INTRODUCTION TO LAW LEGAL SYSTEMS IN THE UNITED STATES AND THE WORLD 20 EVOLUTION OF ENGINEERING AND LAW 2 SUBSTANTIVE V. PROCEDURAL LAW 38 CHAPTER 2

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1 T A B L E O F C O N T E N T S FOREWORD V ABOUT THE AUTHORS IX PREFACE XXIV I INTRODUCTION TO LAW PART ONE CHAPTER 1 EVOLUTION OF ENGINEERING AND LAW Introduction to Engineering and Law Military and Civil Engineering Criminal and Civil Law Society and the Law The Code of Hammurabi Law as a Process The Law in General Substantive v. Procedural Law Criminal v. Civil Law Common Law v. Statute Law v. Administrative Law v. Constitutional Law International Law v. Commercial Law v. Maritime Law Conclusion Contacts with Lawyers Licensing Code of Ethics of the National Society of Professional Engineers (NSPE) Definitions A General Picture of Engineering Responsibility of the Engineer Phases of the Development of a Construction Project 18 CHAPTER 2 LEGAL SYSTEMS IN THE UNITED STATES AND THE WORLD The English Common Law System Common Law Statute Law Federal v. State Law Uniform Laws and Codes Merger of Consensus, Statutes, and Codes Equity The European Civil Law System The Napoleonic Code Modern French Law Export to Spain and Colonies of Spain Global Diversity of Civil Law Common and Civil Law and NAFTA Civil Law in the United States The Chinese (Justice) Law System Historical Post Current Trends The Shari a Law and Other Legal Systems Historical Sunni Shi a Understanding of Law and the Global Economy 37 CHAPTER 3 SUBSTANTIVE V. PROCEDURAL LAW The Ten Commandments Evidence 39 xii boc97849_fm_i_xxvii.indd xii 11/13/09 1:03:08 PM

2 Contents xiii Competency of Witnesses and Excluded Communications The Hearsay Evidence Rule and Exceptions Best-Evidence Rule Parol Evidence Rule Reference Material as Evidence Civil Procedure Criminal Procedure Choice of Law 47 CHAPTER 4 SYSTEMS OF COURTS U.S. Federal Courts U.S. Court of Federal Claims Armed Services Board of Contract Appeals U.S. State Courts U.S. Arbitration Transnational Adjudication 53 Questions on Introduction to Law 53 CHAPTER 6 FORMATION OF CONTRACTS Definition of the Word Contract Competent Parties Proper Subject Matter Offer Acceptance Meeting of the Minds Consideration Mutuality of Obligation Minimum Terms 87 CHAPTER 7 PROCEDURAL ISSUES IN FORMATION OF CONTRACTS Assignment Promissory Estoppel Fraud and Material Misrepresentation Statute of Frauds 92 II LAW OF CONTRACTS PART TWO CHAPTER 5 TYPES OF CONTRACTS Expressed and Implied Quasi-contracts Unilateral and Bilateral Joint and Several Entire and Severable Void and Voidable Executory and Executed Negotiated and Adhesion Privity, Subcontracts, and Mechanic s Liens Transactional Analysis 66 CHAPTER 8 TERMS AND CONDITIONS Definition and Classification Potestative, Casual, and Mixed Single, Copulative, and Disjunctive Expressed, Implied in Fact, and Implied in Law Precedent and Subsequent Concurrent Personal Taste Time of Performance Place of Performance Amount of Compensation Failure of Condition 98 boc97849_fm_i_xxvii.indd xiii 11/13/09 1:03:08 PM

