LEEP Mats are generally constructed of Douglas
Fir Grade 1 lumber. Mats are put through a rigorous
inspection process prior to being assigned a grade
and becoming available for use.
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USED MATS
• Condition: Very Good
• General Use: – Crane Mats
– Digging Mats
– Outrigger Pads
• Condition: Good
• General Use: – Crane Mats
– Digging Mats
– Outrigger Pads
• Condition: Fair
• General Use: – Access Mats
– Digging Mats
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LEGAL
What does the well-informed subcontractor
look for? First, usually (but not
always) in the payment section of its (sub)
contract, the subcontractor should look for
any language that suggests that payment
is conditioned on its customer receiving
money from an upstream party. Does the
language make the upstream party’s payment
to the customer an absolute condition
precedent to the subcontractor? If so,
you likely are dealing with a “pay if paid”
provision. If not, it is probably a “pay when
paid” clause. To make sure, it is wise for the
subcontractor to seek knowledgeable counsel
in the jurisdiction in which it is operating
to assist with this endeavor.
Next, the subcontractor should find
out when and how, if at all, the clause is
enforceable in the particular jurisdiction.
Again, knowledgeable local counsel is the
best source of current information here, but
some of the possibilities are:
1. Conditional payment clauses are
enforceable as a matter of contract
law but not in defense to a claim for a
mechanic’s/construction/contractor’s
lien, and “pay when paid” provisions
are enforceable as a defense as a matter
of contract law only for a “reasonable
period of time” (i.e., Illinois);
2. With some exceptions, any provision
purporting to make the owner’s payment
to a first-tier contractor a condition
precedent to the first-tier contractor’s
payment to a subcontractor, supplier,
or service provider is void, but
not otherwise (i.e., Wisconsin);
3. Conditional payment clauses generally
are void as a matter of statute (i.e.,
North Carolina);
4. Conditional payment clauses generally
are void as a matter of public policy
determined by courts (i.e., California,
New York).
Construction involves plenty of risk to
each party involved in the process. The risk
that a prime contractor faces – potentially
having to pay all of its subcontractors when
it has not been paid the money earmarked
for a given subcontractor – is a risk that
it (understandably, from its perspective)
would like to allocate to others as much
as possible. Subcontractors understandably
would prefer not to assume that risk,
although competition may work to pressure
for its acceptance. What is clear is
that parties should look for the existence
of any such provision in their contracts and
A prime contractor may have a “pay if paid”
clause in its “standard” form subcontract
and may use it even where it is not likely to
be enforceable just to create the impression
on an uneducated subcontractor that
the latter will have to wait for the owner
to pay the prime contractor in order for
the subcontractor to collect its money.
112 | EDITION 5 2019 www.piledrivers.org
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