779.135 Construction contracts, form of contract. The following provisions in contracts for the improvement of land in this state are void:
(1) Provisions requiring any person entitled to a construction lien to waive his or her right to a construction lien or to a claim against a payment bond before he or she has been paid for the labor, services, materials, plans, or specifications that he or she performed, furnished, or procured.
(2) Provisions making the contract subject to the laws of another state or requiring that any litigation, arbitration or other dispute resolution process on the contract occur in another state.
(3) Provisions making a payment to a prime contractor from any person who does not have a contractual agreement with the subcontractor, supplier, or service provider a condition precedent to a prime contractor's payment to a subcontractor, supplier, or service provider. This subsection does not prohibit contract provisions that may delay a payment to a subcontractor until the prime contractor receives payment from any person who does not have a contractual agreement with the subcontractor, supplier, or service provider.
History: 1993 a. 213 ss. 164, 165; Stats. 1993 s. 779.135; 2005 a. 204.
Section 779.135 (1) voids a contract provision that requires a subcontractor to waive its right to a construction lien before it can get paid. Section 779.05 (1) specifically allows a subcontractor who has signed a contract containing a lien waiver provision to refuse to furnish the waiver unless paid in full for the work or material to which the waiver relates. Thus a subcontractor facing a void construction lien waiver contract provision with a choice: it can either tender a lien waiver prior to being paid or refuse to do so until it is paid. Tri-State Mechanical, Inc. v. Northland College, 2004 WI App 100, 273 Wis. 2d 471, 681 N.W.2d 302, 03-2182.
A contractual forum selection clause requiring litigation in another state contravened sub. (2) and was void. McCloud Construction, Inc. v. Home Depot USA, Inc. 149 F. Supp. 2d 695 (2001).