Terms 2

Question 1

INTERFERENCE

Answer 1

the act of hampering, hindering, disturbing, intervening, interposing, or taking part in the concerns and affairs of others. In the construction industry, when a contractor has work interrupted by the acts of the Landscape Architect or owner, it may file suit on the grounds of interference. However, before liability will be assessed, most courts require that interference with the contract be intentional and not merely negligent.

Question 2

INVITATION TO BID

Answer 2

a solicitation for competitive bids; an invitation to submit offers on behalf of contractors, which are then subject to acceptance by the procuring agency or owner to form the basis of the contract. The invitation to bid competitively is not an offer on behalf of the procuring agency or owner to contract but is simply a request or solicitation for offers to contract.

Question 3

JUDICIAL

Answer 3

belonging to the office of a judge, as in a judicial authority, a court of justice, a judicial writ, or a judicial determination.

Question 4

JUDICIARY

Answer 4

pertaining or relating to the courts of justice, to the judicial department of government, or to the administration of justice; that branch of government invested with the judicial power; the system of courts in a country.

Question 5

LATENT

Answer 5

hidden, concealed, dormant; does not appear upon the face of a thing, as in a latent ambiguity.

Question 6

LIABILITY

Answer 6

bound or obliged in law or equity; responsible or answerable to make satisfaction, compensation, or restitution.

Question 7

LICENSE

Answer 7

certificate or document which gives permission; a permission by a competent authority to do some act which, without such authorization, would be illegal or would be a trespass or a tort.

Question 8

LIEN

Answer 8

a charge, security, or encumbrance upon property; a claim or charge on property for payment of some debt, obligation, or duty.

Question 9

MECHANIC’S LIEN

Answer 9

a claim created by law for the purpose of securing priority of payment of the price or value of the work performed and materials furnished in erecting or repairing a building or other structure and, as such, attached to the land as well as to buildings and improvements erected thereon. (See ATTACHMENT)

Question 10

PARTIAL WAIVER OF LIEN

Answer 10

in the construction industry, a document used to certify that a portion of the total amount due to a subcontractor has been paid and, there-fore, that that portion or amount of money cannot be used as a basis for a lien against the property.

Question 11

WAIVER LIEN

Answer 11

to deny the right expressed in the lien. In the construction industry, it is a certificate issued upon completion of the work, signifying that all monies have been paid and that the right to lien against the property is removed.

Question 12

STATUTE OF LIMITATIONS

Answer 12

a statute prescribing limitations to the right to bring on action based on certain pre-scribed causes of action; that is, declaring that no suit shall be maintained on such causes of action unless brought within a specified period after the right has accrued; a certain time allowed by a statute for litigation. The provisions of state constitution are not a grant but are a limitation of legislative power.

Question 13

MANDAMUS

Answer 13

a writ issued from a court of superior jurisdiction and directed to a private or municipal corporation, or any of its offices, or to an executive, administrator, or judicial officer, commanding the performance of a particular act therein specified and belonging to its public, official, or ministerial duty or directing the restoration of the complainant to rights or privileges of which he or she has been illegally deprived; a command from a higher court to a lower court to perform a particular act. In the construction industry, a writ is issued to the contracting officer conducting a bid opening session or the letting of contracts if the officer is not complying with the proper legal procedures. If a public body is withholding the execution of a contract, mandamus may be applied to compel that body to act. (See MANDATE)

Question 14

MANDATE

Answer 14

a precept or order issued by superior court upon the decision of an appeal or writ of error which directs action to be taken or disposition to be made of case. In some state
jurisdictions, the term “mandate” has been substituted for “mandamus” as the formal title of that writ. (See MANDAMUS)

Question 15

MANDATORY CLAUSES – (MANDATORY PROVISIONS)

Answer 15

clauses which must appear in the contract writing due to their legal status as a federal, state, or local law. The amount of minority business participation or the licensing of a contractor or subcontractor are clauses which fall into this category in certain jurisdictions.

