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Sources of Law: Varied and Dynamic | |
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Relevance | |
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The Federal System | |
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Constitutions | |
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Legislation | |
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The Executive Branch | |
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Administrative Agencies | |
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Courts: The Common Law | |
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Contracting Parties | |
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Publishers of Standardized Documents | |
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Summary | |
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The American Judicial System: A Forum for Dispute Resolution | |
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State Court Systems: Trial and Appellate Courts | |
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The Federal Court System | |
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Statute of Limitation: Time to Bring the Lawsuit | |
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Hiring an Attorney: Role and Compensation | |
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Jurisdiction of Courts | |
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Parties to the Litigation | |
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Prejudgment Remedies | |
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Pleadings | |
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Pretrial Activities: Discovery | |
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The Jury | |
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Trials: The Adversary System | |
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Judgments | |
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Enforcement of Judgments | |
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Appeals: The Use of Precedent | |
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International Contracts | |
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Forms of Association: Organizing to Accomplish Objectives | |
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Relevance | |
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Sole Proprietorships | |
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Partnerships | |
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Profit Corporations | |
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Nonprofit Corporations | |
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Professional Corporations, Limited Liability Companies (LLC), and Limited Liability Partnerships (LLP) | |
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Joint Ventures | |
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Unincorporated Associations | |
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Loose Associations: Share-Office Arrangement | |
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Professional Associations | |
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Problems | |
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The Agency Relationship: A Legal Concept Essential to Contract Making | |
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Relevance | |
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Policies Behind Agency Concept | |
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Other Related Legal Concepts | |
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Creation of Agency Relationship | |
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Actual Authority | |
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Apparent Authority | |
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Problem | |
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Termination of Agency | |
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Disputes Between Principal and Third Party | |
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Disputes Between Agent and Third Party | |
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Contracts and Their Formation: Connectors for Construction Participants | |
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Relevance | |
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The Function of Enforcing Contracts: Freedom of Contract | |
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Preliminary Definitions | |
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Contract Classifications | |
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Capacity to Contract | |
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Mutual Assent | |
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Defects in the Mutual Assent Process | |
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Consideration as a Contract Requirement | |
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Promises Under Seal | |
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Writing Requirement: Statute of Frauds | |
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Problem | |
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Remedies for Contract Breach: Emphasis on Flexibility | |
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An Overview | |
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Relationship to Other Chapters | |
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Money Awards and Specific Decrees: Damages and Specific Performance | |
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Compensation and Punishment: Emergence of Punitive Damages | |
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Protected Interests | |
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Limits on Recovery | |
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Cost of Dispute Resolution: Attorneys' Fees | |
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Interest | |
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Problem | |
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Losses, Conduct, and the Tort System: Principles and Trends | |
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Relevance to the Construction Process | |
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Tort Law: Background | |
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Negligence: The "Fault" Concept | |
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Nonintentional Nonnegligent Wrongs: Strict Liability | |
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Claims by Third Parties | |
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Immunity | |
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Misrepresentation | |
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Duty of the Possessor of Land | |
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Product Liability | |
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Remedies | |
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Problems | |
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Introduction to the Construction Process: Ingredients for Disputes | |
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Relationship to Rest of Book | |
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The Eternal Triangle: Main Actors | |
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The Supporting Cast on a Crowded Stage | |
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The Construction Contract | |
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The Delivery Systems | |
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The Applicable Law | |
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The Construction Site | |
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Contract Administration | |
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International Transactions | |
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Unresolved Disputes and Litigation | |
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Limits on Ownership: Land Use Controls | |
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Nuisance: Unreasonable Land Use | |
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Soil Support | |
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Drainage and Surface Waters | |
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Easements for Light, Air, and View | |
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Restrictive Covenants: Common Interest Communities (CIC) | |
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Development of Land: Expanded Public Role | |
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Limitations on Land Use Controls: Takings | |
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Local Land Use Control: The Process | |
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Original Enabling Acts and Euclidean Zones: The MLDC | |
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Flexibility: Old Tools and New Ones | |
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| |
Aesthetics and Control | |
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Historic and Landmark Preservation | |
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The Environmental Movement and Owner Liability | |
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Judicial Review | |
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Housing and Land Use Controls | |
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Professional Registration and Contractor Licensing: Evidence of Competence or Needless Entry Barrier? | |
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Overview | |
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Public Regulation: A Controversial Policy | |
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| |
Administration of Licensing Laws | |
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The Licensing Process | |
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Types of Licensing Laws | |
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| |
Statutory Violations | |
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Sanctions for Licensing Law Violations | |
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| |
Should Contractors Be Licensed? | |
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| |
Contractor Licensing Laws | |
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The Unlicensed Contractor: Civil Sanctions | |
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| |
Indirect Effect: Forum for Consumer Complaints | |
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| |
The Trained but Unregistered Design Professional: Moonlighting | |
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Problems | |
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| |
Contracting for Design Services: Pitfalls and Advice | |
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| |
Authority Problems | |
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| |
Financial Capacity | |
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| |
Competing for the Commission: Ethical and Legal Considerations | |
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| |
Professional Service Contracts: Some Remarks | |
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| |
Problems | |
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| |
Professional Design Services: The Sensitive Issues | |
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| |
Range of Possible Professional Services: Fees and Insurance | |
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| |
Traditional Roles of Design Professional: B141-1997 | |
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| |
Cost Predictions | |
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| |
Problem | |
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| |
Assistance in Obtaining Financing | |
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| |
Economic Feasibility of Project | |
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| |
Approval of Public Authorities: Dispute Resolution | |
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| |
Services of a Legal Nature | |
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| |
Site Services | |
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| |
Problem | |
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| |
Hazardous Materials | |
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| |
Who Actually Performs Services: Use of and Responsibility for Consultants | |
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| |
Problem | |
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| |
Ownership of Drawings and Specifications | |
| |
| |
Time | |
| |
| |
Cessation of Services: Special Problems of the Client-Design Professional Relationship | |
| |
| |
Problem | |
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| |
Judicial Remedy for Breach: Special Problems of the Client-Design Professional Relationship | |
| |
| |
Problem | |
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| |
Compensation and Other Owner Obligations | |
| |
| |
Contractual Fee Arrangements | |
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| |
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 | |
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| |
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 | |