By Keith Swift, PhD
InterNACHI member/InterNACHI Report Writing Consultant
President, Porter Valley Software
Inspectors are commonly advised to have their contracts approved by attorneys.
And this sounds like really good advice, but is it? Think about it for a moment.
The words in our contracts are our first line of defense, but many of the contracts
that I’ve seen are bloated with legal jargon, and offer very little protection.
Here’s a clause from an industry contract belonging to a veteran inspector who
prides himself on being an expert-witness, and who probably wanted to be an attorney:
“Consultant does not turn on, or otherwise cause to be activated, any gas-fueled
utility, nor light gas pilots or activate any gas-fueled appliance not functionally
in service at time of observation.” This is obviously not a sincere attempt to
communicate; it’s simply bloated nonsense. And it would be a waste of time for
me to point out the obvious errors or in us trying to understand why the inspector
would resort to such cluttered communication other than in a misguided and futile
attempt to sound more important and intelligent. Unfortunately, this is typical
of the language that characterizes most legal documents. (If you’ve ever been
named in a lawsuit, you’ll know what I mean). So if you’re going to have an attorney
approve of your contract, make sure that he has a respect for the common tongue
as well as being committed to the pursuit of truth and justice. However, you should
be the author of your own contract, and the master of your own destiny, and I’ll
tell you why.
Every contract should assist you in avoiding litigation; because once you’ve
been named in a lawsuit you’re toast. From that point on, only the attorneys will
make money; while everyone else is loosing it. But let me tell you about my contract,
which I’ve never shared with anyone other than my clients and fellow inspectors.
It has nine clauses that are designed to help me avoid litigation, all of which
my clients are required to initial if they want me to do their inspection. The
first clause gives them five days in which to rescind the contract, sign a global
release, and receive their money back. This is how I separate the wheat from the
chaff. And in eighteen years I have only had four people who requested a refund,
and please believe me when I tell you that I predicted three of them and I took
great delight in returning their money and having them out of my life, forever.
Each one was a lawsuit waiting to happen; not because what I had done or had failed
to do, but because they were nasty people, through and through. Besides, I feel
pretty good about my inspections, and feel very comfortable about returning money
to anyone who thinks my service is not worth the cost. And I’m not cheap.
Another clause that is grounded in common sense, and also has the power to stop
someone from suing me, is purported to have no legal value whatsoever. Regardless,
by initialing it my clients agree that if I tell them to seek specialized service
and they fail to do so that they agree to hold me harmless from any related and
subsequently alleged deficiencies. Look at it this way: if I told someone that
the brakes on a car needed to be serviced and they elected to drive it anyway,
should I be held accountable if the car didn’t stop and the person was injured?
Of course not; it would fly in the face of common sense. Nevertheless, I’ve been
repeatedly told that the clause is “exculpatory,” and wouldn’t hold up in court.
“Exculpatory” derives from a Latin word that means to “seek to avoid blame.” But
it’s a reasonable clause, isn’t it? And why should I care what might happen to
it in court? Once I’m named, I’ve lost. As for the other clauses, they’re all
equally reasonable and written in plain English. I don’t believe in trying to
protect myself at any cost, and I certainly wouldn’t have any “weasel” clauses
in my contract, such as those that seek to limit liability to the inspection fee.
Would you trust someone who wanted to limit their liability to the inspection
fee? I strive to treat my clients as I wish to be treated, and if I do screw-up
I’m rolling over; that’s why I carry insurance. As I’ve said in countless articles,
there’s nothing more disarming than the plain truth.
