Legal Aspects of Architecture, Engineering, and the Construction Process / Edition 7

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Overview

The primary focus of this text is to provide a bridge for students between the academic world and the real world. This bridge is built through an understanding of what is law, how law is created, how law affects almost every activity of human conduct, and how legal institutions operate. Intended mainly for architectural and engineering students, but increasingly for those in business schools and law schools, this text features a clear, concise, and jargon-free presentation. It probes beneath the surface of legal rules and uncovers why these rules developed as they did, outlines arguments for and against these rules, and examines how they work in practice. Updated with the most recent developments in the legal aspects of architectural, engineering, and the construction processes, this text is also a valuable reference for practitioners that has been cited in over twenty-five court decisions.

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Product Details

  • ISBN-13: 9780534464677
  • Publisher: CL-Engineering
  • Publication date: 5/21/2004
  • Edition description: REV
  • Edition number: 7
  • Pages: 1040
  • Product dimensions: 8.24 (w) x 9.30 (h) x 1.76 (d)

Meet the Author

Justin Sweet is the John H. Boalt Professor of Law, Emeritus at the University of California at Berkeley. Born and raised in Wisconsin, he attended the University of Wisconsin, where he received a B.A., phi beta kappa, in literature in 1951 and an LL.B. in 1953. He was note editor for the "Law Review" and Order of the Coif. After serving on the staff of the attorney general of Wisconsin, he was in the Judge-Advocate General's Corps and later practiced in Milwaukee. He joined the Boalt faculty in 1958, where

Marc M. Schneier is the Editor of "Construction Litigation Reporter" published by Thomson Reuters/West. He writes the nationally distributed Reporter covering the latest and most significant developments in construction law. Published 11 times each year, it consists of case law summaries coupled with critical analysis of the opinions, and includes occasional articles submitted by construction law practitioners. Mr. Schneier received his J.D. in 1981 from the University of California, Davis, where he was the

