Section 1: Legal and Administrative Terms Flashcards
(191 cards)
1
Q
cost incurred by a contractor when the project is interfered with by the owner, in such a way, that the contractor must employ more manpower or work more hours in order to complete the project on time. If the contractor contributes to the cause of its own delays, _________ cost may not be granted.
A
ACCELERATION COST
2
Q
act of a person to whom a thing is offered by another whereby he receives the thing with the intention of retaining it, such intention being evidenced by a sufficient act.
A
ACCEPTANCE
3
Q
action by a party to a contract that causes the other party of the contract to not complete the work of the project on time or in the manner established by the contract writing. Positive action must be per-formed on the part of the interfering party as opposed to passive negligence, which is inactive, permissive, or sub-missive.
A
ACTIVE INTERFERENCE
4
Q
damages resulting from real and substantial loss, as opposed to those which are merely theoretical, estimated, or anticipated. _________ represent the real and true value of the total loss suffered, as opposed to liquidated damages, which represent an estimated amount calculated as anticipated loss at a future time.
A
ACTUAL DAMAGES – (ACTUAL LOSS)
5
Q
modifications to the contract documents issued during the bid period. _________ become official parts of the contract documents and are legally binding to the signatories of the contract.
A
ADDENDA
6
Q
parties to a contract are in an arms-length relationship to one another as a result of the commitment they have made to each other in the con-tract terms and conditions. This relationship is recognized by the courts and binds the two parties together in that relationship. In layman’s language, it can be considered a relationship of mistrust.
A
ADVERSARY
7
Q
a person authorized by another to act for him or her; one who is employed to represent another in business and legal dealings with third persons. In a typical relationship, three parties are involved: a principal, a(n) ______, and a third party. The _____ represents the principal in dealing with the third party or parties.
In the construction industry, a typical misunderstanding is that the Landscape Architect is the agent to the owner in dealing with the third-party con-tractor. The Landscape Architect, in a typical contract, is the representative of the owner and not of the agent. In some contracts, the construction manager is an agent of the owner.
A
AGENT
8
Q
_________ is a sum of money set aside by the owner to remove a particular portion of work from competitive bidding. This is typical of government-subsidized institutions with work that must be competitively bid and with projects in which certain portions of the work are proprietary and, therefore, must be removed from competitive bidding.
A
ALLOWANCE
9
Q
a material or method used in place of the base material or method specified for the project. In a typical construction contract, the owner chooses the _______ or remains with
the base requirement, giving it control over the total cost of the project. An _________ differs from an option in that cost is a factor in the selection of an _____________ by the owner, whereas an option does not have cost as a factor and the choice is made by the contractor.
A
ALTERNATE
10
Q
doubtfulness; doubtfulness of meaning, duplicity, indistinctness, or uncertainty of meaning of an expression used in a written instrument. The courts, interpreting a writing, will permit parol evidence to clarify the writing if the writing is in fact _______. However, the courts will not permit parol evidence if the writing is clear, even though it may be in error.
A
AMBIGUITY
11
Q
established when a contractor makes a positive and unequivocal statement that it will not or cannot substantially perform the contract or when a contractor, by any voluntary affirmative act, renders substantial performance of its contract apparently impossible. Based on these two conditions, the owner may terminate the contract immediately or upon completion of a waiting period to determine the contractor’s performance according to the contract writing. In either case, the owner must establish that the con-tractor’s statement is positive and unequivocal. If the owner terminates the contractor for default after a statement which is ambiguous, the owner will be held to have wrongfully defaulted the contractor.
A
ANTICIPATORY BREACH – (ANTICIPATORY REPUDIATION)
12
Q
_____________ are federal and state statutes to protect trade and commerce from unlawful restraints and monopolies. In the construction industry, bid rigging is considered a violation of ___________ laws. Those found guilty of bid rigging are assessed treble damages. (See BID RIGGING)
A
ANTITRUST LAWS
13
Q
__________ is an agency relationship created by an act of the parties and deduced from proof of other facts.
A
APPARENT AGENCY
14
Q
the submission of a dispute to a third party (individual or panel), known as __________(s), whose judgment is final and binding. Decisions at __________ hearings, unlike those in judicial cases, do not establish precedents.
A
ARBITRATION
15
Q
One who resolves disputes between two parties. In typical construction contacts, the Landscape Architect is designated as an ______________ in resolving the disputes between the owner and the contractor. Unlike formal ____________, a Landscape Architect acting as _________ in the construction process is the first level for resolving disputes, and its decisions are not final and binding.
A
ARBITRAROR
16
Q
This is the person or organization hired by the owner to design the project. The _________’s duties consist primarily of the production of the plans and the specifications from which the building will be constructed. The _________ may also preside at the bid opening, monitor the construction process to assure that the owner’s interests are protected, and approve payments for the contractor. Its relationship to the owner is that of an independent contractor. All __________ must be licensed by the state in which they practice. In addition to the contract with the owner, the _________ also will enter into contracts with consultants (structural, mechanical, electrical, engineers, etc.) but will not execute a contract with the contractor.
A
LANDSCAPE ARCHITECT
17
Q
___________ is a legal action which allows a person who is not party to a contract to obtain the contracts rights of a party who is.
For example - A contractor may __________ the rights contained in its contract with the owner to a subcontractor. The LA will _________ portions of the design to other consultants where necessary.
A
ASSIGNMENT
18
Q
The act or process of taking, apprehending, or seizing person or property by virtue of a writ, summons, or other judicial order and bringing the same into custody of the law. A remedy ancillary to an action by which the plaintiff is enabled to acquire a lien upon the property or effects of the defendant for satisfaction of judgement which the plaintiff may have obtained.
A
ATTACHMENT
19
Q
an improvement brought upon on estate which enhances its value more than mere repairs. The improvement may either be temporary or permanent. This term also applies to denote the additional value which an estate acquires in consequence of some public improvement, such as the widening of a street, etc.
A
BETTERMENT
20
Q
an offer to perform a contract for work and labor or for supplying materials at a specified price. In the construction industry, a _____ is considered an offer by the contractor to the owner. A ____ becomes a contract once the owner accepts the bidder’s offer with all other contractual requirements in order.
A
BID
21
Q
a clearing house for subcontractors to submit their bids for a particular project and for prime contractors to receive _______ from the various subcontractors.
A
BID DEPOSITORY
22
Q
the act of not allowing a ____ to stand because of an impropriety in the process of submission or as a result of the owner’s arbitrary decision to reject it. The owner, in typical contract, reserves the right to reject any and all _____.
