Identify Malpractice ‘Traps,’ See Excerpt on Contracts

Thursday, Nov. 5, 2020
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The Massachusetts Bar Association is in the process of updating its Traps for the Unwary publication, a member-exclusive reference guide last published in 2011 that looks at some of the malpractice hazards for attorneys who practice in a general, civil practice. We invite members to share any “traps” they’ve come across in their practice for possible inclusion in the next edition.

Share your trap suggestion by emailing it to Attorney James E. Harvey Jr. of O’Malley and Harvey LLP, who is again serving as editor-in-chief for the project and is working closely with liaisons from several MBA section councils.

To help you identify potential traps, the MBA will periodically publish excerpts from Traps for the Unwary in eJournal. View this week’s trap, plus previously shared examples, below.


J. Contract breach treated as a tort claim. If the “gist” of a breach of contract claim is a tort claim, the three-year tort statute, not the six-year contract statute, will apply.  Massachusetts Housing Opportunities Corp. v. Whitman & Bingham Associates, P.C., 83 Mass. App. Ct. 325, 330, 983 N.E.3d 734 (2013). Also see M.G.L. c. 260, § 4, which provides a three-year, not six-year, limitations period for breach of contract claims alleging malpractice by attorneys, accountants and other professionals, and providing a three-year period for other types of claims.

K. Contract claims against the commonwealth. Three years, M.G.L. c. 260, § 3A, even though the usual statute of limitations for breach of contract is six years. Wong v. University of Massachusetts, 438 Mass. 29, 35, 777 N.E.2d 161 (2002), and Cameron Painting, Inc. v. University of Massachusetts, 83 Mass. App. Ct. 345, 348, 983 N.E.2d 1210 (2013). The limitations period for all claims against the commonwealth is three years. Flaherty v. Sheriff of Suffolk County, 87 Mass. App. Ct. 157, 26 N.E.3d 1124 (2015).

L. Contract for sale under Uniform Commercial Code. Four years (not the usual 6-year statute for breach of contract) and can be reduced by the terms of the contract to not less than one year. It cannot be extended by contract. M.G.L. c. 106, § 2-725.

M. Contractually shortened limitations periods. A contractually-shortened limitations period can be valid, so long as the shortened period is reasonable. But it is not reasonable if it does not permit operation of the discovery rule, and it is not reasonable in a contract of adhesion. Creative Playthings Franchising Corp. v. Reiser, 463 Mass. 758, 763, 978 N.E.2d 765 (2012). In addition, “imposition of a contractually shortened limitations period on tort-based consumer protection claims violates public policy.” Brown v. Sav. Bank Life Ins. Co., 93 Mass. App. Ct. 572, 582, 107 N.E.3d 1163 (2018).