First, let’s look at how we got into this fine mess. What happened to cause the contractor to start worrying more about keeping score than keeping in budget and on schedule? What caused us to start dissecting words and start using those cover-your-assets phrases?
The worm began to turn back in the 50’s when the courts ruled that you could sue someone although you were not contracted with them. The contractual relationship, known in legal terms as privity, ceased to be an absolute requirement for filing suit, and architects began to experience the joys of being served with legal papers. The climate quickly changed for architects from never being involved in lawsuits to almost always being involved.
As a result, architects began to worry more about semantics than about their services. Inspection and supervision gave way to observation and just being generally familiar with the work. Any certifications that were made had to be based on the “best of our knowledge, information, and belief.” Architects had to start dancing with the legal aspects of their services because they were becoming targets in claims and legal actions.
But architects didn’t really become a viable target for claims until they acquired professional liability insurance. The insurance policy gave the plaintiffs a measurable goal for claim damage awards. Professional liability insurance was created for architects and engineers by Victor O. Schinnerer in 1957 to protect against a very real threat. But one has to wonder if the policy itself has become the desired target. Could this response to a need have actually helped to seal our fate?
- Atkins, James B., and Grant A. Simpson. 2008. Managing project risk: best practices for architects and related professionals. Hoboken, N.J.: Wiley.
This is just cursory glance into the emergent flows of legal definitions into market opportunities that, in all too real terms, has become a strange codifed relationship of risk and defensive posturing; we know it as the ritual of clever hand-wringing and detached engagement that is the AIA contract. I wonder if the history of contract relationships might prove to be the most interesting of histories within Architecture. It would surely catalog the transition of not just economics but of the relationship between Client and Architect.