Definitions for Quiz 1 of ConE 380
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| Law | -Rules set up by a government to regulate
how people and other entities act and interact
―A system that promotes social order and
justice by establishing rules of moral conduct
Engineering Law
(“the law”)
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| Maxims | ―Underlying principles on which case law is based
―Basis of public policy
―Reflect society’s attitude
―Can be codified as law or policy but also unstated
―Liability follows responsibility
―Rule must have reason
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| Jurisprudence | -The philosophy of law; the science concerned with ascertaining the principles upon which legal rules are based to classify rules and establish relationships
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| U.S. Social Values | ―Life, liberty and the pursuit of happiness
―Protection of individual rights
―Capitalist economy
―Described in Bill of Rights
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| Restitution: | restore party; equitable remedy
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| Maxims | ―The law ultimately controls, not the contract
―The law never requires impossibilities
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| Maxims | ―Parties must come to court with clean hands
―Low abhors waste
―Every wrong has a remedy
―The one who takes the benefit must bear the
burden
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| Common Law System | ―Laws based upon codes, statutes & cases (judges decisions become law for future similar cases)
―Kudge-made Law
―U.S. Federal Law & 49 States
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| Civil Law System | ―Laws based upon codes & statues (no judge-made case law)
―Law is heavily codified; extensive regulations to dictate behavior; strict interpretation
―State of Louisiana
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| Criminal Law / Criminal Justice System | Prevent and punish certain acts against the public
welfare that society has deemed unacceptable
Protect society as a whole rather than individuals
Prosecution brought only by government
Proof beyond a reasonable doubt
Higher level of proof than
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| Tort Law (injury law) | Implicit duties involuntary duties imposed by law that people have with one another regardless of existence of contractual relationship (negligence)
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| Contract Law | ―Supports and uphold voluntary duties between
parties; promise for performance and payment
―Parties must honor its agreed upon obligations
―Parties are presumed to know content of contracts
―Law may or may not uphold contract
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| Sovereign Immunity | no party can sue the government without the government’s permission
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| Types of Law | Constitutional Law
Statutory Law
Judge-made Law (case law, common law)
Administrative Regulations
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| Constitutional Law | Established by the constitution of state or U.S.
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| Statutory Law | Laws created by legislatures (state, county, local)
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| Judge-made Law (case law, common law) | Made by appellate and supreme court judges
Established by precedence (what happened in similar cases in the past)
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| Administrative Regulations | ―Regulations are laws enacted by admin. agencies
―Regulations have the “force of law”
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| Remand | Direction of a superior court to a lower court to review a case (to remand is to send back)
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| Bench Trial | Trial without a jury; judge in this case renders all legal and factual issues
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| Statue of Limitations | ―How long after an event can a lawsuit can be filed
―Time window starts when the event occurs
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| Statue of Repose | ―How long can a contractor or designer be sued for construction defects
―Time window begins at substantial completion of the project
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| Summary judgment (motion to dismiss) | Judge reviews law and evidence to determine if the matter meets requirements for trial (are there issues of fact or law to decide)
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| Drennan Rule (Majority Rule) | subcontractor cannot rescind a bid (in other words it is irrevocable) for a reasonable time after the award of the prime contract, if a contractor has relied upon in preparing its bid for the owner; this rule premised upon promissory estoppel
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| Promissory Estoppel | Responsibility which arises when there is a promise which promisor (receives) should reasonably expect to induce action or forbearance of a definite and substantial character on the part of promisee (gives), … , and such promise is binding if injustice ca
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| James Baird Rule (Minority Rule) | subcontractor can rescind a bid any time prior to its acceptance by the contractor; consistent with general contract law/contract formation.
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| California Rule | subcontractor can rescind a bid any time prior to acceptance unless the general has stated in writing that it will accept the subcontractor’s bid if awarded the prime contract; sub and GC mutually obligated
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| Categories of Dispute Resolution | ― Avoidance
― Intimidation
― Negotiation
― Mediation
― Arbitration
― Litigation
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| Avoidance | Ignore dispute or conflict; one or both people make no attempt to interact to resolve issue
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| Intimidation | Use of threats or violence to obtain agreement
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| Negotiation | Affirmative communication between parties in a dispute in attempt to resolve it without formal procedures
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| Arbitration | Process of private dispute resolution in which a neutral third party (arbitrator) or panel renders a decision after hearing the sides of the disputing parties
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| Mediation | The use of an independent, trained third party (mediator) to help the disputing parties come to some resolution; private
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| Ethics | System or code of behavior adopted by a particular profession or group and is a characteristic of that particular group
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| Morality | System or code of behavior adopted by a particular person and is a characteristic of that individual
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| Values | Personal judgments of good or bad relating to the worth or importance of any particular behavior or action
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| Spearin doctrine | Liability for the performance of a design is the owner’s risk/responsibility; contractor is not responsible for synthesis /coordination of of plans and specifications
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