|Are your residential Replacement Window contracts crafted as Sales Contracts or Construction Contracts?
The difference could impact your liability, and your relationships with suppliers, installers and customers.
It’s too easy for window and door dealers to potentially limit their participation (responsibility/liability) in the contract by posturing (when challenged by service issues) as a window sales company that does not manufacture or install the product but merely orders the product from a manufacturer, and as part of the service, contracts with third party installers to install the product in their customer’s homes; and include the installation in the price, treating it as incidental to the sale. (An impactful appellate defense a couple of years ago in such a case).
Conversely, with a contract to build, the purchaser has some control over the specifications of the object; the negotiations take place before the object is constructed; and a contract to build contemplates not only that the suppler will furnish the materials, but that he will also furnish his skill and labor in order to build the desired object.
Replacement window contracts might more easily be defined as a sales contracts, (after all, installers often are independent contractors) but the sales pitch betrays the points laid out above. The windows are pitched by the sales personnel as “custom built”; and the actual specs are based on needs and features discussed before the final order is drafted; and the dealer is expected to be the expert to help specify, remove the old, and install the new window and achieve the improved window/wall result.
Failure to describe the terms of the contract accurately up front can lead to substantive issues; discussed in Alonzo v. Chifici; issues you do not want in a window replacement contract - and probably what was intended by EnergyStar® Version6 posted installation requirements . more
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