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Table of Contents

SOURCES OF LAW: VARIED AND DYNAMIC. Relevance. The Federal System. Constitutions. Legislation. The Executive Branch. Administrative Agencies. Courts: The Common Law. Contracting Parties. Publishers of Standardized Documents. Summary. THE AMERICAN JUDICIAL SYSTEM: A FORUM FOR DISPUTE RESOLUTION. State Court Systems: Trial and Appellate Courts. The Federal Court System. Statute of Limitation: Time to Bring the Lawsuit. Hiring an Attorney: Role and Compensation. Jurisdiction of Courts. Parties to the Litigation. Prejudgment Remedies. Pleadings. Pretrial Activities: Discovery. The Jury. Trials: The Adversary System. Judgments. Enforcement of Judgments. Appeals: The Use of Precedent. International Contracts. FORMS OF ASSOCIATION: ORGANIZING TO ACCOMPLISH OBJECTIVES. Relevance. Sole Proprietorships. Partnerships. Profit Corporations. Nonprofit Corporations. Professional Corporations. Joint Ventures. Unincorporated Associations. Loose Associations: Share-Office Arrangement. Professional Associations. Problems. THE AGENCY RELATIONSHIP: A LEGAL CONCEPT ESSENTIAL TO CONTRACT MAKING. Relevance. Policies Behind Agency Concept. Other Related Legal Concepts. Creation of Agency Relationship. Actual Authority. Apparent Authority. Problem. Termination of Agency. Disputes Between Principal and Third Party. Disputes Between Agent and Third Party. CONTRACTS AND THEIR FORMATION: CONNECTORS FOR CONSTRUCTION PARTICIPANTS. Relevance. The Function of Enforcing Contracts: Freedom of Contract. Preliminary Definitions. Contract Classifications. Capacity to Contract. Mutual Assent. Defects in the Mutual Assent Process. Consideration as a Contract Requirement. Promises Under Seal. Writing Requirement: Statute of Frauds. Problem. REMEDIES FOR CONTRACT BREACH: EMPHASIS ON FLEXIBILITY. An Overview. Relationship to Other Chapters. Money Awards and Specific Decrees: Damages and Specific Performance. Compensation and Punishment: Emergence of Punitive Damages. Protected Interests. Limits on Recovery. Cost of Dispute Resolution: Attorney's Fees. Interest. Problem. LOSSES, CONDUCT, AND THE TORT SYSTEM: PRINCIPLES AND TRENDS. Relevance to the Construction Process. Tort Law: Some Background. Negligence: The "Fault" Concept. Nonintentional Nonnegligent Wrongs: Strict Liability. Claims by Third Parties. Immunity. Misrepresentation. Duty of the Possessor of Land. Product Liability. Remedies. Problems. INTRODUCTION TO THE CONSTRUCTION PROCESS: INGREDIENTS FOR DISPUTES. Relationship to Rest of Book. The Eternal Triangle: Main Actors. The Supporting Cast on a Crowded Stage. The Construction Contract. The Delivery Systems. The Applicable Law. The Construction Site. Contract Administration. International Transactions. Unresolved Disputes and Litigation. LIMITS ON OWNERSHIP: LAND USE CONTROLS. Nuisance: Unreasonable Land Use. Soil Support. Drainage and Surface Waters. Easements for Light, Air, and View. Restrictive Covenants: Common Interest Communities (CIC). Development of Land: Expanded Public Role. Limitations on Land Use Controls: Takings. Local Land Use Control: The Process. Original Enabling Acts and Euclidean Zones: The MLDC. Flexibility: Old Tools and New Ones. Aesthetics and Control. Historic and Landmark Preservation. The Environmental Movement and Owner Liability. Judicial Review. Housing and Land Use Controls. PROFESSIONAL REGISTRATION AND CONTRACTOR LICENSING: EVIDENCE OF COMPETENCE OR NEEDLESS ENTRY BARRIER? Overview. Public Regulation: A Controversial Policy. Administration of Licensing Laws. The Licensing Process. Types of Licensing Laws. Statutory Violations. Sanctions for Licensing Law Violations. Should Contractors Be Licensed? Contractor Licensing Laws. The Unlicensed Contractor: Civil Sanctions. Indirect Effect: Forum for Consumer Complaints. The Trained but Unregistered Design Professional: Moonlighting. Problems. CONTRACTING FOR DESIGN SERVICES: PITFALLS AND ADVICE. Authority Problems. Financial Capacity. Competing for the Commission: Ethical and Legal Considerations. Professional Service Contracts: Some