A
BID REJECTION
23
Q
an independent administration quasi-judicial board to decide all public contract disputes. Various states have created these boards to relieve the courts from backlog of cases related to public and not to private contracts.
A
BOARD OF CONTRACT APPEALS
24
Q
a term used to represent standard legal conditions inserted at the “front end” of a construction contract. These conditions are typically titled “ General Conditions,” “Supplemental Conditions,” and/or “Special Conditions” and are inserted at the front end of the project manual.
A
BOILER PLATE
25
an instrument with a clause, with a sum fined as a penalty, binding the parties to pay the same, and with the condition that the payment of the penalty may be avoided by the performance of certain acts by some, one, or more of the parties; a certificate or evidence of a debt; a mere promise to perform or pay.
BOND
26
one whose occupation is the building or erection of structures, the controlling and directing of construction, or the remodeling and adapting to particular uses of buildings and other structures
BUILDER
27
there are several model codes, including Southern Standards Building Code, Uniform Building Code, Building Officials and Code Administrators, National Building Code, and the International Building Code one of which is enacted in most jurisdictions. A code is not applicable in certain jurisdictions to locality until it is enacted (legislated) into local law.
BUILDING CODE
28
the attribute of persons which enables them to perform civil or or juristic acts; necessary for parties entering into a contract.
CAPACITY
29
the aggregate of reported cases forming a body of jurisprudence or the law of a particular subject as evidence or formed by the adjudged cases; distinct from statutes and other sources of written law
CASE LAW
30
a caution; literally, "let him beware"
CAVEAT
31
a written assurance, or official representation, that some act has or has not been done, that some event occurred, or that some legal formality is being complied with; a written and signed document establishing that a fact is true.
CERTIFICATE
32
a document issued by the building inspector certifying that the structure conforms to all relevant codes sections and is, therefore, safe for use. An owner must obtain a __________________ before he can use the building. A new building cannot be considered complete until a ______________ has been issued. In some instances, a partial _____________ will be issued for portions of the building to be occupied.
CERTIFICATE OF OCCUPANCY
33
a document issued by the landscape architect in which the landscape architect verifies that the contractor has adequately performed. The ____________ is then presented to the owner to allowing them to pay the contractor.
CERTIFICATE OF PAYMENT
34
the document issued by the Landscape Architect when the building, or portion of the building is complete to the degree that the owner can use the building, or a portion thereof, for its intended purpose.
CERTIFICATE OF SUBSTANTIAL COMPLETION
35
a revision to the original contract documents. A change differs from a modification in that the modification is agreed to by both parties of the contract; however, a change may be made unilaterally by the owner in spite of the contractor's lack of agreement.
CHANGE
36
a document issued by the Landscape Architect directing the contractor to erect some portion of the building in a manner different than described in the original plans and specifications. This change must have an effect on the price and/or time of the contract in order to constitute a _______________. If the price and/or time is not affected, then the change field is a field order or minor change and a _____________. The change may be requested by the Landscape Architect, owner, or contractor.
CHANGE ORDER
37
a demand, an assertion, a pretense, a right or title to. An action initiated by one of the parties of a contract against the other party. This action may be in the form of a written letter, a legal document, or some instrument establishing the difference between the two parties.
CLAIM
38
legal status granted to a Landscape Architect in the quasi-judicial role as arbitrator in settling a dispute between the owner and the contractor. This cloak protects the Landscape Architect from liability by either party (owner or contractor) as a result of the decision rendered in resolving the dispute.
CLOAK OF IMMUNITY
39
an agreement between two or more presents defraud a person of his or her right by the forms of law or to obtain an object forbidden by law; a secret combination, conspiracy, or concert of action between two or more persons for fraudulent or deceitful purposes.
COLLUSION
40
a process whereby sealed proposals are submitted to the owner for the consideration. Competitive bidding is mandatory on public works projects. A private owner may choose to use competitive bidding in securing the most economical contractor for the construction process.
COMPETITVE BIDDING
41
the inducement to a contract; the cause, motive, price, or impelling influence which induces a contracting party to enter into a contract; the reason or material cause of a contract.
CONSIDERATION
42
the written instrument agreed upon by the people of the United States, or of a particular stat, as the absolute rule of the action and decisions for all departments and officers of the government in respect to all points covered by it. The instrument must control until it is changed by the authorities which established it. Any act or ordinance of any government department or office opposed to it is null and void.
Several states have enacted statutes which have affected the construction industry and have been found unconstitutional or null and void in their application. One such statute is the statute of limitations which is applied for the protection of the owner and Landscape Architect but not for the contractor.
CONSTITUTION
43
a process of professional management applied to a construction program from conception to completion for the purpose of controlling time, cost, and quality. Ideally, the construction management organization links itself to the owner as an agent and thereby places itself in a fiduciary relationship with the owner. In this relationship, the constriction manager can properly represent the owner to both the design professional and the contractors without concern regarding conflict of interest on his part.
CONSTRUCTION MANAGEMENT
44
that which has the character assigned to it in its own essential nature but acquires such character as a consequence of the way in which it is regarded by a rule or policy of law; hence, inferred, implied, or made out by legal interpretation. The term "constructive" typically is used with other legal terms such as "acceleration," indicating that in the absence of an acceleration clause, it is the actions of party that can determine the validity of the acceleration costs. Another application is in the use of the term "constructive change," indicating that although a change may not have been directed, it is implied by the act or commission of the parties involved.
CONSTRUCTIVE
45
an uninterrupted, unbroken series of activities or events. This theory is sometimes employed in the determination of statute of limitation claims regarding the commencement of the time for the claim. The statute of limitation typically starts to run upon completion of the project. However, if the contractor is required to repair defects in the work and, as a result, renders "_____________" to the work, the contractor may extend the time for commencement of the statute.
CONTINUOUS TREATMENT
46
a promissory agreement between two or more persons that creates, modifies, or destroys a legal relationship. Several essential elements must be present in order to render a ______ valid. These elements include an offer, acceptance, and consideration on the part of both parties, the capacity of both parties of the contract, a state of mind (mutually of assent), and the "meeting of minds."
In the construction industry, especially in public bidding, the bid proposal is considered an offer and the owner's selection of the bid is the acceptance. Consideration is the giving up of something on the part of both parties (the owner gives money while the contractor gives labor, material, etc., in the construction process).
CONTRACT
47
anyone who contracts to provide the labor and services necessary to complete a project. A __________ may be hired by the owner or by another contractor. When the __________ is hired directly by the owner, the contractor is classified as the prime contractor. When a contractor is hired by another contractor, the _____________ is classified as a subcontractor in relation to the project.
