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Construction Docs & Services > Shiff Harden Lectures 1- > Flashcards

Shiff Harden Lectures 1- Flashcards

1
Q

legal remedy or claim

A

-request for a ruling to do something you want done, usually money

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2
Q
  • elements to a claim to prove entitlement; why you should win
A
  • Existence of a duty: singing of a contract
  • Breach of that duty: failed to make a payment
  • Causation: no money means no assets
  • Damages: quanitfy how you were hurt
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3
Q

purposes of licensing architects

A
  • To protect the public from incompetent design
  • To regulate competition
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4
Q

what is moonlighting?

A
  • practicing architecture without license
  • people get away with it because regulating bodies are underfunded
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5
Q

how does one typically get caught for moonlighting?

A
  • other architect turns you in, pissed because he/she thinks you stole competition away
  • moonlighting client turns you in
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6
Q

Possible Sanctions for License Violation

A
  • Fines or penalties
  • Denial of license upon subsequent application
  • Inability to sue for fees
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7
Q

Types of Licensing Statutes

A
  • “Holding Out” statutes: regulates how you describe yourself; regulates how you use the title, architect
  • “Practice” statutes: law that forbids you to practice architecture without license
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8
Q

how can unlicesned architects practive architecture?

A
  • working/ being supervisedunder a properly licensed architect
  • reciprocity rule: some states recognize licenses from other states
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9
Q

Effects of an Agency Relationship

A
  • The agent may bind the principal to a contract
  • Knowledge of the agent is attributed to the principal
  • The agent’s acts (and omissions) are attributable to the principal
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10
Q

ciritical distinction between sole proprietorship or partnership and corporations

A

no personal liability

– shareholders, officers, directors & employees are not liable for corporate acts

– complex, restrictive tax and accounting treatments (double taxation of dividends)

– piercing the corporate veil

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11
Q

Limited Liability Companies (LLC)

A

A hybrid between a corporation and partnership

– a separate legal entity, like a corporation

– tax and accounting treatment of a partnership

– liability protections of a corporation

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12
Q

Mediation

A
  • process by which a neutral third party facilitates and assists the disputing parties to negotiate a settlement using preset rules established by the American Arbitration Association (AAA)
  • if an agreements cannot be reached, the AIA B141 agreements requires that the dispute advance to arbitration
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13
Q

Arbitration

A
  • a formal legally, binding process for resolving diputes without litigation in a court of law
  • one or more arbiters with experience in the construction industry hear the disputing party’s argments and render a decision, which is binding
  • process is conducted according to rules and guidleines established by the AIA
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14
Q

Actions for “Reformation” of Contracts

A
  • When the written terms of the contract do not accurately reflect the actual

agreement reached

  • Requires a lawsuit: the only time that a court may rewrite the contract
  • The party seeking reformation must have a good reason

* Mutual mistake of fact

* Fraud

* Unilateral mistake of fact, coupled with the other party’s awareness of the mistake

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15
Q

Expectation damages

A
  • making innocent party whole as if contract performed
  • most common damages for breech of contract

Lecture 5 (~57:00)

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16
Q

Reliance Damages

A
  • used when expectation damages are difficult to predict
  • receiving one’s money back
  • example: architect charges client 10% of total cost of construction; project gets terminated after schematic so no construction cost; architect entittled to amount of work done up to point when project was terminated
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17
Q

resistitution damages

A

-receiving the contract breacher’s windfall or good fortune

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18
Q

equitable remedies for breach of contract

A

1) injunction: court order that requires or forbids someone from doing something; usually apply to environmental threats or nuisances
2) specific performance: order that requires other party to follow through and perform contract; never a remedy for two parties to work with each other
3) rescission: cancelling contract and returning two parties to their original state before contract was made

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19
Q

Consequential damages

A

-causally remote indirect damages, recoverable only if

reasonably foreseeable when the contract was formed)

-remote consequences of breech,

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20
Q

liquidated damages

A
  • way to convert time delays into money
  • penalty clause; for everyday the contractor is late, the contractor owes the owner $500
  • Liquidated damages (usually per-day delay costs stipulated in the contract, where the parties anticipated that actual losses would be difficult to calculate – not a penalty)
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21
Q

punitive damages

A
  • not awarded for breach of contract
  • incentivize parties to not perfrom same mistakes again
22
Q

legal fees

A
  • awardable only if the contract says so
  • not a recoverable damage
  • prevailing party clause; winner of dispute gets their legal fees paid by othrer party
23
Q

duty to mitigate

A
  • innocent party can’t rack up as many damages as they want
  • innocent party has to make an effort to minimize damges
24
Q

who makes punchlist?

A

contractor makes punch list

-architect supplements

25
Q

Percentage breakdown of each project phase

SD ___%

DD ___%

CD ___%

Bidding/Negotiation ___%

Construction ___%

A

SD 15%

DD 20%

CD 40%

Bidding Negotiation 5%

Construction 20%

26
Q

payments to architect usually consists of three types

A

basic serives

additional services

reimbursable expenses

27
Q

Interest rate to charge clients if they are late?

