DR AZEANITA SURATKON
BFC 31602
Construction law definition, legal sources
and categories
Contract law definition and source
Elements of contract
Discharge of contract
Remedies for breach of contract
The written and unwritten body of rules largely derived from custom and formal
enactment which are recognized as binding among those person who constitute
a community or state, so that they will be imposed upon and enforced among
those persons by appropriate sanctions... (Curzon, A Dictionary of Law)
From the definitions above, the following characteristics form the law:
a body of rules or commands set by a Superior being (i.e. the State) to govern
an inferior being (i.e. an individual);
the rules or commands can be in written or unwritten form;
the sources of rules or commands are essentially custom and legislation;
the rules or commands are binding on the members of the community or
state; and
enforcement is through appropriate sanctions, i.e. fines, imprisonment, etc.
Construction Law is neither a legal term of art nor a technical one. It is used to
cover the whole field of law which in one way another, affects the construction
industry
Before Now
(Simple situation) (Complex situation)
Mutual Trust
Mutual Trust +
+ Self respect
Self respect
Legal contract
Rasulullah SAW said: Muslims are bound by the conditions they made;
except a condition that legalises impermissible act or invalidates
permissible act. (Narrated by Tarmidzi).
Construction law definition, legal sources
and categories
Contract law definition and source
Elements of contract
Termination/discharge of contract
Remedies for breach of contract
OFFER
INTENTION TO CREATE
LEGAL RELATIONS
ACCEPTANCE
CAPACITY TO
CONTRACT
CERTAINTY OF
TERMS
FREE CONSENT
CONSIDERATIONS
& LAWFUL OBJECT
OFFER ACCEPTANCE
An acceptance must mirror the offer and if any of the terms vary, a
counteroffer is formed, not an acceptance.
A counteroffer terminates the offer it has encountered.
Counteroffers can be exchanged until the parties agree on the terms; at
that point, the contract is formed.
If the subcontractor submits a bid to the contractor, and the contractor
sends back a contract to the subcontractor with different terms, the
contractor has not accepted the bid but instead has submitted a
counteroffer. No contract is formed.
Use of a subcontractors bid is not an acceptance of the bid, and no
contract is formed at that point or even after award of the prime contract.
The contractor can use the subcontractors bid in its bid to the prime, but
the contractor is not obligated to hire the subcontractor once the
contractor is awarded the prime contract.
CONSIDERATIONS
A contract can be
terminated by
General damages:
Not specifically pleaded
Assessed and awarded by court
E.g. for pain, inconvenience, disappointment
Special damages:
Must be specifically pleaded and proved
E.g. loss of profit, interest, etc.
DAMAGES
Nominal damages:
Awarded where there is a technical breach but no loss
Always a derisory (small) sum
E.g. trespass, failure of claimant to mitigate loss, or where the plaintiff is
better off (away from) as a result of the breach.
Substantial damages:
Pecuniary compensation to put the innocent party in the position he
would have enjoyed had the contract been performed.
For loss actually sustained
Most common form of compensation
DAMAGES
Exemplary damages:
Vindictive or punitive in nature
Far greater than actual loss sustained
E.g. defamation, degrading someone, breach of promise (e.g. to marry),
etc.
Unliquidated damages:
Unascertained damages that need to be proved.
Dependent on circumstances of the case
DAMAGES
Liquidated damages:
Agreed and ascertained at time of contracting (pre-calculated damages
usually calculated per day of delay)
Expressly stipulated in contract
Governed by S75, Contracts Act 1950