3 xiv Contents CHAPTER 9 PRIVITY AND THIRD-PARTY BENEFICIARIES Requirement for Privity The Creditor Beneficiary The Donee Beneficiary The Incidental Beneficiary The Intended Beneficiary Rescission of Third-Party Beneficiary Contracts Release Novation Cancellation Accord and Satisfaction Waiver Account Stated Lapse Statutes of Limitations v. Doctrine of Laches Judgment 118 CHAPTER 10 CONSTRUCTION AND INTERPRETATION General Rules of Construction Intent v. Parol Evidence Rule Contract to Be Considered as a Whole Construing Ambiguous Terminology Parties Own Interpretation Implied Terms Priority of Documents Unilateral and Clerical Errors Conflict of Laws Substantive v. Procedural 105 CHAPTER 11 DISCHARGE OF OBLIGATIONS Performance Tender Condition Subsequent Impossibility Destruction of Subject Matter Commercial Frustration Rescission Substitution of Contract Reformation 114 CHAPTER 12 ISSUES WITH DISCHARGE BY PERFORMANCE Substantial Performance of an Entire Contract Substantial Performance of a Severable Obligation Partial Performance and Divisibility Timely Performance v. Time Is of the Essence Evaluation of Performance v. Good Faith 121 CHAPTER 13 REMEDIES FOR BREACH OF CONTRACT General Considerations for Remedies for Breach Termination Specific Performance Specific Performance for Land Specific Performance for Services Specific Performance for Goods Additional Considerations for Specific Performance Monetary Damages 126 boc97849_fm_i_xxvii.indd xiv 11/13/09 1:03:08 PM

4 Contents xv Compensatory Damages Incidental Damages Consequential Damages Nominal Damages Punitive Damages and Common Law Punitive Damages and Civil Law Liquidated or Stipulated Damages Duty to Mitigate Damages Restitution and Constructive Trusts Special Rules for Goods Special Rules for Improvements to Real Property The Economic Waste Rule 132 Questions on Law of Contracts 133 III RELATIONSHIPS OF PART THREE INDIVIDUALS AND SOCIETY CHAPTER 14 AGENCY Definitions and Distinctions Independent Contractor Distinguished from Agent Trustee Distinguished from Agent Importance of Agency Creating the Agency Relationship Agency by Estoppel or Ratification General and Special Agent Position of the Agent Position of the Principal The Undisclosed Principal Subagents Termination of the Agency 147 CHAPTER 15 PARTNERSHIPS Nature of a General Partnership Articles of Partnership Oral and Implied Partnerships Each Partner as Agent of the Partnership Overreaching by a Partner Tort Liability Contract Liability Incoming and Retiring General Partners Termination of the Partnership Limited Partnership Subpartnership Joint Ventures 156 CHAPTER 16 CORPORATIONS Concept of a Fictitious Entity History of Corporations Types of Corporations Public Corporations Quasi-Public Corporations Membership Corporations Characteristics of a Private Corporation Powers of a Private Corporation Formation of a Private Corporation Issues Regarding Defectively Formed Corporations Ultra Vires Activity Stock and Stockholders Directors Officers Control Devices of Stockholders Subsidiary and Affiliated Corporations 171 boc97849_fm_i_xxvii.indd xv 11/13/09 1:03:08 PM

5 xvi Contents Holding Companies, Consolidations, and Mergers Dissolution and Winding Up Bankruptcy and Reorganization 171 CHAPTER 17 INSURANCE Introduction Nature of Insurance The Policy Is the Contract Insurable Interest Governmental Regulation Some Types of Insurance Coverage Professional Liability Insurance Owner s Protective Liability Insurance Contractor s Liability Insurance Builder s Risk Insurance 179 CHAPTER 18 BONDS AND SURETYSHIP Bonds in General Tripartite Parties to a Bond Fidelity Bonds Bail Bonds Surety Bonds Bonds in Public Works Contract Bonds Principal s Relations with Surety Obligee s Relations with Surety 186 CHAPTER 19 FEDERAL STATUTES AND REGULATIONS Labor Law Employment Discrimination Affirmative Action Americans with Disabilities Act Workman s Compensation Acts Occupational Safety and Health Act Responsibility for Employee Health, Safety, and Welfare 198 Questions on Law of Relationships 198 IV LAW OF TORTS PART FOUR CHAPTER 20 DEFINITION AND SCOPE OF TORTS Definition and Scope of Torts Classes of Torts Bases of Tort Liability Vicarious Liability Immunities 210 CHAPTER 21 TORTS BASED UPON INTENTIONAL ACTIONS Introduction Intent Battery Assault False Imprisonment Trespass to Land Conversion Trespass to Chattel Nuisance Emotional Disturbance Intentional Infliction of Emotional Distress Defamation 220 boc97849_fm_i_xxviii.indd xvi 12/11/09 8:27:35 AM

