Exam I Flashcards
Juror
Member of Jury
How do architects and engineers get involved in the court system?
Expert witnesses, contracts, local rules & regulations
Civil Law
Regulates private rights of individuals
Criminal Law
Regulates individuals’ conduct to protect public
How does civil law affect construction?
Governs contract language
Aids dispute resolution
protects workers, consumers, and homeowners from unethical practices
How does criminal law affect construction?
Curtails theft/violence
ensures safety
Main sources of law:
Constitutions
Laws by Legislature
Court Decisions by Judiciary
What source of law would provide licensing board regulations and zoning?
Laws by legislature
What source of law is a general framework?
Constitution
What source of law would provide common laws relating to contracts, torts, property, and crime?
Court decisions by Judiciary
Federal laws…
Regulate currency, taxes, patents, bankruptcy, construction worksite safety
State laws…
Regulate criminal laws
Determine which contracts to enforce
Regulation of who can be a professional (A/E/B)
US Constitution regulates power among:
Branches of government (legislative, executive, and judicial)
Federal and state government
All governments and their citizens
If state and federal laws conflict, which trumps?
Federal
What is a statue?
Law passed by legislature and signed and executed by executive branch
What are some things statues regulate in construction?
Who may build a building
What may be built
Where it may be built
Content of contracts
Litigation process
Housing and building codes control:
Quality of construction
Licensing and registration laws determine:
Who designs and builds
An example of a statue that has been adopted by 50 states is:
Uniform commercial code
Uniform Commercial Code:
Set of laws governing all commercial transactions in US
Article 2 in the UCC regulates:
Sale of materials and supplies in a construction project
What is judicial review?
Power of courts to review actions of government entities
3 powers of judicial review:
Review of actions by executive and legislative branches
Grant remedies for law violations
Make decisions that establish precedent
What is common law?
Judge-made law
3 main levels of federal court system:
Disctrict courts
Circuit courts of appeals
US supreme court
3 main levels of state court system:
Trial courts
Appeallate courts
Supreme court
What is litigation?
Process of settling a dispute in a court
In order to resolve a dispute in the court system, litigant must file a claim called:
Lawsuit
The jury’s decision on a lawsuit is called:
Verdict
The court’s ruling on a lawsuit is called:
Judgement
What are the two options a litigant can ask for to have their lawsuit resolved?
A judge or 12-person jury
This court is a 3-judge panel and issues an opinion
Appellate court
Who is appellant?
Party disagreeing with the judgement
Who is respondent?
Party wanting to uphold the trial court decision against the appellant
What were some difficulties with litigation during covid?
Challenges of virtual representation of clients
Delay of jury trials
What are ethics?
Morals and customs of conduct
When does a profession need to be recognized by the state?
When public’s health, safety, and welfare is involved
Are registered engineers charged with upholding laws and rules? If so which ones?
Yes, ones that include professional conduct and ethics
What are some ethical situations engineers and people in construction face?
Professional responsibility
Moral upbringing
Sound judgement vs financial or political pressure
Safeguard reputation
Avoid conflicts of interest
What is moral authority?
Ability to think independently and rationally about ethics
Briefly describe Agnew case study
He was a civil engineer and lawyer, who became county executive. He gave an edge to firms who paid him for receiving contracts. Parties who paid him served prison terms, he served probation
What is a contract?
Binding agreement, usually between 2 parties
What is contract of adhesion?
A contract in which one of the parties has disproportionate bargaining power
What is an example of contract of adhesion?
Electricity. You may not like the bill but there’s no other options
List some of the parties engineers make contracts with:
Clients
Consultants
Employees
Landlords
Seller of Goods
List some of the parties contractors make contracts with:
Clients
Subcontractors
Suppliers
Employers and employees
Engineering consultants
Insurance and bonding companies
What are some things that make a contract legally enforceable?
Offer & Acceptance
Consideration
Certainty
Legality
Legal Capacity
Free Consent
What is promisor?
Party making the promise
What is promise?
Party to whom the promise is made
What is offeror?
Party making the offer
What is offeree?
Party to whom offer is made
What is offer in contract formation law?
An offer with terms that when accepted by offeree, creates a legally enforceable contract
What is counteroffer?
Offer terminating original offer
What is mutual assent?
Meeting of the minds; each party agrees on the same thing
What is contract consideration?
Something of legal value is given in exchange for a promise
What is bargaining?
Exchange of promises of obligations
Do courts examine the fairness of a bargain?
No
What are some common forms of consideration?
Tangible payment
Performance of an act
What are some things that make a contract unenforceable even if there’s an offer, acceptance, and consideration?
Fraud
Mistake
Unconscionability
Economic Duress
What is unconscionability?
So unfair or one-sided that it shocks the conscience of judge
What is economic duress?
1 party exerts pressure beyond permissible bargaining, other party agrees b/c there’s no other choice
What is a unilateral contract?
A one-to-all contract
Ex: X promises reward to anyone who will find his lost wallet
What is a bilateral or unilateral contract?
Promise by one party exchanged for promise by another party
Ex: sales of goods contract
3 most common business association types in construction industry:
Sole Proprietorship
Partnership
Corporation
What is sole proprietorship?
1 person business
What are some business association types other than the most common 3?
Limited liability
Joint ventures
Unincorporated Associations
What is a partnership?
2+ Persons are co-owners of business
What are some qualities of sole proprietorship?
Informal creation and operation
Liable personally for all debt
Taxes on sole proprietor’s income
Discontinues upon death
What governs the rights and duties of partners in a partnership?
Uniform partnership act
(True/False) General partnership allows creditors to go after individual assets of any of the partners
True
(True/False) Limited partners added to raise capital but do not participate in management and are personally liable for debts
False, not liable
What could end a partnership?
Death of a partner
Bankruptcy
Withdrawal from the partnership
Court order
Corporations are created by:
Contracts
Corporations are legal entities, which means they can:
Take, hold, or convey property
Sue or be sued
Managed by a board of directors
Profits and losses within the name of corp.
(True/False) Intermingling personal money with corporation’s money can pierce the corporate veil (someone can get through to the shareholder)
True
What two types of taxes do corporations pay?
Income tax on money earned
Shareholders pay income tax on dividends
Are non-profit corporations tax exempt?
Yes
What is a limited liability company (LLC)?
Hybrid of corps and partnerships;
has pass-through income tax benefits of partnership,
and has limited liability protections of a corp
What is limited liability partnership (LLP)?
liability only of the LLP, not the joint and several liability of partners in a partnership
What is a joint venture?
2+ entities who associate, usually for 1 specific project
What is the most common way joint ventures are structured?
One firm assumes management role, rest provide financial support
How are profits and losses shared in a joint venture?
Based upon percentage of partnership
What is the purpose of agency law?
Ensures third parties will be able to contract through an agent, and it will be enforceable
What / Who is a fiduciary?
A person or an organization making financial decisions on behalf of another, obligated to act in their best interest
What is a fiduciary relationship?
One party places trust and confidence in another who is to act for the benefit of the other
Actual authority
Principal to make the authority of agent clear to third parties
Apparent authority
Principal manifests to third parties that agent has authority (Business cards, forms, stationary, etc.)
How can an authority be terminated?
specific period of time
consent to terminate b/w principal and agent
What is a dispute?
Disagreement between two parties
A breach of contract claim includes:
Formation of contract
Breach of contract
Causation
Damages
What is a breach of contract?
Failure to perform in the time or manner required
What needs to be proven for a breach of contract case to not be dropped?
Causation
Can be proven through daily reports, logs, etc.
What are the possible judgements that a court could order if a party prevailed in a lawsuit?
Monetary awards
Specific performance
Injunction
Mechanic’s Lien
What is a mechanic’s lien?
Guarantee of payment to builders, contractors, and construction firms
What could a party pay in damages?
Actual costs
Overhead
Profit
Attorney and expert fees
Tort Law
Civil wrong against another party, outside of contract
What are some example situations where tort law would be applicable?
Injured workman on site
Damage to adjacent property
Automobile accident
What are the three main functions of tort law?
Compensate injured victims
Deter unsafe behavior
Punish wrongful acts