Question 16

MATERIAL VARIANCE

Answer 16

a deviation from that which was specified in the original contract documents. In the bid process, a material variance from that which is required in the bid documents will be the basis for rejection of the bid. The degree of variance in a bid process is determined by whether the bidder’s proposal gives it an advantage or benefit not enjoyed by the other bidders. A mere irregularity in form which can be corrected upon the opening of the bid is not considered a material variance.

Question 17

MEETING OF MINDS

Answer 17

the “meeting of minds” required to make a contract is not based on secret purposes or intentions on the part of one of the parties, which it has stored away and not brought to the attention of the other parties, but must be based on purpose and intention which has been made known or from which all of the circumstances should be known. (See
CONTRACT)

Question 18

MERCHANTABILITY

Answer 18

the article sold will be of the general kind described and reasonably fit for the general purpose for which it shall have been sold. Where the article sold is ordinarily used in only one way, its fitness for use in that particular way is impliedly warranted unless there is evidence to the contrary.

Question 19

MISREPRESENTATION

Answer 19

any manifestation by words or other conduct of one person to another that, under the circumstances, amounts to an assertion not in accordance with the facts. A party may be guilty of misrepresentation if it has erred in giving professional opinions or in making representations as to existing facts or conditions which a third party has relied upon in the performance of its work.

Question 20

MUTUALITY OF ASSENT

Answer 20

compliance, approval of some-thing done, or a declaration of willingness to do something in compliance with a request; an acting by two parties to perform a duty toward each other. (See CONTRACT)

Question 21

NEGLIGENCE

Answer 21

failure to exercise the degree of care which a reasonable and prudent party would exercise under the same circumstances. Negligence is committed when a contractual duty is breached. A good example of negligence is where an Landscape Architect failed to indicate in the plans the existence of an electric power line which he or she knew to be in the area of construction.

Question 22

NO DAMAGE FOR DELAY

Answer 22

a clause contained in contracts which grants a party to the contract an extension of time but does not reimburse that party for any additional costs suffered during that time.

Question 23

NULL AND VOID

Answer 23

naught, of no validity or effect. When used in a contract or statute, it often is construed as meaning voidable. A contract is rendered null and void when one of the essential
elements that make up a contract is missing. An example of this is that when an organization is not licensed to perform work in a particular state, that organization does not have the capacity to execute contracts in that state. Such a contract can then be rendered null and void because of its deficiency regarding the capacity of one of the parties.

Question 24

NULLITY

Answer 24

nothing; an act or proceeding in a cause which the opposite party may treat as though it had not taken place or which has absolutely no legal force or effect.

Question 25

OFFER

Answer 25

an act on the part of one party whereby it gives to another the legal power of creating the obligation called contract; a proposal to do a thing; an element of a contract. It must be made by the party which is to make the promise, and it must be made to the party to which the promise is made. It may be made either by word or by signs, either orally or in writing, and either personally or by a messenger; but, in whatever way it is made, it is not an offer in law until it comes to the knowledge of the party to which it is made. An offer must be so definite in its terms, or require such definite terms in acceptance, that the promises and performances to be rendered by each party are reasonably certain. (See CONTRACT)

Question 26

OPTION

Answer 26

a choice; the power or liberty of choosing; some-thing that is or can be chosen. In the construction industry, an option is presented to the building contractor in the form of materials and/or methods which vary from the base requirements, which it may choose in order to meet other requirements of the contract. An example would be to choose a method which would employ more minorities to meet the minority quota. An option has no effect on the cost to the owner. (See ALTERNATE)

Question 27

O.S.H.A. (OCCUPATIONAL SAFETY AND HEALTH ACT)

Answer 27

a federal act creating an agency responsible for safety and health in the work place. The agency has the authority to issue citations to violators of the federal regulations imposed by the agency. There have been instances in the construction industry where O.S.H.A. has been used by the courts to establish a standard of care for the participants in the construction process.

Question 28

OWNER

Answer 28

the party at the instance of which the project is undertaken and the one which will take title to it when it is completed; the party in which is vested the ownership, dominion, or title to property. On a construction project, the owner typically contracts independently with the Landscape Architect or engineer and with the contractor.

