Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Construction Law Midterm > Performing the Job > Flashcards

Performing the Job Flashcards

You may prefer our related Brainscape-certified flashcards:
Civil Procedure 1L flashcards MBE flashcards MPRE flashcards
1
Q

Obligations of the Contractor to the Owner

A
  • Duty to complete the work

- Implied term that they will perform work diligently and in good and workmanlike manner

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Duty to complete the work

A

Contractor has the duty to complete the work in accordance with the contract, its drawings, plans, and other documents

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Performance both obligation and right meaning

A

Owner not able to perform any part of the contractor’s scope of work without breaching the contract

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Party of duty to complete work is implied duty that

A

that the owner will not do anything to prevent or hinder the contractor in its performance of the work

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Owner/ design pro does not owe a duty of care to….

A

advise contractor on how to perform the work

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

When will obligation to complete extend?

A

If generally contemplated in the anticipated scope

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Implied terms for contractors under duty to complete

A
  • That work will be performed in good workmanlike manner (implies fitness in some cases)
  • Work will comply with building regulations
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Performance is ____ to payment

A

Condition precedent

whether full performance depends on the contract

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Partial performance will not entitle partial payment when

A

owner does not benefit from anything other than full performance

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Breaches that absolve the owner of obligation to pay

A

Those that go to the root of the contract

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Substantial Performance

A

achieved where there is remaining work but the work remaining does not go to the root of the contract (case by case basis)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

What happens at substantial performance?

A

Owner required to pay contract price (unless contract says due on total completion)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Entitlement to be paid for sub performance different when

A

Residential as well as if there is unique design or aesthetic preferences

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Time for completion

A

Duty to complete means complete at a specified time (usually completion time in contract expressed in milestones or date)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Time at large contracts

A

Contract without timeframe

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Time at large times calculated

A

Reasonable amount of time (fact dependant inquiry)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Contracts that do stipulate can be time at large

A

If owner interferes

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Cases where contractor’s actions caused concurrent delay

A
  • Ex: owner preventing access to site but contractor falling behind as well
  • Contract may still be considered time at large
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

3 kinds of delay

A

1) Excusable delay
2) Compensable delay
3) Non-compensable delay

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Excusable delay

A
  • delays for which neither party is responsible (ex: force major)
  • may justify schedule extensions but not compensation
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Compensable delay

A
  • delay caused by an act or omission of the owner (ex: impeding access)
  • Compensation to contractor and schedule extensions
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Non-compensable delay

A
  • delay caused by contractor’s own failure to perform its duties
  • Contractor may be liable for damages
  • Contractor may have to do additional work without pay
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

Owner obligation

A
  • Not to impede/ provide sufficient access to site and materials
  • Payment
  • Not to interfere with contractors work
  • Get permits, easements, and rights of servitude
  • In D-B-B appropriate, timely, and sufficiently appropriate drawings
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

Owner obligation not to impede creates what implied terms?

A
  • implied term that site will be handed over to the contractor within a reasonable time after signing the contract
  • implied term that specified documents will be supplied at an appropriate time
  • where owner responsible for material implied obligation to supply those materials in the stipulated form and at an appropriate time to allow contractor to meet schedule
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

What if owner breaches obligation not to impede

A

Required to pay costs to contractor resulting from breach

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

Increased duty to supply materials when schedule is tight

A

failure to supply items that would have just been an inconvenience tight schedule can up this from a nuisance to a significant breach

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

Compensable delay damages

A

Contractor can claim for:

  • Some recovery for offsite overhead costs
  • Loss of profit earning capacity
  • Specific on sight overhead costs for legitimate period of extension
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

Compensable delay damages not awarded

A

Where caused by contractors failure to mitigate

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

Must determine causation for compensable delay damages how

A

causation established where the defendants acts materially contributed to the delay

30
Q

Onus on contractor to prove what in compensable delay

A

1) Delay was caused by the owner
2) That delay resulted in the loss they are claiming
3) That they were not able to mitigate

31
Q

Onus on owner to prove what in compensable delay

A

show contractor caused or contributed to the delay

32
Q

Bar on claims

A
  • Owners have entitlement in the contract to stipulate a claims bar on delay claims
  • Must be clear and unambiguous
33
Q

Liquidated damage clauses

A

Provision saying contractor must pay the owner a fixed amount for each day that the work remains incomplete after a stated time

34
Q

Liquidate damages only enforceable if…

A

genuine pre-estimate of the innocent party’s damages and are not merely a financial penalty

35
Q

Penalty if at the time of contract formation

A
  • Extravagant/unconscionable
  • Breach consists of amount of damages is greater than money that ought to be paid
  • Contracts with a single lump sum for liquidated damages that can apply in more than one scenario, some of which are worse than the other, it will be a penalty
36
Q