6 Contents xvii Right to Privacy Injurious Falsehood Intentional Interference with Economic Relations Fraudulent Misrepresentation Malicious Prosecution Malicious Use of Process Punitive Damages for Intentional Torts 227 CHAPTER 22 TORTS BASED UPON NEGLIGENT ACTIONS Definition Elements of Negligence Standard of Care for Reasonable Person Standard of Care for Reasonable Professional Proof of Negligence Res Ipsa Loquitur Violation of Statute Gross Negligence Proximate Cause and Foreseeability Imputed Negligence Contributory Negligence Comparative Negligence Assumption of Risk Last Clear Chance Guest Statutes Family Purpose Doctrine Damages for Negligence 239 CHAPTER 23 TORTS WITHOUT FAULT Strict Liability v. Absolute Liability Torts Based Upon Ownership of Real Property Liability of Landowners Liability for Lateral and Subjacent Support Liability of Lessors Liability of Lessees v. Lessors Damages for Real Property Torts Torts Based Upon Ownership of Personal Property Strict Liability for Dangerous Instrumentality Strict Liability for Nondangerous Animals Strict Liability for Extra-Hazardous Activity Damages for Strict Liability Torts Based Upon Products Liability Historical Basis for Liability Based Upon Distribution Manufacture or Distribution of Defective Goods Damages for Product Liability Torts Based Upon Provision of Services Past Practice of Protecting Professionals Trends in Medicine, Accounting, and Law Trends in Engineering 252 CHAPTER 24 PROCEDURAL ISSUES RELATING TO TORTS Choice of Remedy and the Economic Loss Rule Statutes of Limitations Statutes of Repose Common Law Equitable Doctrine of Laches Survival and Wrongful Death Statutes 255 boc97849_fm_i_xxvii.indd xvii 11/13/09 1:03:09 PM

7 xviii Contents 24.6 Intrafamily Torts The Future of Torts 257 CHAPTER 25 PROFESSIONAL LIABILITY FOR ARCHITECTS AND ENGINEERS Scope of the Problem Definitions and Distinctions The Architect s Undertaking The Requisite Degree of Skill Duty to the Owner or Employer Measure of Damages for Defective Plans Measure of Damages for Defective Inspection Liability to Third Parties The Trend Toward Liability Without Fault Defensive Posture Measure of Damages for Personal Injury Problems of Proof A Representative Case Small Things May Prove Important Indemnification Clauses and the Third-Party Demand A Case to Think About 277 Questions on Law of Torts 278 V LAW OF REAL AND OTHER PROPERTY PART FIVE 26.4 Ownership by Whom Ownership of What Encumbrances Upon Realty Easements Nature of Easements Easement Acquisition Licenses Profits Covenants Equitable Servitude Zoning Taxes Liens Acquisition of Realty Grant Reversion Reservation Adverse Possession Mortgages Landlord/Tenant Relationships Types of Leases Duties of Landlord Duties of Tenant Mechanics of Transfer of Title The Contract of Sale The Deed Surveying and Boundary Law Recordation Dedication Eminent Domain 315 CHAPTER 26 REAL AND PERSONAL PROPERTY History of Ownership of Real and Personal Property Realty v. Personalty Ownership of When 289 CHAPTER 27 ABOVE AND BELOW AIR, WATER, AND MINERAL RIGHTS Introduction Definitions and Distinctions Riparian System 317 boc97849_fm_i_xxvii.indd xviii 11/13/09 1:03:09 PM