Question 29

PAROL EVIDENCE

Answer 29

oral or verbal evidence; that which is given by word of mouth; the ordinary kind of evidence given by witnesses in court. In a particular sense, and with reference to contracts, deeds, wills, and other writings, parol evidence is the same as extraneous evidence or evidence taken from outside of the contract writing.

Question 30

PAROL EVIDENCE RULE

Answer 30

under this rule, when parties put their agreement in writing, all previous oral agreements merge in the writing and a contract, as written, can-not be modified or changed by parol evidence in the absence of a plea of mistake or fraud in the preparation of the writing. But, this rule does not forbid a resort to parol evidence not inconsistent with the matters stated in the writing. In common layman’s terms, parol evidence or extrinsic evidence is not permitted to be used a part of the contract writing once the contract is executed. However, should the writing be ambiguous and in need of clarification, then the courts will permit parol evidence to be received concerning the contract writing. In the construction industry, only the contract is executed, the bid proposal cannot be entered as evidence contrary to the contract writing unless the con-tract writing is ambiguous and the bid proposal is needed for clarification of the ambiguity.

Question 31

PATENT/LATENT TEST

Answer 31

determines whether the danger which caused the damage was latent (hidden) and, there-fore, beyond the control of the observer or patent (readily seen upon a reasonable inspection) and, therefore, within the control of the observer. Application of this test to the construction industry is enforced when the building is turned over to the owner. If the danger can be observed at the time of the acceptance of the building by the owner, but the owner does not make the contractor aware of the deficiency, then the owner will be held responsible for any future damage. However, if the danger is latent and not observable by the owner, then the contractor will be held responsible for any future damage emanating out of this danger.

Question 32

PAYMENT BOND

Answer 32

a legal instrument which provides a source of payment for labor and materialmen should their employer fail to pay them because of either default or bankruptcy. (See BOND)

Question 33

PERFORMANCE BOND

Answer 33

a legal instrument which assures that if the contractor defaults, the surety company will complete performance or pay damages to the extent of the bond. (See BOND)

Question 34

PLAINTIFF

Answer 34

a person or organization which brings an action; the party which complains or sues in a personal action and is so named on the record.

Question 35

PRECEDENT

Answer 35

an adjudged case or decision of a court of justice considered as furnishing an example or authority for an identical or similar case arising afterward or for a similar question of law. It means that a principle of law actually presented to a court of authority for consideration and determination has, after due consideration, been declared to serve as a rule for future guidance in the same or analogous cases, but matters which merely lurk in the record and are not directly advanced or expressly decided are not precedent.

Question 36

PRIME CONTRACTOR

Answer 36

the party signing a contract with another party to directly perform the work required by that contract. (See CONTRACTOR and SUBCONTRACTOR)

Question 37

PRIVITY

Answer 37

relationship of a party which has any part or interest in any action, matter, or thing. Privity of contract is that relationship that exists between two or more contracting parties. In a typical construction project, the contractual relationship between the participants is one of privity between the owner and the design professional and the owner and the contractor. However, there is no privity or contract between the design professional and the contractor.

Question 38

PRIVITY—(NO PRIVITY RULE)

Answer 38

in the 1800’s, many cases were settled when the plaintiff was denied access to the bench due to the no privity rule (no contract existed between the plaintiff and the defendant). However, in recent decades the no privity rule has given way to the notion of third-party liability. (See THIRD-PARTY LIABILITY)

Question 39

PROJECT MANAGEMENT

Answer 39

a system of organizing a construction project from conception to the completion of the project. This system includes management of the preparation of the contract documents, the bid process, and the construction phase. This term sometimes is interchange-ably used with the term “construction management” (See CONSTRUCTION MANAGEMENT)

Question 40

PROTEST

Answer 40

a formal declaration made by a party interested or concerned in some act about to be done, or already per-formed, whereby it expresses its dissent or disapproval or affirms the act against its will. The object of such a declaration generally is to save some right which would be lost to the party if its implied assent could be made out or to exonerate itself from some responsibility which would attach to it otherwise. In common jargon, a protest is considered the initial act in establishing a claim to retain a party’s contractual rights.

Question 41

PUNITIVE DAMAGES

Answer 41

relating to punishment; having the character of punishment or penalty; inflicting punishment or a penalty. (See DAMAGES)

Question 42

QUALITY ASSURANCE

Answer 42

policy in regard to assuring that quality will be achieved on a program or project.

Question 43

QUALITY ASSURANCE PLAN

Answer 43

a plan to implement the policies stated in the quality assurance statement of an organization.

Question 44

QUALITY CONTROL

Answer 44

the implementation of the quality assurance plan, usually during the construction phase.

Question 45

QUALITY CONTROL GROUP

Answer 45

the group of personnel assigned to implement quality control during the construction phase.

Question 46

QUALITY CONTROL PLAN

Answer 46

an implementation plan for application of the quality assurance policies during the construction phase.

Question 47

QUASI-JUDICIAL

Answer 47

a term applied to the action, discretion, etc., of public administrative officers who are required to investigate facts, to draw conclusions from them as a basis for their official action, and to exercise discretion of a judicial nature. The actions of the O.S.H.A. administrators are quasi-judicial in character. When a design professional acts as an arbitrator in resolving disputes between the owner and the contractor, he or she is considered to be acting in a quasi- judicial role. It is in this role that the design professional is granted immunity. (See IMMUNITY)

Question 48

RECOVERY

Answer 48

obtaining a thing by the judgment of a court as the result of an action brought for that purpose; the amount finally collected or the amount of judgment.

Question 49

REDRESS

Answer 49

receiving satisfaction for any injury sustained.

Question 50

REGULATION

Answer 50

a rule or order prescribed for management or government; a regulating principle; a precept; rules of order prescribed by a superior or competent authority relating to the actions of those under its control. An example is the body of federal regulations instituted by O.S.H.A. These regulations must be adhered to by those in the work-place, including the construction project site, or citations will be issued for their violation upon detection.

Question 51

REJECT ANY AND ALL BIDS

Answer 51

a provision of most invitations to bid for both public and private works. In addition, most jurisdictions grant, by statute or ordinance, that same apparent right to all of its political subdivisions. It is the right of the owner or contracting agency to reject any and all bids, generally for some reason. However, some jurisdictions grant outright authority to reject all bids without cause or for any cause it might deem satisfactory. In some jurisdictions and with some government agencies, it must be shown that the rejection was not arbitrary and capricious. In other jurisdictions, the motive for rejection of all bids is immaterial. Yet, in other jurisdictions, there is the requirement that rejection of bids be predicated on good faith and be exercised promptly. Note that the above deals with the affirmative act of rejection of all bids and not with the disqualification of bidders due to material variance in their submission or with the rejection of one bid. In the rejection of a single bid (the lowest responsible and responsive bidder), other factors come into play. In some jurisdictions, the rejected bidder was awarded costs of its bidding process, while in others, though the cost of bid preparation was denied, the contractor was awarded damages to recover reasonable profits, start-up costs, and postbid costs.

Question 52

RELEASE OF LIEN

Answer 52

the relinquishment, concession, or giving up of the right to a lien by the party in which it exists or to which it accrues. In the construction industry, it is a document releasing the signer’s (contractor and/or subcontractor) right to a mechanics’ lien on the project.

Question 53

REPRESENTATIVE

Answer 53

one who stands in the place of another, usually as executor or administrator but not as an agent; one who represents the interests of another. (See AGENT)

Question 54

RESPONSIBLE BIDDER

Answer 54

one who has the capability, in all respects, to fully perform the contract requirements and the integrity and reliability to assure good-faith performance.

Question 55

RESPONSIVE BIDDER

Answer 55

one who has submitted a bid under a competitive sealed bid which conformed in all respects to the invitation for bids so that all bidders may stand on equal footing with respect to method and timeliness of sub-mission and as to the substance of any resulting contract. One is responsive if one replies to the specific questions set forth. In the text of public works contracts, one must respond clearly and without qualification to all inquiries addressed to the invitation to bid.

Question 56

RETAINAGE

Answer 56

an amount of money established by a fixed percentage agreed to in the contract writing that is with-held by one party of the contract from the other as a means of security and/or assurance of performance. In the construction industry, retainage is withheld by the owner against the prime contractor, and the prime contractor, in a similar manner, withholds from its subs. A typical percent-age in the construction industry is 10 percent of the amount paid on the progress payments until 50 percent of the work is completed. At that time, the owner may discontinue withholding the retainage.

Question 57

RISK-SHIFTING TECHNIQUES

Answer 57

typical risk-shifting clauses include indemnification clauses, surety requirements (bid bond, performance bond, and payment bond), “no damage for delay” clauses, etc. Another similar clause is the “condition precedent to payment” clause, which requires the prime contractor to pay his subcontractor only after he has been paid by the owner.

Question 58

SECURITY

Answer 58

protection; assurance; indemnification; terms usually applied to an obligation, pledge, deposit, etc., given by a party to a contract to the other party. The name some-times also is given to a party which becomes surety or guarantor for another. In the construction industry, bonds are considered security against default by the bidder or contractor during the respective process.

Question 59

SOVEREIGN IMMUNITY

Answer 59

a concept adopted by the United States from the courts in England, precluding any legal action against public bodies for either breach of contract or for tort claims. This doctrine is applicable at the federal, state, and local levels of government. However, over the last century, this doctrine has waned, especially in the area of tort claims. In most of the 50 states, sovereign immunity is no longer in effect, especially in the area of tort claims. At the federal level, Congress consented to being sued for breach of contract in 1887 by the Tucker Act, and in the tort field, Congress passed the Federal Tort Claims Act in 1946, permitting lawsuits against the United States for certain types of legal wrongs.

Question 60

STANDARD

Answer 60

general recognition and conformity to established practice; a type, model, or combination of elements accepted as correct or perfect.

Question 61

STANDARD OF PERFORMANCE – (STANDARD OF CARE)

Answer 61

that standard which a professional (doctor, lawyer, Landscape Architect, engineer, etc.) must exercise to the degree of care and expertise which a reasonably competent professional of the same discipline would exercise under the circumstances. The standard of performance is established by the professionals working in the same geographical area.

Question 62

STATEMENT OF PROBABLE CONSTRUCTION COSTS

Answer 62

term introduced by the A.I.A. in 1963 to help minimize the responsibility of guaranteeing the cost estimate. Prior to that time, “cost estimate” was used.

Question 63

STATUTE

Answer 63

an act of a legislature declaring or prohibiting some-thing; a particular law enacted and established by the will of the legislative department of government. These laws must be adhered to by all parties within that jurisdiction.

Question 64

STATUTE OF FRAUDS

Answer 64

a statute that requires that no suit or action shall be maintained on certain classes of contracts or engagements unless there shall be a note or memorandum in writing and signed by the party to be charged or by its authorized agent. Its object is to close the door to the numerous frauds and perjuries. In essence, this statute declares that unless a contract is put in writing, it may not be substantiated as legally binding in a court of law. However, one should be aware of the fact that oral agreements are legally binding within certain parameters. These parameters are usually established by the Uniform Commercial Code.

Question 65

STRICT LIABILITY

Answer 65

liability without fault. A case is one of strict liability where neither care nor negligence, neither good nor bad faith, and neither knowledge nor ignorance will save the defendant.

Question 66

SUBCONTRACTOR

Answer 66

a party which takes over portions of a contract from the principal (prime) contractor or another subcontractor; a party which has entered into a contract, express or implied, for the performance of an act with the party which has already contracted for its performance. Most subcontractor contracts hold the subcontractor to the same terms and conditions which are established in the prime contractor’s contract with the other parties. Generally, subcontractors specialize in specific building trade, and, as specialists, most subcontractors are licensed by the state in which they operate. The subcontractor’s relationship to the prime contractor is that of an independent contractor.

Question 67

SUBSTANTIAL COMPLETION

Answer 67

the state of completion whereby the building, or a part thereof, is rendered complete to the degree that the owner can use the building, or a part thereof, for its intended purpose.

Question 68

SUBSTANTIAL CONFORMITY

Answer 68

where a party has complied with the requirements of a writing to the degree that it is essentially the same as that which is required. Substantial conformity might be considered the opposite of material variance. (See MATERIAL VARIANCE)

Question 69

SUBSTANTIAL PERFORMANCE

Answer 69

exists where there has been no willful departure from the terms of the contract and no omission in essential points; where the contract has been honestly and faithfully performed in its material and substantial particulars, and where the only variance from the strict and literal performance consists of technical or unimportant omissions or defects. In the construction industry, progress payments are made to the contractor based on the substantial performance of the work for that period of time. Usually the issue of substantiality of performance arises when the project is essentially completed, when the owner occupies the building, and when minor deviations from contract requirements become evident. The contractor demands the unpaid balance of the contract price based on substantial performance, and the owner defends by asserting that the balance need not be paid until every deviation is eliminated.

Question 70

SUPPLEMENTAL CONDITIONS

Answer 70

when an organization has standard general conditions for inclusion in specifications, supplemental conditions are utilized to modify the general conditions to make them project specific.

Question 71

SURETY

Answer 71

a party which undertakes to pay money in the event that its principal fails. (See BOND)

Question 72

“SUSPENSION OF WORK” CLAUSE

Answer 72

clause inserted in construction contracts only and which deals with the right of the owner to suspend the work for a period of time as it may determine to be appropriate for the convenience of the owner. When such a clause is inserted into the contract and is then exercised, an adjustment shall be made, an increase in the cost of performance of the contract (excluding profit) necessarily shall be caused by such unreasonable suspension, delay, or interruption, and the contract shall be modified in writing accordingly. However, no adjustment shall be made under this clause for any suspension by the owner if performance would have been suspended by reason of any other cause, including fault or negligence of the con-tractor, or if an equitable adjustment is provided for or excluded under any other provision of the contract.

Question 73

SWEAT EQUITY

Answer 73

a term used to mean “mutual help” in certain federal agencies’ contracts. The Department of Health and Urban Development (HUD) requires that the tenants of housing built by federal assistance programs, such as housing for the Indians on Indian reservations, con-tribute to the construction of the unit by giving of their manual labor. This labor is known as mutual help or sweat equity.

Question 74

TERMINATION

Answer 74

to put an end to; to make to cease; to end.

Question 75

TERMINATION FOR DEFAULT

Answer 75

construction contracts generally contain specific provisions itemizing events of default. However, even if not specifically itemized, delay in performance resulting in a failure to complete the contract in a timely fashion is universally recognized as a breach of contract. Whether the breach for untimely performance justifies an owner in terminating the contract may depend upon whether “time is of the essence” for performance of the contract. In federal construction contracts, time is of the essence, and if the contractor fails to perform by the date specified, the government may terminate the contract for default. In private contracts, where time is of the essence, the owner has a common-law right to terminate if the contractor fails to perform within the time specified, unless the time for performance has been waived or extended by the acts of the party.

Question 76

THIRD PARTY

Answer 76

a party which is not privy to a contract but which may be bound or benefited through a written or implied legal relationship.

Question 77

THIRD-PARTY BENEFICIARY

Answer 77

in order for a party not privy to a contract to maintain an action thereon as a third-party beneficiary, it must appear that the contract was made and intended for its benefit. The benefit must be one that is not merely incidental but must be immediate in such a sense as to indicate the assumption of a duty to make reparation if the benefit is lost.

Question 78

THIRD-PARTY LIABILITY

Answer 78

a condition whereby a party to a contract may be held liable to a third party related to the contract by its negligent or fraudulent activity in performance of contract. A third party may recover damages where the circumstances are such that the transaction, within the contract requirements, was intended to affect the plaintiff (third party) , and injury to the plaintiff was foreseeable.

Question 79

TORT

Answer 79

a private or civil wrong or injury; a wrong independent of contract.