CONTRACTOR
48
the obligation which arrises from a contract or agreement. In a typical contract agreement, the parties are required to fulfill the duties enumerated in the contract writing between the two parties, but also from the contract agreed to by other parties. An example of this is the duty owed by the Landscape Architect to the contractor as a result of the requirements called out in the contract between the owner and the contractor.
CONTRACTURAL DUTY (CONTRACTURAL OBLIGATION)
49
the sharing of a loss or payment among several debtors. The act of any one or several of a number of co-debtors in reimbursing one of their number which has paid the whole debt or suffered the whole liability, each to the extent of its proportionate share; the right of one who has discharged a common liability to recover from another, who is also liable, the portion which he or she ought to pay or bear. In many jurisdictions, the damages will be assessed to the parties held liable based on their contribution to the negligence.
CONTRIBUTION
50
a usage or practice of the people which, by common adoption and acquiescence and by long and unvarying habit, has become compulsory and has acquired the force of a law with respect to the place or subject matter to which it related. On the technical side of the construction industry, this term can apply to techniques and methods of construction, such as the finishing of a concrete slab with a trowel. Administratively, it is the custom of the Landscape Architect to monitor the construction phase of the work, unless the writing contains a clause deleting that requirement.
CUSTOM
51
compensation for a loss or injury suffered; compensation which may be recovered in the courts by any person who has suffered loss, detriment, or injury, whether to his or her person, property, or rights, though the unlawful act, omission, or negligence of another.
DAMAGES
52
real, substantial, and just damages, or the amount awarded to a complainant in the compensation for actual and real loss or injury, as opposed to "nominal" or "punitive" damages.
ACTUAL DAMAGES
53
repair or replacement of the loss caused by the wrong or injury and nothing more.
COMPENSATORY DAMAGES
54
such damage, loss, or injury which does not flow directly from the act of the party but only from some of the consequences or results of such act.
CONSEQUENTIAL DAMAGES
55
the economic loss suffered as a result of extended time from that of the original time stipulated in the contract writing. This differs from property damage and personal damage.
DELAY DAMAGES
56
a specific sum of money expressly stipulated by the parties to a bond or contract as the amount of damages to be recovered by either party for a breach of the agreement by the other. In the construction industry, it is an amount established in the contract writing to be withheld by the owner on a daily basis for every day past the stipulated completion date of the contract. A "_______________" clause is to fix the amount to be paid in lieu of performance. "Penalty" clauses, without some kind of balancing bonus, are rendered unenforceable in the courts of law.
LIQUIDATED DAMAGES
57
awarded by the courts in the amount of three times the actual damage. Treble damages usually apply in antitrust actions.
PUNITIVE DAMAGES
58
on omission of that with ought to be done; failure to perform a legal duty.
DEFAULT
59
an allegation of a defendant which , admitting the matters of fact alleged by the bill to be true, shows that they are insufficient for the plaintiff to proceed upon or to oblige the defendant to answer.
DEMURRER
60
a method of organizing a building project in which a single entity undertakes the design and erection of the structure at a set fee negotiated in advance. Unlike the conventional construction contract whereby an owner hires both a Landscape Architect and contractor separately, in the _________ contract, the owner negotiates only one contract with one organization.
DESIGN-BUILD CONTRACT
61
a change made in the progress of a work from the original terms, design, or method agreed upon.
DEVIATION
62
typically provides that in the event that the physical conditions at the site of the work vary materially from those represented or reasonable anticipated and in a manner which increases the time or cost of performance, the contractor is entitled to additional compensation or an extension of time.
"DIFFERING SITE CONDITIONS" CLAUSE - ("CHANGE CONDITIONS" CLAUSE)
63
the disavowed, denial, or renunciation of an interest, right, or property imputed to a person or alleged to be his; also the declaration, or the instrument, by which such a __________ is published.
DISCLAIMER
64
to being into view by uncovering, to lay bare, to reveal, to free from secrecy or ignorance, or to make known; revelation; the impartation of that which is secret; that which is ___________ or revealed.
DISCLOUSURE
65
the ascertainment of that which was previously known, the disclosure or coming to light of what was previously hidden, the acquisition of notice or knowledge of given acts or facts as in regard to the _________ of fraud affecting the running of the statute of limitations, or the granting of a new trial for newly discovered evidence; disclosure of facts, resting in the knowledge of the defendant or of deeds, writings, or other things in his custody or power.
DISCOVERY
66
instruments which record, by means of letters, figures, or marks, matter which may be evidently used; the deeds, agreement, title papers, letters, receipts, and other written instruments used to prove the facts.
DOCUMENT - DOCUMENTATION
67
additional cost incurred by an individual other than property damage or personal injury. In the construction industry, an ____________ loss may be represented by a loss in profits or a loss due to a delay in the contractor's schedule.
ECONOMIC LOSS
68
a person with a particular expertise in a limited area of building a design. An ___________ typically may specialize in structural, mechanical, electrical, or plumbing design. It is the limitation of this speciality, which distinguishes an _________________ from the Landscape Architect, who has general responsibility for the entire project.
ENGINEER
69
just and conformable to the principles of justice and right; existing in equity; available or sustainable only in equity or only upon the rules and principles of equity.
EQUITABLE DOCTRINE
70
court which administers justice according to the system of equity and according to a peculiar course of procedure or practice. Equity denotes the spirit and habit of fairness, justness , and right dealing which should regulate the interaction of men. Its obligation is ethical rather than jural. It is grounded in the precepts of the conscience, not in any sanction of positive law. It is justice that is ascertained by natural reason or ethical insight independent of the formulated body of law.
COURT OF EQUITY
71
an equitable doctrine which holds the promisor bound to a promise if injustice can be avoided only by enforcement of the promise. A typical application of this doctrine in the construction industry is holding a subcontractor to its bid submitted to the prime contractor.
PROMISSORY ESTOPPEL
72
when a remedy for breech is included as a part of the contract, that remedy is considered exclusive of other remedies provided by law. Some courts do not recognize the exclusivity of a contract provision unless it is specifically stipulated that the remedy is exclusive. Courts typically will look at all of the facts and circumstances surrounding the agreement as a means of determining the intention of the parties and will refuse to exclude other remedies unless such a result is required by a consideration of the facts of the particular agreement.
EXCLUSIVITY OF CONRACT PROVISIONS
73
clause in which a party who may suffer a loss agrees not to institute legal action against the party who may cause the loss. The classic example is a patient who, upon entering the hospital, agrees not to institute any legal action against th hospital or any of the doctors in the event he suffers injury or death because of an act of the hospital or the doctors. In the jargon of the construction industry, indemnification clauses and disclaimer clauses are considered exculpatory language.
