When you hire a contractor to build your new house, and the contractor goes out of business, can you sue the subcontractors for their lousy work that is costing you money to repair?
The Illinois Supreme Court recently declared, no, you cannot.
In every new home construction between you and your contractor, the contractor must give you what's called an "implied" warranty on the workmanship and materials. The warranty is that such workmanship and materials are fit for the purpose which they are intended.
That means the roof should not leak. The lights should light up. The toilets should flush down. And the furnace should heat without peeling the paint. And the paint should not be peeling anyway.
The contractor you contracted with to build this allegedly beautiful home will often hire contractors who specialize in putting on the roof, wiring the lights, affixing the toilets, installing the furnace and painting the walls. These contractors hired by your contractor are called subcontractors.
Typically, your contract is only with the one contractor you contracted to build the house. You agree to pay the contractor, often called the general contractor, a sum of money in exchange for the construction (possibly combined with buying the lot from the contractor who might be the owner).
Illinois law requires that, even if your construction contract with your general contractor doesn't have any language in which the contractor specifically pledges the work and materials to be fit for their intended purposes, such pledge is "implied" from the contract. This is true whether the general did the work him/her/itself, or through a subcontractor hired by the general.
But, said the Illinois Supreme Court, such implied warranty right does not exist between you, the buyer of the house project, and the subcontractors hired by your general contractor to perform their specialized work or deliver their specialized materials.
That's been a fuzzy area of Illinois law for some years, with some courts saying that the implied warranty does extend between buyer and the sub, and other courts saying no.
The Supremes reasoned that warranties that are "implied" arise out of the contractual relationship between you and the general contractor. The contract is a pledge between parties to perform or refrain from performing. No pledge is made between you and the subs hired by your general because there's no contract between you and the subs.
If there is defective workmanship or materials provided by the sub, the general owes you the repair/replacement (and the sub might owe the general because of the violation of contractual pledges between the general and the sub).
The problem for you the buyer arises when the defect doesn't become apparent till after the house is done, the lot is bought and the general gets demoted into a private-first-class financial/legal oblivion.
Whom do you seek recovery from if the general is out of business with no money to be had? You will have to foot the bill for the bad footings put in by the lousy mason.
That is now the concrete law painted by the court in a framework that subcontractors will find electrifyingly gratifying.
But that's implied.
Brett Kepley is a lawyer with Land of Lincoln Legal Aid Inc. You can send your questions to The Law Q&A, 302 N. First St., Champaign, IL 61820. Questions may be edited for space.