The Rascality Rule – An Eyebrow Raising Rule – in New Hampshire

Little Rascals

Until today, I had no idea there was such a rule. But apparently there is, at least in New Hampshire, and I had to share it with you, particularly since it was discussed in a construction case.

In Axenics, Inc. v. Turner Construction Company, Case No. 2011-219 (March 13, 2013), the New Hampshire Supreme Court found that Turner Construction Company (“Turner”), by requiring that its subcontractor Axenics, Inc. (“Axenics”) perform extra work to complete a project on time, and then requiring Axenics to submit documentation supporting its claim for this extra work, did not engage in conduct that “rose to the level of rascality required under” New Hampshire law.

Under the Rascality Rule, explained the Court, “the objectionable conduct must attain a level of rascality that would raise an eyebrow of someone inured to the rough and tumble world of commerce.” And, concluded the Court, while Turner knew Axenics’ claim had value, by merely requesting back-up documentation, Turner’s conduct “in the context of the ‘rough and tumble’ construction business” was not rascally enough to be considered a violation of New Hampshire law.

The Rascality Rule actually sounds quite similar to how I resolve fights between my kids. If one of them has done something that causes me to raise my eyebrow, they know they’ve crossed the line, and justice will be meted out accordingly.  As a parent, although perhaps less as a lawyer, I also like the subjectivity of the Rascality Rule – “Dad, that’s not fair!”  “Well, you see my eyebrow, it’s raised isn’t it?”

So, remember the Rascality Rule folks. It applies to both construction and non-construction cases alike, and has broad application even outside the state of New Hampshire.

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