Remarks. Problems. PROFESSIONAL DESIGN SERVICES: THE SENSITIVE ISSUES. Range of Possible Professional Services: Fees and Insurance. Traditional Roles of Design Professional: B141-1997. Cost Predictions. Problem. Assistance in Obtaining Financing. Economic Feasibility of Project. Approval of Public Authorities: Dispute Resolution. Services of a Legal Nature. Site Services. Problem. Hazardous Materials. Who Actually Performs Services: Use of and Responsibility for Consultants. Problem. Ownership of Drawings and Specifications. Time. Cessation of Services: Special Problems of the Client-Design Professional Relationship. Problem. Judicial Remedy for Breach: Special Problems of Client-Design Professional Relationship. Problem. COMPENSATION AND OTHER OWNER OBLIGATIONS. Contractual Fee Arrangements. Time for Payment. Payment Despite Nonperformance. Other Client Obligations. Problems. PROFESSIONAL LIABILITY: PROCESS OR PRODUCT? Claims Against Design Professionals: On the Increase. Overview of Chapters 14 and 15. Claims Against Design Professionals: Some Illustrations. Specific Contract Standard. The Professional Standard: What Would Others Have Done? Expert Testimony. Implied Warranty: An Outcome Standard. Third-Party Claims: Special Problems. Special Legal Defenses. Remedies. Current Controversies: Some Observations. Problems. RISK MANAGEMENT: A VARIETY OF TECHNIQUES. Sound Economic Basis: Bargaining Power. Evaluating the Commission: Participants and Project. Contractual Risk Control. Indemnity: Risk Shifting or Sharing. Professional Liability Insurance: Risk Spreading. Preparing to Face Claims. Problems. INTELLECTUAL PROPERTY: IDEAS, COPYRIGHTS, PATENTS, AND TRADE SECRETS. Relevance to Design Professional. An Overview. The Copyright Law of 1976. Special Copyright Problems of Design Professionals. Moral Rights of Artists. Patents: Some Observations and Comparisons. Trade Secrets. PLANNING THE PROJECT: COMPENSATION AND ORGANIZATION VARIATIONS. Overview. Pricing Variations. Problems. Traditional Organization: Owner's Perspective. Modern Variations. Administrative Problems. Problems. COMPETITIVE BIDDING: THEORY, REALITIES, AND LEGAL PITFALLS. Basic Objectives Reconsidered. Competitive Bidding: Theories and Some Pitfalls. The Competitive Bidding Process. Some Legal Aspects of Competitive Bidding. Subcontractor Bids. Problems. SOURCES OF CONSTRUCTION CONTRACT RIGHTS AND DUTIES: CONTRACT DOCUMENTS AND LEGAL RULES. Contract Documents. Judicially Determined Terms. CONTRACT INTERPRETATION: CHRONIC CONFUSION. Basic Objectives. Language Interpretation: Newsom v. United States. Resolving Conflicts and Inconsistencies. Reformation of Contracts. Problems. CHANGES: COMPLEX CONSTRUCTION CENTERPIECE. Definitions and Functions of a Changes Clause: Watson Lumber Co. v. Guennewig. Shifts in Bargaining Power. Types of Changes. Change Order Mechanisms. Effect of Changes on Performance Bonds. Problems. PAYMENT: MONEY FLOW AS LIFELINE. The Doctrine of Conditions. Progress Payments. Retainage. Substantial Completion. Completion and Final Payment. Payment for Work Despite Noncompliance. The Certification and Payment Process: Some Liability Problems. Problems. EXPECTATIONS AND DISAPPOINTMENTS: SOME PERFORMANCE PROBLEMS. Introduction to Chapters 23 through 28. Affirmative Legal Doctrines: The Bases for Claims. Defenses to Claims. Restitution. Specific Applications of General Principles. Problems. DEFECTS: DESIGN, EXECUTION, AND BLURRED ROLES. Introduction: The Partnership. Basic Principle: Responsibility Follows Control. Displacing the Basic Principle: Unconscionability. Good Faith and Fair Dealing: a Supplemental Principle. Acceptance of a Project. Owner Claims and Divided Responsibility. Third-Party Claims. Claims Against Liability Insurer. Warranty (Guarantee) Clauses. Implied Warranties in the Sale of Homes: Strict Liability. Problems. SUBSURFACE PROBLEMS: PREDICTABLE UNCERTAINTY. Discovery of Unforeseen Conditions. Common Law Rule. Information Furnished by Owner. Risk Allocation Plans. Disclaimers-Putting Risk on Contractor. Contractual Protection to Contractor. Some Advice to Courts. Problems. TIME: A