8 Contents xix 27.4 Overlying and Percolating Groundwater Appropriation System Surface Water and Drainage Navigable Waterways Reservoirs Rights to Water Power Mining and Water Rights Flood Control State Water Codes Air Rights Mineral Rights 332 CHAPTER 28 INTELLECTUAL PROPERTY Introduction Definitions and Purposes Patent Records Patentability Application for a Patent Specifications Claims Validity Date of Conception of Idea Reduction to Practice Diligence Keeping Notes on the Invention Ownership of the Patent Secret Information Licenses, Assignments, and Grants Patents on New Technology Copyrights and Trademarks 349 Questions on Law of Real and Other Property 352 VI APPLICATION TO ENGINEERING PART SIX AND CONSTRUCTION PROJECTS CHAPTER 29 CONTRACTS FOR CONSTRUCTION PROJECTS Preliminary Matters Relating to Contract Documents Application to Construction Industry Contracts for Engineering and Architectural Services Components of a Construction Contract Types of Contracts for Construction Stipulated Sum Contract Unit-Price Contract Cost-Plus-Percentage Contract Cost-Plus-Fixed-Fee Contract Guaranteed Maximum Price Contract Design Build Contracts Design Build Operate Contracts Subdivision into Several Contracts Preparing Enforceable Contract Documents Standard Form Contracts of the Industry 373 CHAPTER 30 DRAWINGS Introduction Preparing Enforceable Drawings Use of Design Drawings Tabulation of Drawings 377 boc97849_fm_i_xxvii.indd xix 11/13/09 1:03:09 PM

9 xx Contents 30.5 Preservation of Contract Drawings Sources of Trouble Development of Details Planning Specifications for Workmanship Sample Paragraphs Typical List of Items Revisions Notes Sealing of Electronic CAD Drawings 387 CHAPTER 31 SPECIFICATIONS Introduction Preparation of Enforceable Specifications Write the Specification for the Reader General Considerations Types of Specification 392 CHAPTER 33 SPECIFICATIONS FOR MATERIALS Introduction Discretionary Power of the Engineer Standard Products Standard Specifications for Materials Use of Previous Specifications Specifications in Terms of Service Planning Detailed Specifications Special Items Organization Dividing the Specification into Sections Organization Within Each Section Language Examples of Wording 402 CHAPTER 32 SPECIFICATIONS FOR WORKMANSHIP Specifying Procedures Sample Paragraphs Specifying Workmanship Specifying the Quality of Results Itemizing Standard Specifications for Workmanship Use of Previous Specifications As Directed by the Engineer First Quality Workmanship Intent of Plans and Specifications 416 CHAPTER 34 GENERAL CONDITIONS Introduction Purpose of Written Contract Papers Standard Contracts Standard Contract Clauses Contractor s Warranties Approval of Contractor s Plans and Equipment Defective Drawings Approval of Contractor s Drawings Guarantee by the Contractor Conduct of Work Defective Work Relations with Other Contractors and Subcontractors Order of Completion Inspection of Materials 448 boc97849_fm_i_xxvii.indd xx 11/13/09 1:03:09 PM

