CE7012: Legal Obligations and Conditions of Contract Exam Sample 2023
Section A
Question 3
a) Dispute resolution mechanisms under JCT 11 Standard Building Contract
The primary characteristics concerning the most usual mate mechanism of dispute resolution have been explained in the following section:
Negotiation: This has been considered as a specific and significant procedure that deals with the work out of the parties among them regarding the way of resolving any critical problems, which is appeared. It gives the strength of settling the dispute rests through the parties.
Conciliation as well as Mediation: A specific and significant party agrees upon a self-governing natural system of the third party for the purpose of facilitating the conversation among them, including a specific and significant objective concerning meeting the vital settlement. Here, in this case, the strength for the purpose of settling stays to the hand of the party, but entire procedure has been controlled through the specific and significant mediator.
Determination of expert: Here, in this case a party confirms a contract, whether the specific and significant third party are having the capability of making a compulsory decision over the party. Thus, the specific and sensitive terms have been managed through the contract. Moreover, within majority of the scenarios it has been observed that the expert’s decision has been considered as the final one, along with that no chance of appealing against the decision is available there, which denotes that the specific and significant judgment given through the expert ultimately defines the vital dispute with no availability of further sources.
Adjudication: It has been developed during the year of 1998, which comes underneath of the section 108 concerning the HGRCA 1996, which stands for the Housing Grants, Construction and Regeneration Act 1996. Furthermore, the regional democracy, financial improvement as well as the construction act 2009 along with the modified system will rectify few characteristics regarding the specific and significant procedure of adjudication. Moreover, a major utilization of it has been shown through the industry of contraction, along with that engages not just for the purpose concerning constructing contracts but additionally for the purpose of those kinds of appointments, which are professional in nature (Gould, 2012). In addition, when the regulation engages towards a specific and significant contract, after that, the party can demand that meeting with an adjudicator for being performed in about 7 days concerning providing the dispute notice, along with that that specific and significant adjudicator is having twenty eight days concerning the date of issuing regarding the in which of issuing the decision, which will attach the party as well as mostly be eagerly enforceable within the TCC that stands for the Technology and Contraction Court, which has been considered as a section concerning the High Court as well as engages to those specific and significant kind of litigations, which are relevant with the construction.
Arbitration: In order to engage arbitration, the specific and significant contract among the particular parties need of containing a written contract with arbitrate. Whether it has been applied, the specific and significant parties are capable of choosing for refer to rather incorporating a specific and significant process of arbitration, for example the rules of CIMA or that stands for the Construction Industry Model Arbitration. On the other way, it is capable of easily being enveloped through the sensitive legislation that is applicable, for example the Arbitration Act 1996. In addition, it has been observed that, several authorities across the entire globe incorporate rules taking care of the arbitration, frequently depending on the Model Arbitration legislation called as UNCITRAL that stands for United Nations Commission on International Trade Law.
Litigation: Different courts are having natural authority for the purpose of hearing a specific and significant dispute regarding anything. In case of unavailability of such other process, the specific and significant parries could refer their respective topic towards a proper court as well (Gould, 2004). Moreover, here, in this case, the whole process has been monitored through the CPR that stands for the Civil Procedure Rules, along with the values, difficulty as well as the nature concerning that specific and sensitive dispute will decide the particular court, where that specific dispute can be heard. Moreover, three different kinds of alternatives are present there in case of the litigation, such as exit, lumping or inaction it as well as the unofficial system.
Dispute boards: Amusingly, it has been situated among the dispute resolution as well as avoidance. Its origin deals with the DRBs that stand for the Dispute Review or Recommendation Boards. Here, in this case, at the initial phase of the undertaking three different members of dispute board has been appointed, who turn into familiar regarding the undertaking through performing a proper review concerning the documentation of the undertaking along with that additionally continuously visiting to the place meanwhile the works are going on. Since as well as if a specific problem arises then they are capable of being asked in order to give their suggestions, which are non-binding in nature as well. However, in most of the cases, their valuable suggestions have been utilized for the purpose of resolving the specific and significant disputes among the multiple parties; hence neglecting those kinds of disputes, which are formal in manner.
b) Comparison and contrast between the dispute resolution mechanisms under JCT11 SBC and NEC3 ECC
Within each and every structure concerning the contract; an indirect requirement is there over a specific contractor for the purpose of progressing with the tasks towards the accomplishment without getting delayed, such as within NEC3 ECC that specific and significant contractor performs the particular and vital task; thus it can be completed on the due date rather before the due date. On the other hand, within the JCT11 SBC the contractor has the need of proceeding diligently as well as regularly with the works as well as accomplishing that. Furthermore, in case of dispute the specific and significant clauses stay with the force, thus that specific contractor needs of proceeding industriously with the specific and significant tasks (Dan, 2020). In addition, it has been replicated towards an effective standard within the NEC Clause W2 Dispute Resolution Procedure that defines that during those kinds of cases whether the adjudication has been implemented, until as well as unless the adjudicator has informed the different but significant parties regarding her or his specific and sensitive decision, the supervisor, the administrator of the project along with the parties progress as if the disputed matter was not disputed.