DIFFERENT BUT IMPORTANT DIMENSION. An Overview. Commencement. Acceleration. Completion. Schedules: Simple and Critical Path Method (CPM). Causation. Allocation of Delay Risks. Time Extensions. Unexcused Contractor Delay. Owner-Caused Delay. Third-Party Claims. Problems. CLAIMS: BY-PRODUCTS OF CONSTRUCTION PROCESS. Introduction. Measurement: Contractor Versus Owner. Measurement: Owner Versus Contractor. Certainty. Records. Consequential Damages. Avoidable Consequences: The Concept of Mitigation. Collateral Source Rule; Off-Setting Benefits. Noneconomic Losses. Punitive Damages. Cost of Dispute Resolution: Attorneys' Fees. Interest. Disputes and Settlements: Rich and Whillock v. Ashton Dev. Claims Against Multiple Parties. Security for Claims. Problems. THE SUBCONTRACTING PROCESS: AN "ACHILLES HEEL". An Overview of the Process. The Subcontractor Bidding Process. Subcontractor Selection and Approval: The Owner's Perspective. Sources of Subcontract Rights and Duties: Flow-Through Clauses. Subcontractor Defaults. Payment Claims Against Prime Contractor. Payment Claims Against Property, Funds, or People Other Than Prime Contractor. Other Subcontractor Claims. Problems. THE DESIGN PROFESSIONAL AS JUDGE: A TRADITION UNDER ATTACK. Relevance: Relation to Chapter 30. The Doctrine of Conditions. Excusing the Condition. The Design Professional as Judge: Reasons For. Jurisdiction of Decision-Making Powers. Who Can Make the Decision? The Contract as a Control on Decision-Making Powers. Procedural Matters. Finality of Design Professional Decision. Finality: A Comment. Problems. CONSTRUCTION DISPUTES: ARBITRATION AND OTHER METHODS TO REDUCE COSTS AND SAVE TIME. Introduction. The Law and Arbitration. Agreements to Arbitrate and Their Validity. Specific Arbitration Clauses: Jurisdiction of Arbitrator and Timeliness of Arbitration Requests. Waiver of Arbitration. Prehearing Activities: Discovery. Selecting Arbitrators. Place of Arbitration. Multiple-Party Arbitrations: Joinder and Consolidation. The Hearing. Substantive Standards. Remedies: Interim Relief. Award. Enforcement and Limited Judicial Review. Insurers and Sureties. Arbitrator Immunity. Arbitration and Litigation Compared. Private Systems. Adjuncts of Judicial Systems. Public Contracts. International Arbitration. Problems. INDEMNIFICATION AND OTHER FORMS OF SHIFTING AND SHARING RISKS: WHO ULTIMATELY PAYS? First Instance and Ultimate Responsibility Compared. Contribution Among Wrongdoers. Noncontractual Indemnity: Unjust Enrichment. Implied Indemnity. Contractual Indemnity. Problems. SURETY BONDS: BACKSTOPPING CONTRACTORS. Mechanics and Terminology. Function of Surety: Insurer Compared. Judicial Treatment of Sureties. Surety Bonds in Construction Contracts. Bid Bond. Performance Bond. Payment Bond. Subcontractor Bonds. Other Bonds. Some Legal Problems. Problems. TERMINATING OF A CONSTRUCTION CONTRACT: SOMETIMES NECESSARY BUT ALWAYS COSTLY. Termination: A Drastic Step. Termination by Agreement of the Parties. Contractual Power to Terminate. Termination By Law. Restitution Where a Contract is Terminated. Keeping Subcontractors After Termination. Problems. APPENDICES. Standard Form of Agreement Between Owner and Architect. Standard Form off Agreement Between Owner and Contractor. General Conditions of the Contract for Construction. Bid, Performance, and Payment Bonds. Standard Form of Agreement Between Contractor and Subcontractor. Construction Industry Dispute Resolution Procedures. Standard Form of Agreement Between Owner and Engineer for Professional Services. Standard Form of Agreement Between Owner and Contractor on the Basis of a Stipulated Price. Standard General Conditions of the Construction Contract. Subject Index. Case Index.

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  • Anonymous

    Posted September 14, 2005

    UNLESS YOU ARE STUDYING CONSTRUCTION IN LAW SCHOOL ...FORGET ABOUT IT

    WOW...way to complicated for the average UNDERGRADUATE student today. If you really want to get into the nuts and bolts about specific cases , etc...this is your book.

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