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Terminology
Litigation: A lawsuit
Defendant: The party defending the action against who the claim was made (in
criminal matters, the defendant is the accused)
Respondent: Party trying to uphold the decision of a lower court that is being
appealed
LIMITATION PERIODS
Tort actions & actions for breach of contract, must be commenced with in a prescribed
time period from the time the cause of action arose (usually 6 years)
In contract, unless specified, the time period is 6 years (but extended to 20 when contract
is signed under seal. (Can apply discoverability concept in the contract if no
limitation period is included in the contract).
PROOF
Civil Proceedings Plaintiff must prove the case against the defendant by
(i.e. tort & contract) persuading the court on the balance of probabilities that
facts are as alleged and the defendant should be held liable
Criminal Proceedings Accused person must be proven guilty beyond a reasonable
doubt. (This is a higher degree of proof, than balance of
probabilities).
Expert Witness Permitted to express opinions with respect to his/her area of
expertise. (Non-expert witnesses can only express facts of the
case).
CONTRACTS
Offer Made & Accepted Offer: Promise made to someone (the offeree) by someone
else (offeror). (Acceptance must be clearly communicated)
Irrevocable Offer: Offeree might want to ensure an
offer will not be revoked before they can accept it.
(Consideration necessary in order for irrevocable offer
to be binding)
The Option Contract: The right to accept an offer is
preserved until the offeree chooses to exercise the
option (offeror is thus precluded from revoking the
offer)
Revoking an Offer: Not effective until offeree actually
receives notice
Timing & Accepting an Offer:
Mail: Acceptance is effected when posted
Telegram: Communication is effected when message is
delivered to telegraph operator
Otherwise: Acceptance of offer effected when received by
offeror.
Governing Law: The law of the place where the acceptance
of the offer becomes effective is applicable (unless otherwise
agreed upon)
Mutual Intent to enter Letter of Intent: Agreements to agree rather than well
into the agreement defined agreements (Not enforceable by courts).
Consideration Cause, motive, price or impelling influence that induces a
contracting party to enter into a contract. (Courts not
concerned with adequacy of consideration, unless conditions
amounting to undue influence, duress or fraud exist)
If consideration not present, no contract is formed
unless the document is sealed (i.e. gratuitous promise)
Corporate Seal: Mechanical device used to imprint
Personal Seal: Small red adhesive wafer
An irrevocable offer w/o a seal or consideration is
simply a gratuitous promise, it is not binding.
Equitable Estoppel: Concept that can be applied to prevent a
party to a contract from enforcing its strict contractual terms
where doing so would produce an unfair and inequitable
result. (i.e. unable to meet a deadline due to WWII).
Capacity to Contract All parties must have the necessary capacity to contract
Under-age, intoxication, lunacy
Personnel must have proper authority to do so
Lawful Purpose A contract will not be enforced if the purpose of the contract
is unlawful.
(CONTRACTS, continued)
Discharge of Contacts Performance: when all parties to a contract have completed their
respective obligations, the contract is at an end
Agency Relationship If an engineer exceeds the cope of his or her authority, the
engineer may be liable to the principal for damages resulting
from the engineers actions.
Remuneration If an engineer is retained by a client to perform services, and
undertakes to do so without agreeing with the client on the
amount of remuneration to be received, the law implies that
the engineer shall be paid a reasonable amount for services on
a quantum meruit basis.
Estimated Fee When an engineer enters into a contract with a client, he or
she should cautiously estimate, if required and appropriate,
the amount of the engineers total fee. The engineer should
also emphasize to the client that the quoted total fee is only an
estimate.
Limiting Liability by Reasonable approach would be to limit the engineers
Contract potential liability to the extent of his or her professional
liability insurance coverage.
DUTY OF HONESTY
When engineer enters into contact, he assumes a duty of care in performing services.
Where fraud is involved: Contract may be repudiated & damages awarded for the
tort of deceit. (Fraud is a criminal offense, and is
punishable on conviction, by imprisonment for up to 10
years)
Engineer not normally a party to a construction contract; (usually has a separate contract
with the owner).
As administrator, the engineer may make decisions of major significance to the
rights & obligations of the owner and the contractor. (i.e. may interpret contract
provisions and/or be judge of performance of respective obligations of parties the
contract).
In acting judicially, the engineer must act independently of the owner and in
good faith.
o As long as this is the case, engineers decision will be binding on both
parties
o Negligent certification: engineer may be liable to owner
Engineers Advice to Consistent with tort law principles, engineer may be expected
Contractor to advise a contractor in circumstances where contractor is
reasonably relying on engineers expertise.
Engineer must be extremely careful in doing so as
unwarranted interference with a contractors work
methods may give rise to a damage claim.
Contract administration Should ensure that contract is administered in accordance with
its terms. If to some extent it is administered contrary to its
terms, equitable estopple might arise.
Drawings & One of the most important services by engineer is preparation
Specifications of conceptual & detailed drawings and specifications to
describe the work.
Often the basis of contractors prices
Client also relies on them
Tendering Process Engineer usually involved in tendering documentation
Contractor making bid may take exception to terms &
conditions in owners form of contract. Until owner is
prepared to accept revised terms & conditions, no
contract is formed.
TYPES & FORMS OF CONSTRUCTION CONTRACTS
LIEN LEGISLATION
Builders Lien Act -> Provincial legislation that creates certain lien rights and requires
amounts to be held back from contractors until a specified time.
Alberta: 15 % Holdback
45 days before Holdback can be released.
**Until any lean is filed or until the owner is given notice in writing that a lien is
claimed, an owner is protected if he or she retains the required percentage holdback of
the value of the work done or materials furnished as construction proceeds**
Persons Entitled to the Lien Anyone who supplies services or materials to an improvement for
Rights an owner, contractor or subcontractor, is entitled to a lien.
Rights against owner where Designed to provide protection for parties who do not have privity of
no contract exists contract with owner (right to sure owner directly)
Effect of Lien When owner receives written notice of lien claim, they are required
to retain both the holdback amount & amount of lien claim.
Reporting on, advising on, evaluating, designing, preparing plans and specifications for
or directing the construction, technical inspection, maintenance or operation of any
structure, work or process
(A) that is aimed at the discovery, development or utilization of matter, materials
or energy or in any other way designed for the use and convenience of man,
and
(B) that requires in the reporting, advising, evaluating, designing, preparation or
direction the professional application of the principles of mathematics,
chemistry, physics or any related applied subject, or
teaching engineering at a university.
1. In their areas of practice, hold paramount the health, safety and welfare of the
public, and have regard for the environment.
2. Undertake only work that they are competent to perform by virtue of their training
and experience.
3. Conduct themselves with integrity, honesty, fairness and objectivity in their
professional activities.
4. Comply with applicable statutes, regulations and bylaws in their professional
practices.
5. Uphold and enhance the honour, dignity, and reputation of their professions and,
thus, the ability of the professions to serve the public interest.
(Summarized)
Rights that relate generally to patents, trade-marks, copyrights, and industrial designs
are sometimes called industrial-property rights.
Patents of Invention
Trade-Marks
Copyright
Industrial Designs
A patent of invention provides monopoly rights for a limited period; that is, for the term
of the patent. Once an invention has been patented, its subject matter is no longer
private. Full details of the invention are publicized and become part of the public
domain. When the term of the patent expires, the invention may be freely used by
others. The limited term of a patent protection (20 years) causes some concern; as well, it
is sometimes difficult to enforce a patent. To avoid these problems, inventors sometimes
do not obtain patent protection but rely instead on trade secret protection.