Statutory holdback
Encyclopedia
Statutory holdback or contract holdback is the legal requirement found in most common law jurisdictions' contract law
that requires an owner engaging a contractor to hold a particular percentage of payment for a stipulated length of time. This is done to ensure that any and all parties working on a contract are paid. Any subcontractors who have worked on the project are entitled to payment based on quantum meruit
, and the courts will allow a lien
against any property which their work has improved, should they not receive payment. In order to expedite and simplify the overall process, holdbacks can be claimed against by any subcontractors who are denied payment by the contractor who employed them on the project. Under these conditions, the subcontractor may collect payment from the owner, who then reduces his final payment (i.e. when releasing what remains of the holdback) to the contractor. Note that the subcontractor is entitled to payment based on quantum meruit
, irrespective of whether or not the subcontractor has privity of contract
with the owner.
In some jurisdictions, there are two or more holdbacks. For example, Ontario
, Canada
employs both a basic and a finishing holdback. The basic holdback is 10% of the total project cost, and is released after 45 days from substantial completion of a project. The finishing holdback is 10% of the value of work still left to be completed after substantial completion of the project, and is released only after 45 days from completion of the project.
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
that requires an owner engaging a contractor to hold a particular percentage of payment for a stipulated length of time. This is done to ensure that any and all parties working on a contract are paid. Any subcontractors who have worked on the project are entitled to payment based on quantum meruit
Quantum meruit
Quantum meruit is a Latin phrase meaning "what one has earned". In the context of contract law, it means something along the lines of "reasonable value of services".In the United States, the elements of quantum meruit are determined by state common law...
, and the courts will allow a lien
Lien
In law, a lien is a form of security interest granted over an item of property to secure the payment of a debt or performance of some other obligation...
against any property which their work has improved, should they not receive payment. In order to expedite and simplify the overall process, holdbacks can be claimed against by any subcontractors who are denied payment by the contractor who employed them on the project. Under these conditions, the subcontractor may collect payment from the owner, who then reduces his final payment (i.e. when releasing what remains of the holdback) to the contractor. Note that the subcontractor is entitled to payment based on quantum meruit
Quantum meruit
Quantum meruit is a Latin phrase meaning "what one has earned". In the context of contract law, it means something along the lines of "reasonable value of services".In the United States, the elements of quantum meruit are determined by state common law...
, irrespective of whether or not the subcontractor has privity of contract
Privity of contract
The doctrine of privity in the common law of contract provides that a contract cannot confer rights or impose obligations arising under it on any person or agent except the parties to it....
with the owner.
In some jurisdictions, there are two or more holdbacks. For example, Ontario
Ontario
Ontario is a province of Canada, located in east-central Canada. It is Canada's most populous province and second largest in total area. It is home to the nation's most populous city, Toronto, and the nation's capital, Ottawa....
, Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
employs both a basic and a finishing holdback. The basic holdback is 10% of the total project cost, and is released after 45 days from substantial completion of a project. The finishing holdback is 10% of the value of work still left to be completed after substantial completion of the project, and is released only after 45 days from completion of the project.
See also
- DepositDeposit accountA deposit account is a current account, savings account, or other type of bank account, at a banking institution that allows money to be deposited and withdrawn by the account holder. These transactions are recorded on the bank's books, and the resulting balance is recorded as a liability for the...
- Milestone payment