EXCULPATORY LANGUAGE
74
may be a person of science, one educated in the arts, or a person possessing special or peculiar knowledge acquired from practical experience.
EXPERT WITNESS
75
in contract and sales, a promise created by the apt and explicit statements of the seller or person to be bound. (See WARRANTY)
EXPRESSED WARRANTY
76
a way of organizing a design pro-gram which allows the contractor to begin construction on earlier phases of the project before the plans are completed for the entire project.
Caution must be exercised in the signing of a contract using these fast-track methods because of the lack of information typically expressed in a conventional method of contract. Many changes may result when going from phase to phase, and provisions must be included in the contract to compensate the contractor for additional work.
FAST TRACH METHOD
77
a person holding the position of a trustee or character analogous to that of a trustee in respect to the trust and confidence involved and the scrupulous good faith and candor which are required. In the construction industry, the architect and the owner are in a fiduciary relation-ship in respect to the contractor.
FIDUCIARY
78
an engineer assigned to a project during the construction phase and located at the project on a full-time basis.
FIELD ENGINEER
79
a document issued by the architect directing the contractor to erect some portion of the building in a manner different from that described in the plans and specificat ions. A field order is issued when the modification will not affect the money and/or the time spent on the project. These factors distinguish a field order from a change order. The change may be requested by the architect, owner, or contractor. (Field orders sometimes are known as minor change orders .) (See CHANGE ORDER)
FIELD ORDER
80
a contract provision or the procedure of a legally recognized process which states that the decision rendered in the settlement of a dispute is final. Pursuant to such a provision, the courts will accord finality to that decision absent gross error for arbitrary and capricious action. In the arbitration process, the decision rendered by the arbitrators is final.
FINALITY OF DECISION
81
in a contract between a subcontractor and a prime contractor, the performance of the sub-contractor will be tied to the prime contractor in the same manner as the prime's performance is tied to the owner. Some contracts between contractors and subcontractors require more of the subcontractor than is required of the prime contractor by the owner. In a "flow down" clause, the same requirements are established as a minimum requirement for the subcontractor.
"FLOW-DOWN" CLAUSE
82
an organization not incorporated in the state or jurisdiction in which it is performing work. A contractor must meet the legal requirements of the state in which it is performing work . These requirements may include incorporation and licensing as a construction contractor in that state.
FOREIGN CORPORATION
83
the face of a written instrument. That which is contained on the face of a deed, without any aid from the knowledge of the circumstances under which it is made, is said to be within its four corners . In the construction industry, the contract documents , including the drawings, specifications, general conditions, etc., form the face value of the contract
FOUR-CORNER RULE
84
an intentional perversion of truth for the purpose of inducing another, in reliance upon it, to part with some valuable thing or to surrender a legal right; a false representation of a matter of fact, whether by words, by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he or she shall act upon it to his or her legal injury
FRAUD / FRAUDULENT
85
those portions of the contract documents which define, set forth, or relate to contract terminology, the rights and responsibilities of the contracting parties and of others involved in the work, and similar pro-visions of a general nontechnical nature. Conditions can be either expressed, which are stated in the contract, or implied, which are not set forth in words but arise out of the intentions of the parties to the contract.
GENERAL CONDITIONS
86
the builder of the portion of the building which is considered the general portion or the architectural portion. This terms sometimes is erroneously interchanged with the term "_____________ ."
GENERAL CONTRACTOR
| See PRIME CONTRACTOR
87
a collateral agreement for performance of another undertaking; a promise to answer for payment of debt or performance of an obligation if the liable person fails to make payment or perform the obligation.
GUARANTY
88
this heading is inter-changeably used with the heading "Indemnification Clause ." (See INDEMNIFICATION)
"HOLD-HARMLESS" CLAUSE
89
exemption from performing duties which the law generally requires others to perform.
IMMUNITY
| See CLOAK OF IMMUNITY
90
where the intention is not manifested by an explicit and direct word but is gathered by implication or deduction from the circumstances
IMPLIED
91
an agency relationship created by acts of the parties and deduced from proof of other facts.
IMPLIED AGENCY
| See AGENCY
92
provisions which do not appear in the written embodiment of the agreement, but which exist by implication. These primarily include the implied duties to cooperate and to disclose, the implied warranty of specification suitability, and the implied covenant of good faith and fair dealing. Recovery under these implied clauses may not be subject to the limitations on recovery under the expressed provisions of the contract.
IMPLIED CONTRACTUAL PROVISIONS
93
a promise established by implication or inference from the nature of the transaction or the situation or circumstances of the parties.
IMPLIED WARRANTY
| See WARRANTY
94
a requirement of the contract which is physically impossible to perform with-in the existing state of the art. Three factors must exist to render a requirement impossible:
(1) the impossibility must be inherent in the nature of the act to be performed rather than personal to the contract, (2) the facts which make the performance impossible must not have been foreseeable, and (3) the person seeking to be excused from performance must have been in no way responsible for the impossibility.
IMPOSSIBILITY OF PERFORMANCE
95
the doctrine that recognizes that, in some instances, contract performance may become so costly that its impracticability makes it the equivalent of impossibility .
IMPRACTICABILITY, COMMERCIAL
| See IMPOSSIBILITY OF PERFORMANCE
96
knowledge of a fact which is attributed vicariously to another. Knowledge is said to be imputed to a person when it is ascribed or charged to the person not because he or she is personally cognizant of the fact or responsible for it, but because another person, over whom the first person has control or for whose acts or knowledge he or she is responsible, is cognizant of it or responsible for it. In an agency relationship, the principal has knowledge imputed to him or her when the agent receives or is made cognizant of that knowledge.
IMPUTED KNOWLEDGE
| See AGENCY
97
where the signator ies execute a contract which refers to another instrument in such a manner as to establish that they intended to make the terms and conditions of that other instrument a part of their understanding. The two instruments may be interpreted together as the agreement of the parties.
INCORPORATED PAPERS
98
the process by which one party seeks to protect itself from any claims by a plaintiff who has been injured or who has suffered loss. One method of obtaining indemnification is to obtain a promise from the contractor that it will insure the owner, and in some cases the architect, against any liens or suits by a third party not privy to the contract. The courts generally enforce contractual indemnification provisions; but, they are hesitant to permit a party to use indemnification when that party has played a major role in causing the loss . Indemnification is a contractual obligation by which one person or organization agrees to secure another against loss or damage from specified liability.
INDEMNIFICATION
99
a prohibitive writ issued by a court of equity to a party defendant, forbidding the latter to do some act or to permit its servants or agent to do some act which it is threatening or attempting to commit, or restraining it in the continuance thereof , such as being unjust, inequitable, or injurious to the plaintiff. In the application of the equitable doctrine of promissory estoppel, one can only stop the subcontractor from withdrawi ng its bid. This is an injunctive procedure preventing the subcontractor from performing an act, but it cannot assess damages against the subcontractor .
INSPECTION TEAM-the inspectors assigned to a project for the purpose of carrying out the quality control plan.
INJUNCTION
100
a contract whereby , for a stipulated consideration, one party undertakes to compensate the other for loss on a specified subject by specifying perils. The party agreeing to make the compensation usually is called the insurer or underwriter; the other is the insured or assured ; the agreed consideration is the premium; the written contract is the policy; the events insured against are risks or perils; and the subject, right, or interest to be protected is the insurable interest. Insurance is contract whereby one undertakes to indemnify another against loss, damage, or liability arising from an unknown or contingent event and is applicable only to some contingency or act to occur in the future.
INSURANCE
101
the act of hampering, hindering, disturbing, intervening, interposing, or taking part in the concerns and affairs of others. In the construction industry, when a contractor has work interrupted by the acts of the architect or owner, it may file suit on the grounds of interference. However, before liability will be assessed, most courts require that interference with the contract be intentional and not merely negligent.
INTERFERENCE
102
a solicitation for competitive bids; an invitation to submit offers on behalf of
contractors, which are then subject to acceptance by the procuring agency or owner to form the basis of the contract. The invitation to bid competitively is not an offer on behalf of the procuring agency or owner to contract but is simply a request or solicitation for offers to contract.
INVITATION TO BID
103
belonging to the office of a judge, as in a judicial authority, a court of justice, a jud icial writ, or a judicial determination
JUDIC IAL
104
pertaining or relating to the courts of justice, to the jud icial department of government , or to the administration of justice; that branch of government invested with the judicial power; the system of courts in a country.
JUDICIARY
105
hidden, concealed, dormant; does not appear upon the face of a thing, as in a latent ambiguity.
LATENT
106
bound or obliged in law or equity; responsible or answerable to make satisfaction, compensation, or restitution.
LIABILITY
107
certificate or document which gives permission; a permission by a competent authority to do some act which, without such authorization, would be illegal or would be a trespass or a tort.LICENSE
LICENSE
108
a charge, security, or encumbrance upon property;a claim or charge on property for payment of some debt, obligation, or duty.
LIEN
109
a claim created by law for the purpose of securing priority of payment of the price or value of the work performed and materials furnished in erecting or repairing a building or other structure and, as such, attached to the land as well as to buildings and improvements erected thereon.
MECHANIC'S LIEN
| SEE ATTACHEMENT
110
in the construction industry, a document used to certify that a portion of the total amount due to a subcontractor has been paid and, there-fore, that that portion or amount of money cannot be used as a basis for a lien against the property.
LIEN, PARTIAL WAIVER OF
111
to deny the right expressed in the lien. In the construction industry , it is a certificate issued upon completion of the work , signifying that all monies have been paid and that the right to lien against the property is removed.
LIEN, WAIVER
112
a statute prescribing limitations to the right to bring on action based on certain pre-scribed causes of action; that is, declaring that no suit shall be maintained on such causes of action unless brought within a specified period .after the right has accrued; a certain time allowed by a statute for litigation. The provisions of state constitution are not a grant but are a limitation of legislative power.
LIMITATIONS , STATUTE OF
113
a writ issued from a court of superior jurisdiction and directed to a private or municipal corporation, or any of its offices, or to an executive, administrator, or judicial officer, commanding the performance of a particular act therein specified and belonging to its public, official, or ministerial duty or directing the restoration of the complainant to rights or privileges of which he or she has been illegally deprived; a command from a higher court to a lower court to perform a particular act. In the construction industry, a writ is issued to the contracting officer conducting a bid opening session or the letting of contracts if the officer is not complying with the proper legal procedures. If a public body is withholding the execution of a contract, mandamus may be applied to compel that body to act.
MANDAMUS
| See MANDATE
114
a precept or order issued by superior court upon the decision of an appeal or writ of error which directs action to be taken or disposition to be made of case. In some state jur isdictions, the term "mandate" has been substituted for "mandamus" as the formal title of that writ.
MANDATE
| See MANDAMUS
115
clauses which must appear in the contract writing due to their legal status as a federal, state, or local law. The amount of minority business participation or the licensing of a contractor or subcontractor are clauses which fall into this category in certain jurisdictions.
MANDATORY CLAUSES / MANDATORY PROVISIONS
116
a deviation from that which was specified in the original contract documents . In the bid process, a material variance from that which is required in the bid documents will be the basis for rejection of the bid. The degree of variance in a bid process is determined by whether the bidder's proposal gives it an advantage or benefit not enjoyed by the other bidders. A mere irregularity in form which can be corrected upon the opening of the bid is not considered a material variance
MATERIAL VARIANCE
117
the "meeting of minds" required to make a contract is not based on secret purposes or intentions on the part of one of the parties, which it has stored away and not brought to the attention of the other parties, but must be based on purpose and intention which has been made known or from which all of the circumstances should be known.
MEETING OF MINDS
| See CONTRACT
118
the article sold will be of the general kind described and reasonably fit for the general purpose for which it shall have been sold. Where the article sold is ordinarily used in only one way, its fitness for use in that particular way is impliedly warranted unless there is evidence to the contrary.
MERCHANTABILITY
119
any manifestation by words or other conduct of one person to another that, under the circumstances, amounts to an assertion not in accordance with the facts. A party may be guilty of misrepresentation if it has erred in giving professional opinions or in making representations as to existing facts or conditions which a third party has relied upon in the performance of its work .
MISREPRESENTATION
120
compliance, approval of some-thing done, or a declaration of willingness to do something in compliance with a request; an acting by two parties to perform a duty toward each other.
MUTUALITY OF ASSENT
| See CONTRACT
121
failure to exercise the degree of care which a reasonable and prudent party would exercise under the same circumstances. Negligence is committed when a contractual duty is breached. A good example of negligence is where an architect failed to indicate in the plans the existence of an electric power line which he or she knew to be in the area of construction.
NEGLIGENCE
122
a clause contained in contracts which grants a party to the contract an extension of time but does not reimburse that party for any additional costs suffered during that time.
NO DAMAGE FOR DELAY
123
naught, of no validity or effect. When used in a contract or statute, it often is construed as meaning voidable. A contract is rendered null and void when one of the essential elements that make up a contract is missing. An example of this is that when an organization is not licensed to perform work in a particular state, that organization does not have the capacity to execute contracts in that state. Such a contract can then be rendered null and void because of its deficiency regarding the capacity of one of the parties.
NULL AND VOID
124
nothing; an act or proceeding in a cause which the opposite party may treat as though it had not taken place or which has absolutely no legal force or effect.
NULLITY
125
an act on the part of one party whereby it gives to another the legal power of creating the obligation called contract; a proposal to do a thing; an element of a contract. It must be made by the party which is to make the promise, and it must be made to the party to which the promise is made. It
may be made either by word or by signs, either orally or in writing, and either personally or by a messen ger; but, in whatever way it is made, it is not an offer in law until it comes to the knowledge of the party
to which it is made. An offer must be so definite in its terms, or require such definite terms in acceptance, that the promises and performances to be rendered by each party are reasonably certain.
OFFER
| See CONTRACT
126
a choice; the power or liberty of choosing; some-thing that is or can be chosen. In the construction industry , an option is presented to the building contractor in the form of materials and/or methods which vary from the base requirements, which it may choose in order to meet other requirements of the contract. An example would be to choose a method which would employ more minorities to meet the minority quota. An option has no effect on the cost to the owner.
OPTION
| See ALTERNATE
127
a federal act creating an agency responsible for safety and health in the work place. The agency has the authority to issue citations to violators of the federal regulations imposed by the agency.There have been instances in the construction industry where O.S.H.A. has been used by the courts to establish a standard of care for the participants in the construction process.
O.S.H.A. (OCCUPATIONAL SAFETY AND HEALTH ACT)
128
the party at the instance of which the project is undertaken and the one which will take title to it when it is completed; the party in which is vested the ownership, dominion, or title to property. On a construction project, the owner typically contracts independently with the architect or engineer and with the contractor.
OWNER
129
oral or verbal evidence; that which is given by word of mouth;the ordinary kind of evidence given by witnesses in court. In a particular sense, and with reference to contracts, deeds, wills, and other writings, parol evidence is the same as extraneous evidence or evidence taken from outside
of the contract writing.
PAROL EVIDENCE
130
under this rule, when parties put their agreement in writing, all previous oral agreements merge in the writing and a contract, as written, can-not be modified or changed by parol evidence in the absence of a plea of mistake or fraud in the preparation of the writing. But, this rule does not forbid a resort to parol evidence not inconsistent with the matters stated in the writing. In common layman's terms, parol evidence or extrinsic evidence is not permitted to be used a part of the contract writing once the contract is executed. However, should the writing be ambiguous and in need of clarification, then the courts will permit parol evidence to be received concerning the contract writing. In the construction industry, only the contract is executed, the bid proposal cannot be entered as evidence contrary to the contract writing unless the con-tract writing is ambiguous and the bid proposal is needed for clarification of the ambiguity.
PAROL EVIDENCE RULE
131
determines whether the danger which caused the damage was latent (hidden) and, there-fore, beyond the control of the observer or patent (readily seen upon a reasonable inspection) and, therefore , within the control of the observer. Application of this test to the construction industry is enforced when the building is turned over to the owner. If the danger can be observed at the time of the acceptance of the building by the owner, but the owner does not make the contractor aware of the deficiency , then the owner will be held responsible for ·any future damage. However, if the danger is latent and not observable by the owner, then the contractor will be held responsible for any future damage emanating out of this danger.
PATENT/LATENT TEST
132
a legal instrument which provides a source of payment for labor and materialmen should their employer fail to pay them because of either default or bankruptcy
PAYMENT BOND
| See BOND
133
a legal instrument which assures that if the contractor defaults , the surety company will complete performance or pay damages to the extent of the bond.
PERFORMANCE BOND
| (See BOND)
134
a person or organization which brings an action; the party which complains or sues in a personal action and is so named on the record.
PLAINTIFF
135
an adjudged case or decision of a court of justice considered as furnishing an example or authority for an identical or similar case arising afterward or for a similar question of law. It means that a principle of law actually presented to a court of authority for consideration and determination has, after due consideration, been declared to serve as a rule for future guidance in the same or analogous cases, but matters which merely lurk in the record and are not directly advanced or expressly decided are not precedent.
PRECEDENT
136
the party signing a contract with another party to directly perform the work required by that contract.
PRIME CONTRACTOR
| See CONTRACTOR and SUBCONTRACTOR
137
relationship of a party which has any part or interest in any action, matter, or thing. Privity of contract is that relationship that exists between two or more contracting parties. In a typical construction project, the contractual relationship between the participants is one of privity between the owner and the design professional and the owner and the contractor. However, there is no privity or contract between the design professional and the contractor.
PRIVITY
138
in the 1800's, many cases were settled when the plaintiff was denied access to the bench due to the no privity rule (no contract existed between the plaintiff and the defendant). However, in recent decades the no privity rule has given way to the notion of third-party liability.
PRIVITY - (NO PRIVITY RULE)
| See THIRD-PARTY LIABILITY
139
a system of organizing a construction project from conception to the completion of the project. This system includes management of the preparation of the contract documents , the bid process, and the construction phase. This term sometimes is interchange-ably used with the term "construction management"
PROJECT MANAGEMENT
| See CONSTRUCTION MANAGEMENT
140
a formal declaration made by a party interested or concerned in some act about to be
done, or already per-formed, whereby it expresses its dissent or disapproval or affirms the act against its will. The object of such a declaration generally is to save some right which would be lost to the party if
its implied assent could be made out or to exonerate itself from some responsibility which would attach to it otherwise. In common jargon, a protest is considered the initial act in establishing a claim to retain a party's contractual rights.
PROTEST
141
relating to punishment; having the character .of punishment or penalty; inflicting punishment or a penalty.
PUNITIVE DAMAGES
| See DAMAGES
142
policy in regard to assuring that quality will be achieved on a program or project.
QUALITY ASSURANCE
143
a plan to implement the policies stated in the quality assurance statement of an organization.
QUALITY ASSURANCE PLAN
144
the implementation of the quality assurance plan, usually during the construction phase.
QUALITY CONTROL
145
The group of personnel assigned to implement quality control during the construction phase.
QUALITY CONTROL GROUP
146
an implementation plan for application of the quality assurance policies during the construction phase.
QUALITY CONTROL PLAN
147
a term applied to the action, discretion, etc., of public administrative officers who are required to investigate facts, to draw conclusions from them as a basis for their official action, and to exercise discretion of a judicial nature. The actions of the O.S.H.A. administrators are quasi-judicial in character . When a design professional acts as an arbitrator in resolving disputes between the owner
and the contractor, he or she is considered to be acting in a quasi-judicial role. It is in this role that the design professional is granted immunity.