A

1% per month

28
Q

How to determine if part of a project is part of means and methods of construction?

A

Ask this question:

When the building is completed, will that thing still be there? (scaffolding, shoring)

29
Q

Who is responsible over job site safety?

A
  • under A201 the contractor is soley responsible
  • owner is also responsible for job site safety according to common law
30
Q

If contractor sees a construction procedure in your drawings and/or specs and object to it by saying that it is unsafe and proposes an alternative method for construction? What should be an appropriate response?

A
  • Fristly, Don’t speficy a construction procedure in your specs or drawings
  • advise contractor to do it his or her way, making contractor responsible in the case of any losses or damages
  • if you tell the contractor to follow specs, the owner becomes responsible
  • architect is never responsible
31
Q

What are the two types of concealed or unknown conditions described under AIA A201

A

1) subsurface or otherwise concealed physical conditions that differ materially from those indicated in the Contract Documents
2) unknown physical conditions of an unusualy nature that differ materially from those ordinarily found to exist and generally recongnized as inherent in construction activities

32
Q

if the architect and owner, reject a sub contractor that the GC wants to hire and the GC has to hire a more expensive subcontractor, what happens?

A

the GC has to honor the rejection, but will get compensated the difference between the more expesive sub- contractor and the sub-contractor that was rejected

33
Q

why use retainage?

A
  • to balance contract
  • amount withheld by owner from contractor
34
Q

app for payment

A
  • calc for how much he’s owed
  • allocation to subs
35
Q

acceleration

A
  • conractor speeds up work; orders multiple crews; order crew to work overtime
  • acceleration is always more expensive
36
Q

Hierarchies of Law…

A

1) national (constitution)
2) statute
3) executive order
4) administrative regulations: affects architecture a lot
5) common law
6) law of contracts: voluntary, within your control
7) custom and practice

37
Q

What is deposition

A
  • asking questions to a witness outside the courtroom
  • performed on all witnesses
  • taken under oath
38
Q

How are arbitrators selected?

A
  • both sides get a list of eligible arbitrators
  • both sides are asked to rank arbitrators, highest ranked arbitrator gets assigned as arbitrator
39
Q

true or false. mediation is binding.

A

false

  • mediation is non-binding
  • similar to negotiation but a neutral third party is present to facilitate a settlement
40
Q

difference between evaluative and non-evaluative mediation

A
  • evaluative: mediator offers opinion on
  • non-evaluative: rules are set to expedite settlement (example: baseball arbitration)
41
Q

What is the difference between a holding out statute and a practice statute?

A

holding out statute: regulates how you advertise or describe yourself as an architect; can’t use “architect” unless your are licensed

practice statute: prohibits you from practicing architecture unless you are licensed

42
Q

What is a fiduciary duty?

A

-agent’s duty to a principal

4 types: 1) loyalty, 2) care (not being neglient), 3) obedience, 4) notification (forwarding info)

43
Q

What is a soul proprietorship?

A
  • simplest way to practice architect
  • no legal distinction between individual and business
44
Q

What is a partnership in the practice of architecture?

A
  • similar to a sole proprietorship, but contains two or more proprietors
  • each partner is the agent of the other partner(s)
  • no liability protection (parteners become liable if building falls and injures someone)
45
Q

What are corporations?

A
  • separate legal entities
  • owners are not agents of the corporation
  • officers run day-to-day operations
  • there is no personal liability
  • can be double taxed for profits
46
Q

What are limited liability companies (LLC)?

A
  • hybrid between partnerships and corporation
  • contains liability protection found in corporations while also allowing tax and accounting flexibility in partnerships
  • considered a separate legal entity
47
Q

What is the difference between Bilateral and Unilateral Contracts ?

A
  • Bilateral contracts involve an exchange of mutual promises (or completed performance and a promise of future performance)
  • Unilateral contracts are like a contest, with no promise of performance by the contestant
48
Q

What is thegeneral time frame of the statute of repose for architects?

A

10 years

-measured from the date of the act or omission or at substantial completion

49
Q

What is the general time frame for the statute of limitations for architect?

A

typically 4 years (state by state)

-measured from the date of discovery

50
Q

True or false?

It isn’t possible to modify a written contract by means of an oral agreement?

A

False.

-a contract can be modified by any means that is legally permissible

51
Q

If an architect draws terrible flashing details for a roof, but the roofing contractor knows better and doesn’t follow the architect’s details and builds the roof correctly so that there will be no leaks, did the architect breach his or her contract?

A

no, architect is not liable because there was no causation and no damages, therefore no claim.

52
Q

How does the court interpret a contract?

A
  • determines the agreement/deal between the parties
  • the court enforces the deal

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