If actual damage exceeds penalty damage

A

The damage awarded is the penalty amount

37
Q

NB law reform act on penalty enforcement

A

Penalties enforceable provided they are reasonable in light of all circumstances

38
Q

Partial performance does not (owners)

A

absolve owners from paying anything (unjust enrichment)

39
Q

Negligent/deficient work effect on payment

A

Negligent/deficient work does not absolve owner for paying, pay the price minus cost of repairing

40
Q

Duty where owner knows the design professional has failed

A

owes contractor a duty to ensure all design work done properly

41
Q

Contractor responsible for (paperwork)

A

permits, licenses or certificates they need to carry out the work

42
Q

Extra work

A

If there is work not contemplated in initial contracted scope but that is necessary for the completion the contract, usually obliges the contractor to perform the work with an appropriate adjustment to price and schedule

43
Q

Contractor can refuse extra work without being in breach if

A

work is not necessary or reasonably inferable from the contract and the scope of work in that contract

44
Q

Scope deductions

A
  • Where contract entitles owner to deduct part of the work

- Cannot delete a major part or delete to have someone else do the work

45
Q

Contractor deviates from scope

A

If contractor supplies or uses material that is of better quality than necessary or does more work because of failure to understand project, they cannot claim additional costs

46
Q

Contractor can claim extra to be compensated if failure by owner

A
  • Caused contractor to do more work than necessary by improperly saying what was needed
  • Owner failed to do work so contractor had to
  • Owner actively misleads about extent of work
  • Owner makes extra changes to schedule
47
Q

Contractor not entitled to extra compensation if

A
  • Deviates from clear contractual specifications without authorization
  • If failure if due to contractors work
  • Remedial work to correct defect by contractor
48
Q

Unit price extras

A

Only if contract doesn’t describe a certain class of work

49
Q

Authorization of extra work requirement

A

owner needs prior notice and to give authorization to be liable

50
Q

Two ways authorization provided

A

1) Express or implied

2) In writing

51
Q

Work done under protest

A

When owner rejects claim but have duty to keep working can do this so you aren’t saying extras without pay okay

52
Q

If no work under protest provision two options

A

1) Do the work and waive any right to additional compensation
2) Refuse the work and risk being in breach of contract

*dispute res provisions can cure this

53
Q

Contractor liable to do what in design bid build

A

Only liable to build in accordance with design (unless warranty of fitness PR human habitation)

54
Q

Warranty of fitness or human habitation does not

A

Carry on to subsequent purchasers

55
Q

If specified materials

A

Not liable if materials not suitable

56
Q

If contractor guarantees result on suitability of specifications

A

Bound to achieve result even if specifications are defective

57
Q

Damages for defect

A
  • Cost of making good defects

- Unless cost unreasonable high compared to value of fixing

58
Q

Defect

A

• Defect occurs where work or materials do not conform to the specifications of the contract

59
Q

Contract Legally Frustrated where

A

through no fault of anyone a material part of the contract is incapable of being performed because carrying forward would result in something drastically different

60
Q

Examples of legal frustration not caused by delay

A
  • Legislative changes that alter a fundamental element

- In abnormal/ extraordinary circumstances the failure to get the permit

61
Q

Termination

A
  • A party electing to end the contract
  • Done by either party
  • Contract likely has process for termination
62
Q

Typical process for termination

A

1) Fails to comply with contractual requirements to a substantial degree
2) Fails to correct breach after getting notice in writing, AND
3) Consultant gives written statement to both that termination is justified

63
Q

Remedies for termination

A

Party terminating can seek damages for loss of breach and loss of bargain

64
Q

Bombardier Transportation Canada v Metro Lake

A

if contract specifies a process you are stuck with it. Default is not enough to terminate have to go through process. Need to give contractor ability to remedy default. If breach not cured party may be allowed to terminate.

65
Q

Repudiation

A

Owner can terminate where there has been a substantial breach by the contractor where the defects are so bad they deny owner the very substance of the thing contracted for

66
Q

condition vs warranty

A
  • Condition: term so important that failure entitles termination
  • Warranty: much less important

*look at intention of the parties to determine which

67
Q

Innominate terms

A

terms that are neither condition or warranty but depending on consequences may operate as condition

68
Q

For repudiation the clause needs to be

A

A condition or innominate term acting as one

69
Q

To get damages in repudiation

A

repudiation needs to have been communicated clearly to the other party. Without it cannot treat contracts as at an end

70
Q

Recession

A
  • Comes from fraud or misrepresentation

- Puts party into position they were in before entering

Construction Law Midterm (9 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions