1.1 Basic contract law and legislation Flashcards
What are the main types of legal systems in the world? (ISSUED)
The main two legal systems around the world are civil law, and common law.
The main difference between common law and civil law is that the is that in common law countries, case law is of primary importance. Whereas in civil law systems, codified statutes are considered paramount.
From these two main systems there is also religious law, and mixed legal systems.
Explain the concepts of common law (ISSUED)
Common law is the legal system used in Great Britain and the United States. According to common law, judges must consider the decisions of earlier courts through precedents of similar cases when making their own decisions.
In many countries the justice system combines elements of civil law (private cases), which was handed down from Roman law, and common law, which developed in England. In a combination system, private cases are judged in civil courts; however, cases involving crimes against society (criminal law) are tried in criminal courts, where decisions are based on precedents.
In what countries is common law used? (ISSUED)
Common law is used in various countries across the world including England, Wales, Ireland, USA, Australia. It is important to note that common law which is used in England and wales is not necessarily the most used legal system used. Instead there is a variety of mixed legal systems, civil systems and religious based systems.
Explain the concepts of civil law (ISSUED)
The civil law system is a codified system of law. It takes its origins from Roman rule. Features of a civil law system include:
There is generally a written constitution based on specific codes (e.g., civil code, codes covering corporate law, administrative law, tax law and
constitutional law) enshrining fundamental rights and duties.
Only legislative enactments are considered binding for all. There is little scope for judge-made law in civil, criminal and commercial courts, although in practice judges tend to follow previous judicial decisions.
In some civil law systems, e.g., Germany, writings of legal scholars have a significant influence on the courts;
Less freedom of contract - many provisions are implied into a contract by law, and parties cannot contract out specific provisions.
In what countries is civil law used?(ISSUED)
Civil law is used in:
Scotland has an uncodified system of civil law
Continental Europe, where most jurisdictions have civil codes.
In Central and South America, almost all countries have civil codes.
In Asia, many countries have received civil law and have civil codes, such as Indonesia, Japan, Kyrgyzstan, and Lebanon.
Countries of Africa that once were colonized by continental European nations have kept many aspects of the civil law traditions.
Give an example in construction of how applying the rules of common law compared to civil law may produce a different outcome (for example LADs).
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What is the basis of a contract in construction under English Law? (ISSUED)
A contract is an agreement giving rise to obligations which are enforceable by law.
A valid contract requires the presence of three key elements:
an agreement;
an intention to create legal relations: this is an intention to form a legally binding relationship,
consideration. Such as payment
In common law what 5 components constitute a ‘contract’? (ISSUED)
Essential Elements of Contracts
To make a legally binding contract, 5 elements must be satisfied: offer, acceptance, consideration, intention and capacity:
Offer: One party makes an offer
Acceptance: The other party accepts the offer
Consideration: Each party provides consideration to the other. Consideration can be: a promise to pay money a promise to do something a promise not to do something, or promise to provide something else of value. That doesn’t mean it needs to be valuable. £1.00 could be a valuable consideration. And it doesn’t have to be money.
Intention to be legally bound: Both parties have an intention to be legally bound by the agreement (which is proposed by the offer, and then accepted)
The parties have contractual capacity: The parties are legal entities recognised by law, such as companies, limited liability partnerships and individuals of at least 18 years of age.
Once those elements exist, you have legally binding contract.
Under English law is there such a thing as a verbal offer? What Act would you refer to? (ISSUED)
Yes verbal contacts are legally binding often used for self employed people or so called handshake deals , However, where you may encounter difficulty is proving the terms of the contract, for which you’ll need to provide evidence to the court.
The Construction Act 1996 applies only to construction contracts in writing. However, consultations with stakeholders have revealed the desire by some parties for the Act to be extended to cover oral contracts. If the Construction Contracts Bill is not amended and becomes law, section 107 of the Construction Act 1996 will be repealed, opening the gates for oral contracts to be dealt with under the provisions of the new Act.
Could an e-mail constitute a contract? (ISSUED)
In short yes an email can form a legally binding contract.
For contracts to be legally binding, five essential elements must be present. There must be:
offer Acceptance: Consideration Intention The parties have contractual capacity
In simple terms, two people must reach an agreement between them. So, one email on its own can’t be a legally binding contract. However, there’s no reason why an exchange of emails can’t contain all of these elements. Therefore, an exchange of emails can form a legally binding contract
Under a construction contract who makes the offer? (ISSUED)
The contractor makes the offer to the client to complete the construction works for a certain price.
Under a construction contract how is the offer accepted? (ISSUED)
The Contractors offer is officially accepted by signing the appropriate contract forms. Although a letter of intent can be issued to show the intention to enter legal arrangements.
What do we mean by illegality? (ISSUED)
Illegality in English law is a potential ground for a court to refuse to enforce a contract or obligation. This might be paying for goods with stolen money. This might entitle the other party to The law of unjust enrichment deals with circumstances in which one person is required to make restitution of a benefit acquired at the expense of another in circumstances which are unjust.
What do we mean by consideration? (ISSUED)
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What do we mean by capacity?(ISSUED)
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What do we mean by intention?(ISSUED)
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What is Tort?
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What is a letter of intent?
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Is a letter of intent a contract or a counter offer?
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Who should the letter of intent be produced by and why?
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Explain how a letter of intent should be set out.
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What would be included in a letter of intent?
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Can you explain what happens when you exceed the limit stated in a letter of intent?
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What are the risks associated with a letter of intent?
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How do you go about switching from a letter of intent to a full contract?
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What are the risks to the employer with using Letters of intents?
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What are the risks to the contractor with using Letters of intents?
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Can you tell me about some recent legislation?
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Can you tell me about some recent case law?
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Can you discuss a recent case that you have read about? What will you do differently now as a result?
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What are the main types of legislation which governs construction law? Why is it important to know this legislation?
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Can you explain what the Construction Acts are?
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Give examples of where the Local Democracy Economic Development and Construction Act has revised the principles as set out in the Housing Grants Construction and Regeneration Act.
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How does a JCT contract comply with the Construction Act?
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What is there in place to protect sub contractors in getting paid?
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Explain the meaning of “Pay when Paid”?
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Does the Construction Act apply to all projects?
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What is the default payment mechanism in the Construction Act?
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What is the Scheme for Construction Contracts (England and Wales) Regulations?
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What do you know about the Unfair Contract Terms Act?
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What do you know about the Latent Damage Act?
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What do you know about the Limitation Act?
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Can you tell me about the insolvency act?
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Can you advise how the insolvency act impacts on contracts?
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Can you tell me about the third party rights act?
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Can you advise how the third party rights act impacts on contracts?
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Are you aware of the CDM regs and explain a little bit about them?
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Tell me about the CDM 2015 regulations? What are the changes? What are the clients and other members obligations?
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Can you tell me about any changes in the CDM regulations?
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What legislation do you need to comply with for health and safety in the workplace?
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What does an employer need to do to comply with this legislation?
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Who is a designer under CDM?
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Are you a designer under CDM?
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How does preparing a BoQ make a QS a designer under CDM?
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What is the principal contractor role under the CDM regs?
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What is a pre-action protocol?
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Can you explain the philosophy behind the Society of Construction Law Delay & Disruption protocol?
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