Nearly all substantial construction contracts are in writing and include general conditions which govern the rights and obligations of the parties. Typically, these general conditions provide that no changes or extras will be paid unless previously ordered in writing.
The reality during construction is that extra work orders are frequently handled much more informally than contemplated by the contract. For example, an owner may direct the general contractor to provide an item of work not included in the plans, with the assurance of a future change order; or a general contractor's superintendent may direct a subcontractor to perform work beyond the scope of the subcontractor's specifications, promising to work out payment later; or an owner's architect, in the presence of the general contractor, may direct a subcontractor to immediately correct work which all acknowledge is not the subcontractor's responsibility.
Note in each example, the total absence of any written authorization. Does this mean the Owner or Contractor can later refuse payment because the contract general conditions authorize payment only where written direction precedes performance? In the circumstance described above, the answer is almost certainly no. That is so because it is highly likely a Massachusetts Court would rule the parties, by their words and conduct, had waived the contract provision requiring written authorization of extra work.
Waiver of such provisions is based on the legal principle that parties have a right to modify a written contract by oral agreement; and that such agreement may be implied from words and conduct. Even contract provisions purporting to bar oral modifications have been held waived by oral agreement, express or implied.
But there is another equitable principle underlying the Court's readiness to find waiver in these circumstances. The law simply does not permit one party to a contract to induce the other party to perform extra work on the understanding that there is no need for strict observance of contract terms, and then later to repudiate liability for fair compensation by invoking terms of the contract. To act in so inequitable a fashion is conduct no self-respecting court will tolerate.
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