QUASI-JUDICIAL
| (See IMMUNITY)
148
obtaining a thing by the judgment of a court as the result of an action brought for that purpose; the amount finally collected or the amount of judgment.
RECOVERY
149
receiving satisfaction for any injury sustained.
REDRESS
150
a rule or order prescribed for management or government ; a regulating principle; a precept; rules of order prescribed by a superior or competent authority relating to the actions of those under its control. An example is the body of federal regulations instituted by O.S.H.A. These regulations must be adhered to by those in the work-place , including the construction project site, or citations will be issued for their violation upon detection.
REGULATION
151
a provision of most invitations to bid for both public and private works.
In addition, most jurisdictions grant, by statute or ordinance, that same apparent right to all of its political subdivisions. It is the right of the owner or contracting agency to reject any and all bids, generally for some reason. However, some jurisd ictions grant outright authority to reject all bids without cause or for any cause it might deem satisfactory. In some jurisdictions and with some government agencies, it must be shown that the rejection was not arbitrary and capricious. In other jurisdictions, the motive for rejection of all bids is immaterial. Yet, in other jurisdictions, there is the requirement that rejection of bids be predicated on good faith and be exercised promptly. Note that the above deals with the affirmative
act of rejection of all bids and not with the disqualification of bidders due to material variance in their submission or with the rejection of one bid. In the rejection of a single bid (the lowest responsible and responsive bidder), other factors come into play. In some jurisdictions, the rejected bidder was awarded costs of its bidding process, while in others, though the cost of bid preparation was denied, the contractor was awarded damages to recover reasonable profits, start-up costs, and post bid costs.
REJECT ANY AND ALL BIDS
152
the relinquishment, concession, or giving up of the right to a lien by the party in which it exists or to which it accrues. In the construction industry, it is a document releasing the signer's (contractor and/or subcontractor) right to a mechanics' lien on the project.
RELEASE OF LIEN
153
one who stands in the place of another, usually as executor or administrator but not as an agent; one who represents the interests of another.
REPRESENTATIVE
| See AGENT
154
one who has the capability, in all respects, to fully perform the contract requirements and the integrity and reliability to assure good-faith performance.
RESPONSIBLE BIDDER
155
one who has submitted a bid under a competitive sealed bid which conformed in all respects to the invitation for bids so that all bidders may stand on equal footing with respect to method and timeliness of sub-mission and as to the substance of any resulting contract. One is responsive if one replies to the specific questions set forth. In the text of public works contracts, one must respond clearly and without qualificat ion to all inquiries addressed to the invitation to bid.
RESPONSIVE BIDDER
156
an amount of money established by a fixed percentage agreed to in the contract writing that is with-held by one party of the contract from the other as a means of security and/or assurance of performance. In the construction industry, retainage is withheld by the owner against the prime contractor, and the prime contractor, in a similar manner, withholds from its subs. A typical percent-age in the construction industry is 10 percent of the amount paid on the progress payments until 50 percent of the work is completed. At that time, the owner may discontinue withholding the retainage.
RETAINAGE
157
Typical risk-shifting clauses include indemnification clauses, surety requirements (bid bond, performance bond, and payment bond), "no damage for delay" clauses, etc. Another similar clause is the "condition precedent to payment" clause, which requires the prime contractor to pay his subcontractor only after he has been paid by the owner.
RISK-SHIFTING TECHNIQUES
158
protection; assurance; indemnification; terms usually applied to an obligation, pledge, deposit, etc., given by a party to a contract to the other party.The name some-times also is given to a party which becomes surety or guarantor for another. In the construction industry, bonds are considered security against default by the bidder or contractor during the respective process.
SECURITY
159
a concept adopted by the United States from the courts in England, precluding any legal action against public bodies for either breach of contract or for tort claims.This doctrine is applicable at the federal, state,and local levels of government. However, over the last century, this doctrine has waned, especially in the area of tort claims. In most of the 50 states, sovereign immunity is no longer in effect, especially in the area of tort claims. At the federal level, Congress consented to being sued for breach of contract in 1887 by the Tucker Act , and in the tort field, Congress passed the Federal Tort Claims Act in 1946, permitting lawsuits against the United States for certain types of legal wrongs.
SOVEREIGN IMMUNITY
160
general recognition and conformity to established practice; a type, model, or combination of elements accepted as correct or perfect.
STANDARD
161
that standard which a professional (doctor, lawyer, architect, engineer, etc.) must exercise to the degree of care and expertise which a reasonably competent professional of the same discipline would exercise under the circumstances. The standard of performance is established by the professionals working in the same geographical area.
STANDARD OF PERFORMANCE / STANDARD OF CARE
162
term introduced by the A.I.A. in 1963 to help minimize the responsibility of guaranteeing the cost estimate. Prior to that time,"cost estimate" was used.
STATEMENT OF PROBABLE CONSTRUCTION COSTS
163
an act of a legislature declaring or prohibiting some-thing; a particular law enacted and established by the will of the legislative department of government. These laws must be adhered to by all parties within that jurisdiction .
STATUTE
164
a statute that requires that no suit or action shall be maintained on certain classes of contracts or engagements unless there shall be a note or memorandum in writing and signed by the party to be charged or by its authorized agent. Its object is to close the door to the numerous frauds and perjuries. In essence , this statute declares that unless a contract is put in writing, it may not be substantiated as legally binding in a court of law. However,one should be aware of the fact that oral agreements are legally binding within certain parameters. These parameters are usually established by the Uniform Commercial Code.
STATUTE OF FRAUDS
165
liability without fault. A case is one of strict liability where neither care nor negligence, neither good nor bad faith, and neither knowledge nor ignorance will save the defendant.
STRICT LIABILITY
166
a party which takes over portions of a contract from the principal (prime) contractor or another subcontractor; a party which has entered into a contract, express or implied, for the performance of an act with the party which has already contracted for its performance. Most subcontractor contracts hold the subcontractor to the same terms and conditions which are established in the prime contractor's contract with the other parties. Generally, subcontractors specialize in specific building trade, and, as specialists, most subcontractors are licensed by the state in which they operate. The subcontractor's relationship to the prime contractor is that of an independent contractor.
SUBCONTRACTOR
167
the state of completion whereby the building, or a part thereof, is rendered complete to the degree that the owner can use the building, or a part thereof, for its intended purpose
SUBSTANTIAL COMPLETION
168
where a party has complied with the requirements of a writing to the degree that it is essentially the same as that which is.required. Substantial conformity might be considered the opposite of material variance.