10 Contents xxi Inspection of Field Operations Duties of an Inspector Land and Facilities Permits and Licenses Labor Considerations Notices Work Done by the Owner Lines and Grades Underpinning Order and Discipline Performance Final Inspection and Acceptance Miscellaneous 456 CHAPTER 35 CLAUSES RELATING TO FINANCE Suspension of the Contract Cancellation or Termination of the Contract Transfer of Contract Revisions Extras in General Extras Caused by Subsurface Conditions Extras Caused by Additional Quantities of Work or Materials Extras Caused by Additional Difficulty of Performance Extras Caused by Reduction of Work Responsibility for Extra Cost Errors Discovered by Contractor Exculpatory Language Relating to Claims for Extra Costs Delays Partial Payments Withholding of a Portion of Partial Payment Final Payment Failure to Make Payments Liquidated Damages Damages for Defective or Incomplete Work Special Claims for Damages Against the Contractor Risk, Liability, and Indemnity Power of Engineer in Settling Disputes 480 CHAPTER 36 PROPOSALS Significance of a Proposal Purpose of Proposal Forms Standard Proposal Forms Special Proposal Forms Proposal Forms for Lump-Sum Contracts Proposal Forms for Unit-Price Contracts Proposal Forms for Cost-Plus Contracts Lowest Responsible Bidder Prequalification of Bidders Deposit for Securing Plans Miscellaneous Items for Information to Bidders Preparation of Bid on Lump-Sum Contract Preparation of Bid on Unit-Price Contract Preparation of Bid on Cost-Plus Contract Improper Proposals Alternatives Withdrawal of Proposals Opening of Proposals 502 boc97849_fm_i_xxvii.indd xxi 11/13/09 1:03:09 PM

11 xxii Contents Rejection of Proposals Readvertisement Awarding the Contract 503 CHAPTER 37 ADVERTISING FOR BIDS Purpose of Advertisement Advertising Media Timing of Advertisement Attracting Attention Information to Be Given in the Text 505 CHAPTER 38 DUTY TO DESIGN ENGINEERING V. STATUTORY CODES Duty to Design v. Building Codes ADA Design Considerations Design Considerations of the Statute Selected Language from the Statute OSHA Design Considerations Selected Language from the Statute Design for End Users Design for Constructability Environmental Law Design Considerations National Environmental Policy Act Council on Environmental Quality Environmental Impact Statements Air Pollution Control Clean Air Act New Stationary Sources Nondegradation Mobile Sources of Air Pollution Noise Pollution Water Pollution Point Source Discharges Nonpoint Sources Dredged Material Oil and Hazardous Substances Ocean Dumping Pesticides Solid Wastes 529 Questions on Application to Engineering and Construction Issues 530 VII ENGINEERING AND LEGAL PART SEVEN PROCEDURE CHAPTER 39 THE ENGINEER S ROLE IN LITIGATION Introduction Engineer as an Expert Compensation of an Expert Qualifications for an Expert Knowledge of Subject Necessity for Honest Advice Discovery Broad Reach of Discovery Informal Discovery Interrogatories Production of Documents Spoliation of Evidence , Phone Logs, and Voic 555 boc97849_fm_i_xxvii.indd xxii 11/13/09 1:03:10 PM

12 Contents xxiii Metadata Expert Reports and Drafts Attorney Work Product Depositions Requests for Admissions Commencing a Suit Preparing to Testify Presentation of Information Direct Examination Cross-Examination Objections by Counsel 563 CHAPTER 40 THE ENGINEER S ROLE IN ARBITRATION Function of Arbitration Definition of Arbitration Distinctions The Demand or Submission Resort to Arbitration Disputes Subject to Arbitration Scope of Arbitrator s Authority Reference to Courts Role and Qualifications of an Arbitrator Selection of an Arbitrator Procedure in Arbitration The Award Allocation of Costs of Arbitration Mediation Private Judicial Proceedings 573 Questions on Engineering and Legal Procedure 574 Glossary 577 Index 581 boc97849_fm_i_xxvii.indd xxiii 11/13/09 1:03:10 PM

List of Figures. Acknowledgments About the Author

List of Figures. Acknowledgments About the Author Contents List of Figures Preface Acknowledgments About the Author xxi xxiii xxvii xxix PART A LAWS AND COURTS CHAPTER 1. OUR LEGAL SYSTEM 3 1.1 Common Law versus Civil Law 4 1.1.1 Common Law 4 1.1.2 Civil