The text
General Laws c. 149, § 29 requires a payment bond on public construction projects. The version in force when this dispute arose read, as far as it goes:
G.L. c. 149, § 29, as then in effect — quoted in Costa v. Brait Builders Corp.
On public construction projects where the amount of the contract is more than $2,000, contracting authorities “shall obtain security by bond in an amount not less than one half of the total contract price, for payment by the contractor and subcontractors for labor performed or furnished and materials used or employed therein.”The subcontract in the case contained a provision — article 7 — under which the subcontractor waived any claim against that bond. The subcontractor sued on the bond anyway. The surety said the waiver was enforceable. The subcontractor said a public-works bond cannot be waived by private agreement.
The statute does not say.
Why it does not say
Section 29 grew out of the mechanic’s lien statute, G.L. c. 254. That statute does answer the question. Section 32 of chapter 254 declares waivers of lien rights void as against public policy. When the General Court created the bond remedy for public projects — where no lien can attach to public property — it borrowed the remedy and left the anti-waiver sentence behind.
Whether that was a choice or an oversight, the text carries no trace of it. That is the defect. Not a word doing two jobs; a word that is not there.
The two readings
This is exactly the situation Application 2 is built for: an ambiguity that will be litigated, two positions each with canon support, and a court that must choose. Here is how the sides argued it, in the court’s own account.
Waiver permitted
The General Court forbade waiver expressly in c. 254, § 32 and said nothing in c. 149, § 29. The omission is deliberate. Where the same body uses a term in one place and omits it in a parallel place, the omission is presumed intentional.
Canon: expressio unius; the presumption of consistent usage across a statutory scheme.
Waiver forbidden
Section 29 is a remedial statute construed liberally to protect subcontractors and materialmen who cannot lien public property. The public policy is strong enough that no express prohibition was needed; c. 254, § 32 says it only because that section also lists exceptions to the rule.
Canon: remedial statutes are construed broadly to effect their purpose; a statute derived from another is read in light of its source.
What the court did
The court began, as it always does, with the text — and found nothing:
The statutory text says nothing of waiver. The parties draw opposing inferences from this silence. … We need not enter this briar patch — for our purposes, it suffices to say that the text of § 29 “does not answer clearly the question posed.” Costa v. Brait Builders Corp., quoting Adams v. Boston, 461 Mass. 602, 611 (2012)
It went next to legislative history, and found that pointing both ways. Section 29 protects laborers and materialmen; the court had said so for a century. But it also serves the public — prompt completion of public projects, lower bids from subcontractors who need not hedge against slow payment. The title of the 1972 act that added § 29 to the General Laws named both purposes at once: “An Act expediting payments to general contractors and to subcontractors and improving the flow of funds in the construction industry.” St. 1972, c. 774.
The question, therefore, is not whether § 29 was designed exclusively for a public or private purpose — it was not — but rather whether the public purpose is sufficiently weighty to preclude waiver by private agreement.
The court resolved it on the structure of the whole scheme. Section 29 is an outgrowth of the lien statute, which forbids waiver; the bond requirement recurs throughout the public-construction chapters (c. 30, §§ 39F, 39M, 40; c. 149, §§ 29, 44A, 44D, 44E; c. 149A, §§ 5, 8); and the statute has always been read liberally. Reading § 29 to permit what § 32 forbids would be anomalous.
We think the better view is that § 29 embraces a substantial public policy, precluding waiver. Accordingly, we conclude that article 7 of the subcontract is unenforceable.
The subcontractor won. It took a directed verdict against him, an appeal, and the Supreme Judicial Court to get there.
The sentence that was missing
The prediction Application 2 would have made — remedial statute, source statute forbids waiver, court reads the scheme as a whole — is the result the court reached. But the more useful output is the one that makes the prediction unnecessary. The General Court had already written the sentence, in the statute § 29 was copied from. It needed to travel:
Model language — illustrative, not enacted
Section 29 of chapter 149 of the General Laws is hereby amended by adding the following paragraph:—Any provision of a contract or subcontract purporting to waive, release or limit the right of any person to claim against a bond furnished under this section shall be void as against public policy.
Thirty-four words. Against them: a subcontract drafted on the opposite assumption, a trial, an appeal, and an opinion that had to reason from the title of a 1972 act because the text gave it nothing to hold.
What this example teaches about the method
The honest lesson is uncomfortable for anyone selling a scanner. No pattern detector would have flagged § 29. There is no undefined term, no conflicting definition, no relational phrase. The defect is an absence, and absences do not match patterns.
What surfaces it is the adversarial question — what will each side argue? — asked before enactment rather than after. Run the simulation on § 29 in 1972 and the first move of the “waiver permitted” side is obvious: c. 254, § 32 forbids it expressly; you didn’t. Once that argument is on the table the drafter can close it in a sentence. That is the work Application 2 does, and it is why the system runs the simulation on provisions the drafter has decided to leave alone, not only on the ones a scan has flagged.
Sources
- Costa v. Brait Builders Corp., 463 Mass. 65 (2012), SJC-11011 (Plymouth; argued April 3, 2012; decided August 1, 2012).
- G.L. c. 149, § 29; G.L. c. 254, § 32.
- St. 1972, c. 774.
- Adams v. Boston, 461 Mass. 602 (2012); Manganaro Drywall, Inc. v. White Constr. Co., 372 Mass. 661 (1977); LaBonte v. White Constr. Co., 363 Mass. 41 (1973).