Legal Aspects of Architecture, Engineering and the Construction Process 6th edition (9780534953232) - Textbooks.com
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Legal Aspects of Architecture, Engineering and the Construction Process

Legal Aspects of Architecture, Engineering and the Construction Process - 6th edition

Legal Aspects of Architecture, Engineering and the Construction Process - 6th edition

ISBN13: 9780534953232

ISBN10: 0534953239

Legal Aspects of Architecture, Engineering and the Construction Process by Justin Sweet - ISBN 9780534953232
Edition: 6TH 00
Copyright: 2000
Publisher: Brooks/Cole Publishing Co.
Published:
International: No
Legal Aspects of Architecture, Engineering and the Construction Process by Justin Sweet - ISBN 9780534953232

ISBN13: 9780534953232

ISBN10: 0534953239

Edition: 6TH 00

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Summary

Written primarily for readers interested in the legal aspects of advanced architecture, engineering, and construction management, the sixth edition of this classic book provides a bridge between the academic and real worlds. The text is also a valuable reference for practitioners and it has been cited in over twenty-five court decisions. The sixth edition has been updated to include the most up-to-date information on new developments in the legal applications of architectural, engineering, and the construction processes.

  • Many new cases dealing with the most current laws have been included, such as the limits on land use controls, disputes, construction accidents and third party claims.
  • Table of Abbreviations assists readers in understanding legalese.
  • Includes case index.
  • Major AIA documents are included in Appendixes A-E.
  • Appendix F includes the most up to date Construction Industry Dispute Resolution Procedures (Including Mediation and Arbitration Rules) published by the American Arbitration Association.
  • Updated to include the most recent Engineers Joint Contract Documents Committee documents - Appendixes G-I.
  • Includes both classic and modern cases covering architecture, engineering and construction law that have been consolidated and integrated into the discussions.
  • Appendixes are valuable pedagogical tools - they provide readers with standard form contracts that are discussed in the text.
  • Complete coverage of legal issues relating to engineering design and the construction process.
  • Problems at the end of chapters present hypothetical scenarios, then ask students to apply what they have learned. Problems are also useful during class discussion.
  • Straightforward language and clear explanations demystify legal jargon and make legal citation more understandable for students.

Author Bio

Sweet, Justin : University of California-Berkeley

Table of Contents

Table of Contents

1. 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.

2. 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.

3. 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 .

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. LIMITS ON OWNERSHIP: LAND USE CONTROLS.

Nuisance: Unreasonable Land Use.
Soil Support.
Drainage and Surface Waters.
Easements for Light, Air, and View.
Restrictive Covenants.
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.

10. 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.

11. 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.

12. 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.

13. COMPENSATION AND OTHER OWNER OBLIGATIONS.

Contractual Fee Arrangements.
Time for Payment.
Payment Despite Nonperformance.
Other Client Obligations.
Problems.

14. 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.

15. 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.

16. 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.

17. PLANNING THE PROJECT: COMPENSATION AND ORGANIZATION VARIATIONS.

Overview.
Pricing Variations.
Problems. Traditional Organization: Owner's Perspective.
Modern Variations.
Administrative Problems.
Problems.

18. 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.

19. SOURCES OF CONSTRUCTION CONTRACT RIGHTS AND DUTIES: CONTRACT DOCUMENTS AND LEGAL RULES.

Contract Documents.
Judicially Determined Terms.

20. CONTRACT INTERPRETATION: CHRONIC CONFUSION.

Basic Objectives.
Language Interpretation: Newsom v. United States.
Resolving Conflicts and Inconsistencies.
Reformation of Contracts.
Problems.

21. 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.

22. 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.

23. 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.

24. 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.

25. 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.

26. 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.

27. 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 & Whillock v. Ashton Dev..
Claims Against Multiple Parties.
Security for Claims.
Problems.

28. 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 Persons Other Than Prime Contractor.
Other Subcontractor Claims.
Problems.

29. THE DESIGN PROFESSIONAL AS JUDGE: A TRADITION UNDER ATTACK.

Relevance.
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.

30. 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.

31. 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.

32. 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.

33. 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.



APPENDIX A: STANDARD FORM OF AGREEMENT BETWEEN OWNER AND ARCHITECT.
APPENDIX B: STANDARD FORM OF AGREEMENT BETWEEN OWNER AND CONTRACTOR.
APPENDIX C: GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION.
APPENDIX D: BID, PERFORMANCE, AND PAYMENT BONDS.
APPENDIX E: STANDARD FORM OF AGREEMENT BETWEEN CONTRACTOR AND SUBCONTRACTOR.
APPENDIX F: CONSTRUCTION INDUSTRY DISPUTE RESOLUTION PROCEDURES.
APPENDIX G: STANDARD FORM OF AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES.
APPENDIX H: STANDARD FORM OF AGREEMENT BETWEEN OWNER AND CONTRACTOR ON THE BASIS OF A STIPULATED PRICE.
APPENDIX I: STANDARD GENERAL CONDITIONS OF THE CONSTRUCTION CONTRACT.
SUBJECT INDEX.
CASE INDEX.