This section is from the book "Cyclopedia Of Architecture, Carpentry, And Building", by James C. et al. Also available from Amazon: Cyclopedia Of Architecture, Carpentry And Building.
It is commonly provided in the building contract that payments for work shall be conditional upon the giving of certificates by the architect. Such a provision in an ordinary contract applies to extras as well as to the specified work, since extras are contemplated and provided for in the contract. Inasmuch as the giving of the certificate demands an exercise of judgment on the part of the person giving it, such certificate should be given only by the party named to give it - by the architect himself - and on his own knowledge of the facts; unless, indeed, there is an express provision in the contract authorizing him to delegate this duty to another. Where there is such a provision for delegation a certificate by the party to whom the duty has been delegated is, of course, valid.
Similarly the certificate of the architect must be strictly in the form provided for in the contract. If the contract does not provide that the certificate shall be in writing there is no rule of law precluding a certificate by word of mouth. Were there space within the limits of this article, many decisions might be cited holding certificates sufficient or insufficient under the contracts applying to the respective cases. The following will suffice to show what sort of question arises:
In an Illinois case (Barney v. Giles, 120 Ill. 154), the building contract provided that payment in full should be made "on the presentation of the architect's certificate certifying that the contract has been and truly performed, and accepted by him, and that all damages or allowances which should be paid or made by the parties of the second part, have been deducted from the amount of the said final certificate". A certificate was given, the substantial part of which was as follows:
"This is to certify that Barney & Rodatz, contractors for the mason work of your additional stores, are entitled to a payment of $1,079.73, by the terms of contract.
"Remarks - Work has been measured at building".
It was held that this certificate was insufficient because it did not state that there were no claims for damages; and that the mere fact that no claims had been presented did not remedy the defect.
Where the architect certifies to the work at its different stages i.e., gives interim certificates, he should be very careful not to overestimate the work done, because if he does overestimate, and the contractor abandons his contract, the owner will be left in the position of having paid more for the finished portion of the work than it was worth, and the architect may find himself personally liable for the amount in excess of what he should have certified to.
The architect's final certificate is the document in accordance with which the accounts are closed, and should be made up very carefully. It should be given only after all the work is done, the extras noted, and, if allowed, a reasonable price fixed therefor. The architect should at this time be informed of all variations or all omissions in the performance of the contract, and the rights of the owner in respect to such are to be carefully protected. If the variations are of a serious nature, the owner may not be obliged to accept or pay for the work. On the other hand, the owner may take the work as it stands, but demand and, if necessary, recover at law, damages for the deviations from the contract. Where the contract is not exactly carried out, the architect should ordinarily refuse a final certificate. In some cases it may be proper for him to give a certificate stating all omissions or variations from the contract, and reserving to the owner all rights on account theeof. This latter course might be called for by the terms of a particular contract, or it might be rendered proper by agreement of the parties. Where a conditional certificate of this sort is given, it may not be such a certificate as is required by the contract as a condition precedent to payment; for, as shown above, where a certificate of certain form is called for, a certificate in materially different form is not sufficient.
When an architect's certificate is made a condition precedent to payment, what is the position of the contractor if it is refused? If it is refused for good cause, of course, the contractor cannot recover the payment in question. If, on the other hand, the contractor has faithfully performed his part of the contract, and can show that a certificate was refused through the fraud of the owner, then the failure to produce a certificate will be excused, and the contractor may recover in spite of it. Between those cases where the refusal is justified and those where it is fraudulent are the cases where the refusal is neither justified nor fraudulent, but unreasonable. It is often stated that where the refusal is unreasonable as well as where it is collusive or fraudulent, the contractor may recover without the certificate, after proving, of course, the unreasonable character of the refusal. Such is the law in some states. On the other hand, it is argued that the agreement of the parties gives effect to the granting or refusal of a certificate by the architect chosen, and that it changes the agreement to undo the effect of his decision merely because to a judge or to a jury that decision appears unreasonable. It has accordingly been held in some jurisdictions that nothing short of fraud will excuse the non-production of the certificate. The authorities are not uniform on the question whether fraud by the architect alone excuses non-production of the certificate or whether fraud is an excuse only if the owner participates in it.
The contract may provide that the work shall be done to the satisfaction of the architect, and that his certificates shall be given only when he is satisfied with the work. The effect given to such a contract is different in different jurisdictions. The point of difference is on the question whether the contractor is bound to satisfy the peculiar tests and opinions of the architect specified, or whether such work as would satisfy a reasonable man in the architect's position would be sufficient, so that any refusal of a certificate under these circumstances would be regarded as merely whimsical and unreasonable, and so in some jurisdictions not to prevent the contractor's recovery.