor meets with difficulties which are not the fault of the owner in any way, and which the contractor ought to have foreseen himself, it is the contractor's fault, and he must bear the burden of. it. On the other hand, if lie is subjected to interference with the economic conduct of the work because of the actions of the owner, such privileges not having been granted to the owner in the contract, the owner is at fault, and in this case it is he who must bear the burden. There are, however, a
great number of cases which do not come within either of these assumptions. For example, if the contractor meets with difficulties which are forced upon him by outside parties, or by what the lawyers term "the acts of God," the financial responsibility is often a very difficult one to determine.
In brief, the contractor is supposed to be able to foresee the ordinary conditions that will gov ern his work, and to make provisions for them in the terms of the contract which he signs; and to meet these conditions he is responsible. For unreasonable interference with him on his work, due to the owner, a contractor is not responsible. For outside conditions which are not foreseen in the contract and not of such ordinary occurrence that they should have been foreseen in the con tract or by an intelligent estimator, and which, at the same time, are not imposed by the owner or anyone employed by him, there is usually room for question as to who must bear the responsibility.
(c) Special Privileges. No two contracts can be exactly alike, because no two engineering or architectural purposes are exactly alike. Every piece of work has its own particular and peculiar features which require to be dealt with in a way particular and peculiar to that work; and therefore nearly every contract has clauses which are intended to guard against misunder standings arising from special conditions. If.
these special conditions are expected to inter fere with the right or the interest of the owner, the attempt is generally made to guard the own er's interest by introducing the special privi leges that he may need; while, if the peculiar conditions are expected to affect the contractor detrimentally, he may insist upon certain special privileges for his protection.
The contractor may be allowed to use equip ment belonging to the owner; he may be allowed to use the owner's property to store materials and supplies upon; he may be allowed special rates on materials sold to him by the owner; and he may be allowed special leeway as to when certain parts of the work ought to be completed —all of which special privileges are worth some thing to the contractor and are certain induce ments to him to take the contract at a low figure; or they may be inducements to him to waive payments at certain times.