Legal Question in Construction Law in California

Re: construction law

As a complete replacement, or to do a little sub-portion of the work?

Actually, I can vaguely remember studying a case on this very topic way back in law school. I certainly don't remember if it were a California case or if the principle would apply here. However, I think the case illustrated the general principle that contractual rights and duties can be assigned and delegated with more or less freedom if doing so does not violate a specific term of the contract prohibiting the assignment of rights or delegation of duties.

With respect to delegation of duties, there are some additional requirements. If the contract is made in reliance upon the special talents or qualifications of the original contractor, including its reputation and financial integrity, the duties cannot be delegated without the express prior consent of the principal. For example, if I contract with Picasso to paint my portrait, he cannot delegate his duty to some starving artist he has just met on the streets of Paris. However, bricklayer X can probably delegate (subcontract) to beicklayer Y, with a similar credit rating, reputation and bondability, unless the contract so prohibits or restricts.

The original obligee, i.e. bricklayer X, remains liable to the prime contractor in the event his delegatee, bricklayer Y, snafus up.

This kind of stuff complicates getting jobs done and everyone paid, and the best way to prevent it is to put pretty strict stuff in your contracts about assignment and delegation. You might also consider whether the delegation of duties was unauthorized because the delegatee (sub-subcontractor) didn't meet criteria such as licenses, bonding, minority hiring, or anything else specified in the main contract.

Finally, there may be an important distinction between "not telling me" (which is what you say), and "not getting permission in advance." Not getting permission might be OK, whereas at the same time failure to notify you promptly upon the delegation or sub-contracting would probably violate the terms of any contract. The sub may have a right to delegate, but probably has an affirmative duty to notify you at once when the delegation or sub-subbing occurs.