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Legal Aspects of Architecture, Engineering, and the Construction Process

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ISBN-10: 053446467X

ISBN-13: 9780534464677

Edition: 7th 2005 (Revised)

Authors: Justin Sweet, Marc M. Schneier

List price: $296.95
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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…    
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Book details

List price: $296.95
Edition: 7th
Copyright year: 2005
Publisher: Course Technology
Publication date: 5/21/2004
Binding: Hardcover
Pages: 1024
Size: 8.25" wide x 9.25" long x 1.50" tall
Weight: 4.136
Language: English

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 he taught Contracts, Construction Law, and Insurance until the early 1990s. Sweet was a visiting professor at the University of Rome (as a Fulbright Lecturer), Hebrew University,…    

For nearly thirty years, Marc M. Schneier has been the Editor of Construction Litigation Reporter, a national reporter analyzing legal developments in the construction industry, which is published by Thomson Reuters/West. He was an Adjunct Professor of Construction Law at the University of San Francisco School of Law, has published numerous articles in various legal journals, and provides consulting services. His first book was CONSTRUCTION ACCIDENT LAW: A COMPREHENSIVE GUIDE TO LEGAL LIABILITY AND INSURANCE CLAIMS, published by the American Bar Association in 1999. His most recent book is LEGAL ASPECTS OF ARCHITECTURE, ENGINEERING AND THE CONSTRUCTION PROCESS, 8th edition, co-authored by…    

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, Limited Liability Companies (LLC), and Limited Liability Partnerships (LLP)
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: Attorneys' Fees
Interest
Problem
Losses, Conduct, and the Tort System: Principles and Trends
Relevance to the Construction Process
Tort Law: 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 the 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: An Electronic Age
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 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: Concurrent Causes
Allocation of Delay Risks
Time Extensions
Unexcused Contractor Delay
Owner-Caused Delay
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: Erlich v. Menezes
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
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
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
Problem
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: FIDIC
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 Contractual 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 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 When a Contract Is Terminated
Keeping Subcontractors After Termination
Problems
Standard Form of Agreement Between Owner and Architect (AIA Doc. B141-1997)
Standard Form of Agreement Between Owner and Contractor (AIA Doc. A101-1997)
General Conditions of the Contract for Construction (AIA Doc. A201-1997)
Performance and Payment Bonds (AIA Doc. A312)
Standard Form of Agreement Between Contractor and Subcontractor (AIA Doc. A401-1997)
Construction Industry Dispute Resolution Procedures
Standard Form of Agreement Between Owner and Engineer for Professional Services (EJCDC E-500)
Suggested Form of Agreement Between Owner and Contractor for Construction Contract (Stipulated Price) (EJCDC C-520)
Standard General Conditions of the Construction Contract (EJCDC C-700)
Subject Index
Case Index