Title 28, Title 28

Conditions may be precedent, concurrent, or subsequent.

A condition precedent is one which is to be performed before some right dependent thereon accrues or some act dependent thereon is performed.

Conditions concurrent are those which are mutually dependent and are to be performed at the same time.

A condition subsequent is one referring to a future event upon the happening of which the obligation becomes no longer binding upon the other party if the other party chooses to take advantage of the condition.

Before a party to an obligation can require another party to perform any act under it, the party shall fulfill all conditions precedent to the act imposed upon that party and must be able and offer to fulfill all concurrent conditions imposed upon that party on the like fulfillme…

If a party to an obligation gives notice to another, before the latter is in default, that the party will not perform the obligation and does not retract the notice before the time at which performance upon that party's part is due, the other party is entitled to enforce the obli…

A condition involving a forfeiture must be strictly interpreted against the party for whose benefit it is created.

If an obligation requires the performance of one of two acts in the alternative, the party required to perform has the right of selection unless it is otherwise provided by the terms of the obligation.

If the party having the right of selection between alternative acts does not give notice of the selection to the other party within the time, if any, fixed by the obligation for that purpose or, if a time is not fixed, before the time at which the obligation ought to be performed…

The party having the right of selection between alternative acts must select one of them in its entirety and cannot select part of one and part of another without the consent of the other party.

If one of the alternative acts required by an obligation is such as the law will not enforce or becomes unlawful or impossible of performance, the obligation is to be interpreted as though the other or others stood alone.

A contract is an agreement to do or not to do a certain thing.

It is essential to the existence of a contract that there be: (1) identifiable parties capable of contracting; (2) their consent; (3) a lawful object; and (4) a sufficient cause or consideration.

A contract is either express or implied. An express contract is one the terms of which are stated in words. An implied contract is one the existence and terms of which are manifested by conduct.

An executed contract is one the object of which is fully performed. All others are executory.

Successive actions may be maintained upon the same contract or transaction whenever after the former action a new cause of action arises therefrom.

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, …