Leases Continued from page 9 _______________________________ Based upon the above, when a dis- pute arises concerning the lease, multi- ple disputes are going to arise over which terms govern, and how those terms are to be interpreted. Construction equipment leases are governed by both state common law governing contracts, including the Re- statement of Contracts, adopted in both North Carolina and South Carolina, and portions of Article 2A of the Uniform Commercial Code, governing leases generally, also adopted in both North Carolina and South Carolina. However, in the event of ambiguities, the law does not provide a clear path for resolving dis- putes that arise between the lessor and lessee, and the Court will not write a contract for parties that have failed to agree. In order to try and interpret the contract, certain presumptions arise; however, these presumptions are by no means perfect and may lead to a less than perfect interpretation of the con- tract. For example, the Restatement (Second) Contracts (1981) (hereafter, the Restatement”) § 204(4) states that the Court should look at the parties prior dealings and course of performance as indicative of contractual intent. Restate- ment § 206 provides that ambiguities in a contract are construed against the drafter. While at first blush application of the above sections may not seem problem- atic, what happens when the lessor signs the lessee’s P.O. on some, but not all of the leases, and does not specifi- cally object to those P.O.’s when pre- sented? Under § 204(4) that supports the lessee’s position that the P.O. ap- plies to all leases. Likewise, assume a 12 month contract limits hours of usage to 160 hours per month but does not de- fine how you allocate overall hours. The Court is going to construe allocation against the person who drafted the con- tract unless there is evidence to the con- trary. Also, under Restatement § 211, not all terms contained in the written contract may be given full force and ef- fect. Section 211 works two ways: (1) a party signing a form contract is charged with knowledge of the terms in 10 – July/August 2013 — The South Carolina Construction News Parker the form; (2) but, if the offeror knows that the offeree is unaware that an ob- jectionable term is included in the form, that objectionable term is not part of the agreement. The purpose of § 211 is to prevent the offeror from taking advan- tage of the offeree. How do you prevent application of section 211? The lessor will contend the lessee was aware of the objectionable term, while the lessor will contend it was not. Ultimately, what evolves out of this is a constant battle of forms, with no clear indication of contract terms, despite a written contract. While the Uniform Commercial Code has attempted to ad- dress this problem with Article 2 (some argue unsuccessfully), Article 2 does not apply to equipment leases, except by analogy. Under UCC Article 2A § 202, parol evidence, including course of deal- ings and prior performance, cannot be used to contradict a written agreement; however, it does allow for such terms to explain or supplement a written agree- ment. Thus, when you are dealing with a short, boilerplate, construction equip- ment lease, parol evidence is going to be able to be utilized to determine the parties’ intent and ultimately, the terms of the contract. Leasing equipment for the construc- tion project is, therefore, a matter that deserves close attention to detail as forms are exchanged and there is no substitute for a clear agreement. An ex- perienced, dedicated equipment man- ager is essential to the well-organized construction project. At the same time, a legal review at the time of leasing may save a lot of money when the project is being closed out. Lawrence C. Melton is special coun- sel for Columbia-based Nexsen Pruet, Lawrence C. Melton practices primarily in the construction law group. Melton is also teaching a class in Construction Law and Litigation at the University of South Carolina Law School. He can be reached at lmelton@nexsenpruet.com. Tracy T. Vann is a litigator practicing with the firm's Construction Group in Charlotte. She is licensed both in NC and SC and is currently chair of the SC Construction Law Council. Vann can be reached at tvann@nexsenpruet.com. Continued from page 8 _______________________________ Described as a gentleman, but not at all soft, Snow says Parker comes from a genera- tion based on honesty, in- tegrity and a desire to help. “Tommy holds true to the val- ues of his generation. He does- n’t realize how much he helps people because it’s just what he does, it’s who he is. He has always had a hand-on devotion and dedication to his family, his friends and his business, and in fact, to the industry.” Parker is a former president of the American Subcontrac- tors Association (ASA). Snow says Parker led the process in- troducing prompt payment leg- islation. “Tommy spent a ton of his own money and time flying back and forth to Washington. It took him a few years but in the end he got a resolution to have the federal government pay, then pay on time, then set what the timeframe should be for that payment. The federal prompt payment act followed.” Linda Burkett, executive director American — Subcontractors Association of the Carolinas “Tommy has a heart of gold and has done so much for us and for the national association as well. He has such great sto- ries about his years in the in- dustry and lessons he’s learned. When he talks, people listen.” Burkett says Parker spent a great deal of his time traveling around the country promoting the association and is still as active today. “He’s at every Charleston meeting voicing his opinions and sharing his knowledge. When he can’t at- tend something he makes sure he makes it easy for someone like Marty to be there on his behalf. If there is anything he can do to help, you can bet he’s going to.”