Title 28, Title 28

A contract not in writing may be altered in any respect by consent of the parties in writing without a new consideration and is extinguished thereby to the extent of the new alteration.

A contract in writing may be altered by a contract in writing or by an executed oral agreement, and not otherwise.

When, through fraud or a mutual mistake of the parties or a mistake of one party while the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised on the application of a party aggrieved so as to express that …

For the purpose of revising a contract, it must be presumed that all the parties thereto intended to make an equitable and conscientious agreement.

In revising a written instrument, the court may inquire what the instrument was intended to mean and what were intended to be its legal consequences and is not confined to the inquiry what the language of the instrument was intended to be.

A contract may be first revised and then specifically enforced.

(1) A contract may be extinguished in the same manner as any other obligation and also in the manner prescribed by part 16 and this part. (2) A contract is extinguished by its rescission.

The destruction or cancellation of a written contract or of the signature of the parties liable thereon with intent to extinguish the obligation thereof extinguishes it as to all the parties consenting to the act.

(1) The intentional destruction, cancellation, or material alteration of a written contract by a party entitled to any benefit under the contract or with the party's consent extinguishes all the executory obligations of the contract in that party's favor against parties who do no…

A party to a contract may rescind the contract in the following cases only: (1) if the consent of the party rescinding or of any party jointly contracting with the party rescinding was given by mistake or obtained through duress, menace, fraud, or undue influence exercised by or …

A stipulation that errors of description shall not avoid a contract or shall be the subject of compensation, or both, does not take away the right of rescission for fraud or for mistake where such mistake is in a matter essential to the inducement of the contract and is not capab…

Rescission, when not effected by consent, can be accomplished only by the use on the part of the party rescinding of reasonable diligence to comply with the following rules: (1) The rescinding party shall rescind promptly upon discovering the facts that entitle the party to resci…

The rescission of a written contract may be adjudged on the application of a party aggrieved: (1) in any of the cases mentioned in 28-2-1711; (2) where the contract is unlawful for causes not apparent upon its face and the parties were not equally in fault; or (3) when the public…

Rescission cannot be adjudged for mere mistake unless the party against whom it is adjudged can be restored to substantially the same position as if the contract had not been made.

On adjudging the rescission of a contract, the court may require the party to whom such relief is granted to make any compensation or restoration to the other which justice may require.

All persons are capable of contracting except minors, persons of unsound mind, and persons deprived of civil rights. Minors and persons of unsound mind have only such capacity as is defined by this part, 28-10-104, and Title 41, chapter 1.

A person entirely without understanding has no power to make a contract of any kind, but the person is liable for the reasonable value of things furnished to the person necessary for the support of the person or the person's family.

A conveyance or other contract of a person of unsound mind but not entirely without understanding, made before the person's incapacity has been judicially determined, is subject to rescission as provided in part 17 of this chapter.

A person of unsound mind cannot disaffirm a contract, otherwise valid, to pay the reasonable value of things necessary for the person's support or that of the person's family, entered into by the person when not under the care of a parent or guardian able to provide for the perso…

A contract made expressly for the benefit of a third person may be enforced by the third person at any time before the parties to the contract rescind the contract.

A nonnegotiable written contract for the payment of money or the delivery of personal property may be transferred by endorsement the same as a negotiable instrument. The endorsement transfers all the rights of the assignor under the contract to the assignee, subject to all equiti…

As used in this part, unless the context requires otherwise, the following terms apply: (1) "Construction contract" means a written agreement between an owner and a contractor for the contractor to construct or improve or to provide construction management for the construction or…

(1) Performance by a contractor of a construction contract in accordance with the provisions of the contract entitles a contractor to payment from the owner. (2) Performance by a subcontractor of a subcontract entitles the subcontractor to payment from the contractor.

(1) (a) Except as provided in 28-2-2115, each construction contract governed by this section must define, within the contract, a monthly billing cycle for the contractor to submit monthly progress payment requests and final payment requests to the owner. The contractor shall subm…

(1) If a periodic or final payment that is required by a construction contract to be paid by an owner to a contractor is delayed by more than 30 days from the date the payment is required by the contract to be made, the owner shall pay to the contractor interest, beginning on the…

In a civil action on a contract to enforce an obligation imposed by this part, the prevailing party is entitled to reasonable attorney fees and costs, both for trial and appeal. If the parties to a construction contract or subcontract use arbitration, the arbitrator may award fee…

The remedies provided by this part are not exclusive of any other remedy provided by law or contract.

The provisions of this part do not apply to residential projects or improvements to real property intended for residential purposes with a total cost of less than $400,000.

(1) The maximum retainage applied to construction contracts subject to the provisions of this part may not exceed 5%. (2) The retainage percentage withheld by an owner, as provided in subsection (1), from a construction contractor is the maximum retainage that a construction cont…

(1) Except as provided in subsections (2) and (3), a construction contract provision that requires one party to the contract to indemnify, hold harmless, insure, or defend the other party to the contract or the other party's officers, employees, or agents for liability, damages, …

(1) A construction contract may provide for a billing cycle other than a monthly billing cycle if the construction contract specifically sets forth another billing cycle and either of the following applies: (a) a notice in substantially the following form, setting forth the other…

(1) A provision, covenant, clause, or understanding that is in, collateral to, or affects a construction contract for a project in this state and that makes the contract subject to the laws of another state or that requires any litigation, arbitration, or other dispute resolution…

(1) (a) A contractor may suspend performance under a construction contract for failure by the owner to make timely payment of the amount approved pursuant to 28-2-2103, and the contractor may terminate the construction contract if the payment obligations are not satisfied within …

(1) For the purposes of this section, "residential construction contract" means a contract between a general contractor and an owner for the construction of a new residence. (2) All residential construction contracts that are subject to the provisions of this section must be in w…

(1) This section applies only to the sale of a newly constructed residence that has not been previously occupied and where the seller is the builder or a developer who has built or had the residence built for the purpose of resale. (2) A builder or developer that is subject to th…

The consent of the parties to a contract must be: (1) free; (2) mutual; and (3) communicated by each to the other.

A consent which is not free is nevertheless not absolutely void but may be rescinded by the parties in the manner prescribed by part 17 of this chapter.

Consent is not mutual unless the parties all agree upon the same thing in the same sense, but in certain cases defined by chapter 3, they are to be deemed so to agree without regard to the fact.

A contract which is voidable solely for want of due consent may be ratified by a subsequent consent.

(1) An apparent consent is not real or free when obtained through: (a) duress; (b) menace; (c) fraud; (d) undue influence; or (e) mistake. (2) Consent is deemed to have been obtained through one of the causes mentioned in subsection (1) only when it would not have been given had …

Duress consists in: (1) unlawful confinement of the person of the party, of the husband or wife of such party, or of an ancestor, descendant, or adopted child of such party, husband, or wife; (2) unlawful detention of the property of any such person; or (3) confinement of such pe…

Menace consists in a threat of: (1) such duress as is specified in subsections (1) and (3) of 28-2-402; (2) unlawful and violent injury to the person or property of any such person in circumstances described in 28-2-402; or (3) injury to the character of any such person.

Fraud is either actual or constructive. Actual fraud is always a question of fact.

Actual fraud, within the meaning of this part, consists in any of the following acts committed by a party to the contract or with the party's connivance with intent to deceive another party to the contract or to induce the other party to enter into the contract: (1) the suggestio…

Constructive fraud consists of: (1) any breach of duty that, without an actually fraudulent intent, gains an advantage to the person in fault or anyone claiming under the person in fault by misleading another person to that person's prejudice or to the prejudice of anyone claimin…