SUBSTANTIAL CONFORMITY
| See MATERIAL VARIANCE
169
Exists where there has been no willful departure from the terms of the contract and no omission in essential points; where the contract has been honestly and faithfully performed in its material and substantial particulars, and where the only variance from the strict and literal performance consists of technical or unimportant omissions or defects. In the construction industry , progress payments are made to the contractor based on the substantial performance of the
work for that period of time. Usually the issue of substantiality of performance arises when the project is essentially completed, when the owner occupies the building, and when minor deviations from contract requirements become evident. The contractor demands the unpaid balance of the contract price based on substantial performance, and the owner defends by asserting that the balance need not be paid until every deviation is eliminated.
SUBSTANTIAL PERFORMANCE
170
when an organization has standard general conditions for inclusion in specifications, supplemental conditions are utilized to modify the general conditions to make them project specific.
SUPPLEMENTAL CONDITIONS
171
a party which undertakes to pay money in the event that its principal fails.
SURETY
| See BOND
172
clause inserted in construction contracts only and which deals with the right of the owner to suspend the work for a period of time as it may determine to be appropriate for the convenience of the owner. When such a clause is inserted into the contract and is then
exercised, an adjustment shall be made, an increase in the cost of performance of the contract (excluding profit) necessarily shall be caused by such unreasonable suspension, delay, or interruption, and the contract shall be modified in writing accordingly . However, no adjustment shall be made under this clause for any suspension by the owner if performance would have been suspended by reason of any other cause, including fault or negligence of the con-tractor, or if an equitable adjustment is provided for or excluded under any other provision of the contract.
"SUSPENSION OF WORK" CLAUSE
173
a term used to mean "mutual help" in certain federal agencies' contracts. The Department of Health and Urban Development (HUD) requires that the tenants of housing built by federal assistance programs, such as housing for the Indians on Indian reservations, con-tribute to the construction of the unit by giving of their manual labor. This labor is known as mutual help or sweat equity.
SWEAT EQUITY
174
to put an end to; to make to cease; to end.
TERMINATION
175
construction contracts generally contain specific provisions itemizing events of default. However, even if not specifically itemized, delay in performance resulting in a failure to complete the contract in a timely fashion is universally recognized as a breach of contract. Whether the breach for untimely performance justifies an owner in terminating the contract may depend upon
whether "time is of the essence" for performance of the contract. In federal construction contracts, time is of the essence , and if the contractor fails to perform by the date specified, the government may terminate the contract for default. In private contracts, where time is of the essence, the owner has a common-law right to terminate if the contractor fails to perform within the time specified, unless the time for performance has been waived or extended by the acts of the party.
TERMINATION FOR DEFAULT
176
A party which is not privy to a contract but which may be bound or benefited through a written or implied legal relationship.
THIRD PARTY
177
in order for a party not privy to a contract to maintain an action thereon as a third-party beneficiary, it must appear that the contract was made and intended for its benefit. The benefit must be one that is not merely incidental but must be immediate in such a sense as to indicate the assumption of a duty to make reparation if the benefit is lost.
THIRD-PARTY BENEFICIARY
178
a condition whereby a party to a contract may be held liable to a third party related to the contract by its negligent or fraudulent activity in performance of contract. A third party may recover damages where the circumstances are such that the transaction, within the contract requirements , was intended to affect the plaintiff (third party) , and injury to the plaintiff was foreseeable.
THIRD-PARTY LIABILITY
179
a private or civil wrong or injury; a wrong independent of contract.
TORT
180
a wrongdoer; one who commits or is guilty of a tort.
TORTFEASOR
181
damages given by statute in certain cases, consisting of the single damages found by the jury tripled in amount. The usual practice is for the jury to find the amount of the damages and then for the court to order that amount to be trebled.
TREBLE DAMAGES
182
a method of organizing a building project in which a contractor and a designer agree to provide a finished building at an agreed-upon price. Upon completion of the project, all the owner has to do is "turn the key" in the door. Most turnkey projects are built for the Department of Housing and Urban Development (HUD).
TURNKEY CONTRACT
183
a state or quality of being unknown or vague ; such vagueness, obscurity, or confusion in any writ-ten instrument, e.g., a contract, as to render it unintelligible to those who are called upon to execute or interpret it so that no definite meaning can be extracted from it.
UNCERTAINTY
184
that which is contrary to the constitution. The term can be used in two different senses. The first is that legislation conflicts with some recognized general principle or conflicts with a generally accepted policy. The second is that the legislation conflicts with some provision of the written constitution which it is beyond the power of the legislature to change.
UNCONSTITUTIONAL
185
in a multiple prime construction contract, solicitation for bids is presented to the bidders in several separate prime contract packages. In a unified bid procedure, the bidders are permitted to bid on either one or as many of the bid packages as are presented.
UNIFIED BID
186
a body of laws which governs the sale of goods in almost every state of the United States. Application of the Uniform Commercial Code in the construction industry is rare except in the area of shipping, handling, and purchasing of materials for the project.
UNIFORM COMMERCIAL CODE
187
doctrine stating that persons shall not be allowed to profit or to enrich themselves inequitably at another's expense. A typical example of this doctrine is when an owner withholds payment to a contractor for work already performed, claiming that work is not acceptable . The value of the performed work far exceeds that portion which the owner considers unacceptable
UNJUST ENRICHMENT
188
a local ordinance which governs the uses of land and the overall characteristics of the structures that may be erected; t.he division of a city by legislative regulation into districts and the prescription and application in each district of regulations having to do with structural and architectural designs of buildings and of regulations pre-scribing uses for buildings within designated districts.
ZONING
189
the intentional or voluntary relinquishment of a known right. ____ is essentially unilateral, resulting as a legal consequence from some act or conduct of parties against which it operates, and no act of the party in whose favor it is made is necessary to complete it. In the construction industry, an owner may ______ his or her right to a signed change order for work incorporated into the project when the following conditions exist: the owner is aware of the change but does not object; the item is of magnitude that the change could not be made without the owner's knowledge; the changes are necessary but were not foreseen by the design professional; and some subsequent oral agreement (the Landscape Architect's orally approved substitution and/or change with which the owner agreed) _______ the requirement of a signature.
WAIVER
190
a promise that a proposition of fact is true
WARRANTY
191
the owner's implied warranty, when providing plans and specifications, that the plans and specifications are possible to perform, are adequate for their intended purpose, and are free from defect. Moreover, this warranty is not overcome by the usual exculpatory clauses requiring bidders to visit the site, check the plans, or generally inform themselves of the requirements of the work. the implied warranty of specification suitability has been recognized in every American jurisdiction and applied with equal force to public and private contracts. As with any contractual obligation, the warranty can be overcome by explicit contractual provisions that impose absolute liability for the performance on the contract.
WARRANTY OF SPECIFICATIONS
