Contracts & ExecutionQuestion 885 of 1632

An 'attorney fees' clause in a contract typically provides that:

a.Each party pays its own lawyer, whatever the outcome may be
b.Only the owner may recover fees, never the contractor who wins
c.The prevailing party may recover reasonable fees from the loser
d.Attorney fees are capped at five percent of the contract price

Explanation

California follows the American rule: Code of Civil Procedure §1021 leaves each side to bear its own attorney's fees unless a contract or a statute says otherwise, so (a) describes the DEFAULT the clause exists to displace. Civil Code §1717 then does something drafters often do not expect — it makes any contractual fee clause reciprocal, so a clause written to protect one side alone still entitles whichever party prevails to recover, which is why (b) is wrong even when the contract says exactly that. (d) invents a cap; 'reasonable' is fixed by the court on the work actually done. Some fee entitlements come from statute rather than contract: B&P §7108.5(c) gives fees to the prevailing party in an action for wrongfully withheld subcontractor payments.

Law Reference: Code Civ. Proc. §1021; Civil Code §1717; cf. Bus. & Prof. Code §7108.5(c)

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