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The purpose of the type of contract
provision is to bring another document into the
contract without fully setting forth the incorporated
document. It places "hidden" obligations in your
contract. Since these clauses are enforced by
the Florida courts, the old saw "ignorance is
bliss" is an invitation to disaster.
Most often we seen the Plans and
Specifications incorporated into the contract.
The effect is to make them a part of the contract
documents. The obligation to fulfill the provisions
of the Plans and Specifications is just as binding
as any contract clause actually written in the
contract. This can extend down several levels.
In our example the Plans and Specs are now part
of the contract. The Specifications may then incorporate
other documents such as installation requirements.
A particular product may be specified with the
requirement that it be installed in accordance
with the manufacturer's instructions. The effect
of this is to incorporate those instructions into
the contract. The fact that these requirements
were not included in your estimate will not prevent
enforcement of these obligations.
Another typical incorporation is
found in subcontract agreements where the contract
between the owner and contractor is incorporated
by reference. Again all of the terms of that general
contract are now terms of the subcontract including
the documents incorporated into the general contract.
The subcontractor then assumes an obligation to
perform under those terms. The fact that you have
not seen the incorporated documents will not relieve
your of their requirements.
Since these types of clauses are
enforceable, a failure to comply is a breach of
contract subjecting you to damages for any failure
to comply. The first step, of course, is to obtain
each of these documents, before you sign a contract.
All of the incorporated documents must be reviewed
in detail to determine the extent of your obligations.
Any provisions that are not acceptable should
be specifically deleted from your contract.
Contracts are like seat belts. Putting
them on takes time and energy and on most trips
they serve no useful purpose. However when an
accident happens they become your most important
accessory. Many jobs get done without ever looking
at the contract. However, when problems arise
on the job usually the first thing that comes
out of the file cabinet is the contract. You may
be in for some unpleasant surprises if you haven't
looked at the incorporated documents.
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