Legal Question in Construction Law in California

Re: verbal agreement

The answer to this question begins with consideration of Civil Code section 1698, subsections (b) (c) and perhaps (d). I would then look at the written contract to see if it contains any clause requiring amendments or modifications to be in writing.

A full and proper analysis of this relatively simple appearing question turns out to require looking at several factors and sub-issues, including:

(1) Was there any new consideration given?

(2) Does the written contract expressly forbid oral modifications? Most do.

(3) Is the oral modification you claim sufficiently definite to be binding? After all, "take care of" is not very definite; would a judge or jury interpret "take care of" to mean "build without additional cost" or perhaps something less, such as "prepare a ready-to-pour pad" or "find a good concrete man for you" or something less than a freebie on the entire sub-project.

(4) Is the concrete work something that should have been included in the written contract but was omitted by mistake, or maybe it is required by law, or was in the plans and specifications given the contractor?

My guess is that the oral modification cannot be enforced unless (1) there was some additional consideration, such as more money to be paid, or possibly the contractor goofed up something and you agreed to overlook the problem if he would do the concrete; and (2) the contract itself does not expressly prohibit oral modification.

Even if the oral modification passes the Civil Code 1698 hurdles, proof of its existence and its terms with sufficient definiteness to allow its enforcement is not a sure thing, even with witnesses.

Re: verbal agreement

I do not see a question here but I am assuming that you are asking whether he should be paid or not after he has done the work. I am assuming the work has been done.

The first thing to do is to look at what your contract states regarding the description of work to be done and what it states concerning modifications, extras, and waivers. A written contract may be modified by an oral agreement under Civil Code Sec. 1698(b).

(� 1698. Modification of written contract

(a) A contract in writing may be modified by a contract in writing.

(b) A contract in writing may be modified by an oral agreement to the extent that the oral agreement is executed by the parties.

(c) Unless the contract otherwise expressly provides, a contract in writing may be modified by an oral agreement supported by new consideration. The statute of frauds (Section 1624) is required to be satisfied if the contract as modified is within its provisions.

(d) Nothing in this section precludes in an appropriate case the application of rules of law concerning estoppel, oral novation and substitution of a new agreement, rescission of a written contract by an oral agreement, waiver of a provision of a written contract, or oral independent collateral contracts.)

Because the amount of money is not substantial and you are talking about 380 sqft of decking at probably a cost of what $5.00 a sqft ballpark. The additional cost is less than $2000.00.

My suggestion is to withhold payment from the final payment for the amount that he has claimed additional. However, a full analysis of the contract and all facts should be done by an attorney because if you do withhold payment when you are not supposed to then you may be in breach of contract yourself.

After you withhold payment he may or may not file a small claims lawsuit against you. It will be his burden to prove the additional work was not included in the original quantity and was extra and authorized by you. On the other hand if you do pay him and then sue him it will be your burden to prove it was not a legitimate charge and the fact that you did pay him will weigh heavily against you.