Dennis BeaverMay 29, 2020 • By Dennis Beaver 

“Danny” purchased an older home from a couple who fell in love with the game of shuffleboard from the many cruises they took over the years. In fact, they were so enthusiastic about shuffleboard that they had a court built in their back yard.

If you’ve never seen one, a regulation shuffleboard court takes up a lot of space. Typically, it is a slab of concrete at least 52-feet long, 10-feet wide and from 3 to 4 inches deep. Stencils are used to apply the game lines.

Danny’s family never played shuffleboard, and over the years as the game lines faded, the concrete became discolored. He jokingly referred to it as “A landing strip for Martians.” Interestingly, this large concrete slab had no cracks, no cracks at all – a telltale sign of trouble ahead went un-noticed.

“As no Martians ever landed,” he said with a broad smile, “we decided it was time to remove what had become a concrete eyesore.” A $600 bid was obtained from licensed contractor “Mario,” who inspected the slab before submitting the bid. Danny had worked with him before and was always impressed with his ethics, competence and honesty.

No Small Task Removing Concrete

Removing concrete that has not been reinforced only requires a shovel, a 12 to 20 pound sledgehammer, wheelbarrow, hearing, dust and eye protection.   However, reinforced concrete is different sort of animal and you need a jack hammer, electric saw and other tools, raising the cost significantly.

Both Danny and Mario were under the impression this was a simple job. The possibility of it being reinforced was never even considered even though the absence of cracks was an indication of how the slab was built.
The Job Begins

“What is this?” Mario yelled after trying to break up the concrete with his sledgehammer.

“It doesn’t budge! I don’t get it!”

The explanation would quickly become clear.  After digging around the slab, he discovered that the shuffleboard court could sail through a major earthquake or resist major ground settling. It was over 6 inches deep and incorporated 3/8th inch diameter #3 re-bar.

For Mario to complete the job would require many more hours, renting concrete-breaking equipment, and he would wind up losing a great deal of money, all because he was mistaken about how the shuffleboard court was constructed.

But Mario is a deeply religious and told Danny, “I am a man of my word and must honor the price quoted.” Danny said, “No, we both made a mistake and it would be unfair to hold you to your bid. Just finish the job and give me a revised bill.”

Who is right?

The Legal Question – Does The Mistake Excuse Mario’s Performance?

I ran these facts by a friend of this column, contracts professor Bryan Hull at Loyola University School of Law in Los Angeles.

“If Danny had refused to pay more, Mario could have argued that he didn’t have to perform because of either mutual mistake or unilateral mistake.  It was clear both had the same basic assumption that the concrete slab was built to customary specifications and could be removed with a certain amount of effort and expense. In fact, it was built to different specifications that made it much harder.
“Danny could argue that Mario assumed the risk of error because he is an experienced contractor, but it may be that it was impossible for him to tell until he got into it and it is such unusual situation that he wouldn’t have thought to do more thorough inspection before making his bid.
“Unilateral mistake would apply if only Mario was the mistaken party. A court could grant relief under that theory that making him perform would be unconscionable. The issue would be how much more expense he would incur than estimated.

“In one case involving the sale of a car, the court held that a 30% error in setting the price due to a failure to proofread an advertisement for the car was sufficient to grant an excuse.
“As with mutual mistake, there would be an issue of negligence. But courts hold that simple negligence is not enough to impose risk.  He would probably have to have been reckless in making his bid, engaging in willful blindness, before a court would assign the risk to him. 

“If relief is granted on the basis of mistake, performance under the contract is excused, so Mario would not have to perform.”

The Result?

“Mario felt that it was his mistake and he would accept the consequences. But when I explained the law to him, he agreed, and now the Martians need to find a new landing site!” Attorney Danny told me!

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.