Diggins

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A prevalent practice in the construction sector is to incorporate by reference other documents into the contract among two parties. For instance, subcontracts regularly incorporate the �Contract Documents� (which term is generally defined) and have a statement to the effect that the subcontractor has either reviewed the Contract Documents or had an chance to do so. Florida law recognizes the rights of contracting parties to agree to the terms and conditions in documents that are only referred to in the contract. �It is a normally accepted rule of contract law that, exactly where a writing expressly refers to and sufficiently describes one more document, that other document, or so a lot of it as is referred to, is to be interpreted as part of the writing.� OBS Business, Inc. v. Pace Construction Corp., 558 So. 2d 404 (Fla. 1990). Nevertheless, at least one Florida appellate court �requires that there have to be some expression in the incorporating document ... of an intention to be bound by the collateral document.... A mere reference to another document is not sufficient to incorporate that other document into a contract, particularly exactly where the incorporating document tends to make no distinct reference that it is �subject to� the collateral document.� Kanter v. Boutin, 624 So. 2d 779 (Fla. 4th DCA 1993). The issue of �incorporation by reference� maybe most frequently comes up when a party to a contract attempts to force the other party into arbitration based upon an arbitration clause contained in a document that is only incorporated by reference. Arbitration clauses incorporated by reference are normally enforced. For instance, in Frank J. Rooney, Inc. v. Charles W. Ackerman of Florida, Inc., 219 So. 2d 110 (Fla. 3d DCA 1969), the appellate court ruled that the subcontractor could compel the common contractor to arbitration exactly where the arbitration clause of the AIA common provisions had been incorporated by reference in the common contract which, in turn was incorporated by reference into the subcontract. The courts will also only enforce provisions that are incorporated by reference if . . . well, if they are incorporated by reference. In the aforementioned Frank J. Rooney, Inc. case, the subcontract stated that if a dispute arose as to the quantity claimed by the subcontractor for extras, the dispute would be lastly determined by the architect. The court stated, �It was not needed for the parties to agree that all disputes be decided by the exact same authority. They had a best right to make a distinction among claims that would arise under the original sub-contract . . . and to give a diverse approach for claims that would arise subsequent to the execution of the sub-contract . . . .� Hence, though the subcontractor�s claims regarding the contract balance had been appropriately the topic of arbitration, the claims regarding extras had been for the architect to choose. rent contractor lien attorney source A single of the methods to carrying out a great job negotiating a contract is to comprehend it, including the terms to be incorporated by reference. In some instances, what would be incorporated by reference might be advantageous and, as a result, should be accepted. In other people, the outside terms may well be unreasonable and possibly damaging and, therefore, negotiating exceptions would make sense. contest of lien

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