Question 80

TORT FEASOR

Answer 80

a wrongdoer; one who commits or is guilty of a tort.

Question 81

TREBLE DAMAGES

Answer 81

damages given by statute in certain cases, consisting of the single damages found by the jury tripled in amount. The usual practice is for the jury to find the amount of the damages and then for the court to order that amount to be trebled.

Question 82

TURNKEY CONTRACT

Answer 82

a method of organizing a building project in which a contractor and a designer agree to provide a finished building at an agreed-upon price. Upon completion of the project, all the owner has to do is “turn the key” in the door. Most turnkey projects are built for the Department of Housing and Urban Development (HUD).

Question 83

UNCERTAINTY

Answer 83

a state or quality of being unknown or vague; such vagueness, obscurity, or confusion in any writ-ten instrument, e.g., a contract, as to render it unintelligible to those who are called upon to execute or interpret it so that no definite meaning can be extracted from it.

Question 84

UNCONSTITUTIONAL

Answer 84

that which is contrary to the constitution. The term can be used in two different senses. The first is that legislation conflicts with some recognized general principle or conflicts with a generally accepted policy. The second is that the legislation conflicts with some provision of the written constitution which it is beyond the power of the legislature to change.

Question 85

UNIFIED BID

Answer 85

in a multiple prime construction contract, solicitation for bids is presented to the bidders in several separate prime contract packages. In a unified bid procedure, the bidders are permitted to bid on either one or as many of the bid packages as are presented.

Question 86

UNIFORM COMMERCIAL CODE

Answer 86

a body of laws which governs the sale of goods in almost every state of the United States. Application of the Uniform Commercial Code in the construction industry is rare except in the area of shipping, handling, and purchasing of materials for the project.

Question 87

UNJUST ENRICHMENT

Answer 87

doctrine stating that persons shall not be allowed to profit or to enrich themselves inequitably at another’s expense. A typical example of this doctrine is when an owner withholds payment to a contractor for work already performed, claiming that work is not acceptable. The value of the performed work far exceeds that portion which the owner considers unacceptable.

Question 88

WAIVER

Answer 88

the intentional or voluntary relinquishment of a known right. Waiver is essentially unilateral, resulting as legal consequence from some act or conduct of parties against which it operates, and no act of the party in whose favor it is made is necessary to complete it. In the construction industry, an owner may waiver his or her right to a signed change order for work incorporated into the project when the following conditions exist: the owner is aware of the change but does not object; the item is of such magnitude that the change could not be made without the owner’s knowledge; the changes are necessary but were not foreseen by the design professional; and some subsequent oral agreement (the Landscape Architect’s orally approved substitution and/or change with which the owner agreed) waives the requirement of a signature.

Question 89

WARRANTY

Answer 89

a promise that a proposition of fact is true.

Question 90

WARRANTY OF SPECIFICATIONS

Answer 90

the owner’s implied warranty, when providing the plans and specifications, that the plans and specifications are possible to perform, are adequate for their intended purpose, and are free from defect. Moreover, this warranty is not overcome by the usual exculpatory clauses requiring bidders to visit the site, check the plans, or generally inform themselves of the requirements of the work. The implied warranty of specification suitability has been recognized in every American jurisdiction and applied with equal force to public and private contracts. As with any contractual obligation, the warranty can be overcome by explicit contractual provisions that impose absolute liability for performance on the con-tract.

Question 91

ZONING

Answer 91

a local ordinance which governs the uses of land and the overall characteristics of the structures that may be erected; the division of a city by legislative regulation into districts and the prescription and application in each district of regulations having to do with structural and Landscape Architectural designs of buildings and of regulations pre-scribing uses for buildings within designated districts.

Question 92

INSURANCE

Answer 92

Insurance is a contract whereby one undertakes to indemnify another against loss, damage, or liability arising from an unknown or contingent event and is applicable only to some contingency or act to occur in the future. a contract whereby, for a stipulated consideration, one party undertakes to compensate the other for loss on a specified subject by specifying perils.