The rule against "no damage for delay" clauses is based on the common law principle that courts should strictly construe clauses which work a forfeiture, a policy which arguably applies with equal force to both public and private contracts. In this regard California Civil Code section 1635 provides that public and private contracts are to be interpreted by the same rules. Thus, many California practitioners believe that the rule does or should extend generally to all construction contracts, both public and private.

[7] Finally, unusual or unfair language in a policy may not bind the insured unless brought to the insured’s attention and explained.[8] California Civil Code Section 1635 mandates that all contracts are to be interpreted according to the same rules. The paragraph here violates that basic notion, disregards long-settled authority, and should be ignored as contrary to that authority.