On the other hand, when an uncertainty takes place regarding the way through which the task are progressing cause of the ambiguity, then it needs of being illuminated earlier through the developer’s guidance. Moreover, in case of the JCT11 SBC and NEC3 ECC, both of them suites specific and significant clauses, such as the JCT11 SBC entail Litigation (Article 9)76, Arbitration (Article 8 and Clause 9.4), Adjudication (Article 7 and Clause 9.2), along with the Mediation (Clause 9.1); on the other hand the NEC3 ECC entail Adjudication (Clause W1) along with the Tribunal (W 1.4) (Ogbu, 2017). Moreover, it has been also observed that the specific and significant philosophy followed during NEC3 ECC contract has much difference from the others. Whether the JCT11 SBC contracts are basically tended to be evenly balanced as well as fair with the different parties, at the same moment, in contrary, in the case of NEC3 ECC all of the contractors incorporates a bunch regarding the major clauses, which engage as well as supplemented for all time through a specific and significant sequence concerning the specific and significant core options, which is relevant with the payment, options of dispute resolution along with the secondary options as well, which can be relate with the late damages, promises as well as the bonds too. However, this is how the dispute resolution mechanism can be stated as different under the NEC3 ECC as well as the JCT11 SBC.
References
Dan, B., 2020. Dispute Resolution In Construction – An Overview | C-Link. [online] C-link.com. Available at: <https://c-link.com/blog/dispute-resolution-in-construction/> [Accessed 26 May 2020].
Gould, N., 2004. DISPUTE RESOLUTION IN THE CONSTRUCTION INDUSTRY: AN OVERVIEW. [online] Fenwickelliott.com. Available at: <https://www.fenwickelliott.com/sites/default/files/ADR%201%20-%20Dispute%20Resolution%20In%20The%20Construction%20Industry.pdf> [Accessed 26 May 2020].
Gould, N., 2012. Conflict Avoidance And Dispute Resolution In Construction. [online] Rics.org. Available at: <https://www.rics.org/globalassets/rics-website/media/upholding-professional-standards/sector-standards/construction/black-book/conflict-avoidance-and-dispute-resolution-in-construction-1st-edition-rics.pdf> [Accessed 26 May 2020].
Ogbu, C., 2017. DISPUTE RESOLUTION APPROACHES IN CONSTRUCTION CONTRACTS.
Section B:
Question 4:
- Contract
Bert had decided to construct a house, and was approached by three people who were Adam, Chas, and Den. The details of the contract, and the factors that impacts its existence and elevate age included in this discussion part. There were three different scenarios that were closely analyzed to find how the contract terms and conditions were implied on the parties.
- Adam
Adam called Bert and stated that he would accomplish the job and charged him $50,000 which was not accepted by Bert. The second quote was for 45000 and Bert had stated that he would think about it and was considering to reject the proposal the second day. As per the contract law there was a negation conducted between both the parties, however there was a disagreement in terms of the costs to which Bert had decided to reject the next day.
As per the contract act, there existed no agreement between both the parties as a proposal was given by one of the parties and it was not accepted by the other, and thus there were o consideration in this part. The consideration in this part were the cost and the time needed for the completion of the work, and Bert was not comfortable with the price that was quoted and thus were no agreement either, implied or verbal.
- Chas
On 6th May Bert received a proposal from Chas to finish the work at the cost of 40,000 pounds, and this finely fitted into the deal that was needed by Bert. The price was agreed and thus Bert agreed to the contract verbally, and there existed a deal between both the parties. However at the later stage the deal was rejected by Chas and this it was not executed. In order to the contract to be expected it is necessary for both the parties to agree to the terms and conditions and give a positive approval. This is an example of the unilateral contract, where one of the parties had agreed to execute the contract, however at the later stage had disagreed to the fact. As it was not accepted, the contract and its terms and conditions became null and avoid, and this was makes it no contract execution. Here Chas had communicated about his inability to do the work and this was accepted by Bert.
- Den
On May 7th den had agreed to do the work for 42000 and specified the date when the task would be staged and completed. This consideration was highly accepted by Bert and he had agreed to the completion of the work. However, Bert allied den and asked him if the task could be completed by June 25th and for this Den had not given any assurances. However the other terms and conditions were highly accepted by Bert and this stated that there existed an implied contract between both the parties.
Here the terms and conditions for the contract were discussed and the areas that were not supposed to be accepted where also discussed between both the parties. There was a detailed discussion that was conducted between both the parties to complete the project within a specific period of time. This was verbally agreed and thus it indicated that the project was supposed to be complemented by Den. In a contract execution it is necessary to have the clear purpose, the consideration, and the factors that were supposed to be agreed or disagreed between both the parties. In this case there existed all the three factors that were necessary for properly and accurately conducting the tasks and thus the contract were verbally agreed between the parties.
- Agreement
As per the legal procedure, the term agreement means that the agreement of the terms and conditions between two different parties who are willing to do or conduct a similar work. The agreement clearly defines the rights, privileges, and duties of the parties who are involved in the agreement conduct. An agreement however it is not a contract, as there are no legal obligations that are entered into between both the parties. It is necessary to outline the terms and conditions that were agreed and not agreed between both the parties, and this forms the important part of the agreement which is entered into between the parties.
- Entitlement to pay
Zak had a land and on this he had decided to build a block of flats, and thus had received tenders. Callum had agreed to the tender and stated that the tender documents were £5M. The works mentioned on the tender agreement were carried out by Callum, and the needs and requirements of Zak. During this period, both the parties were still negotiating on the terms and conditions of the tender agreement, and there were some disagreement that was experienced by both of them. This had become a major issue, as the parties had a difference in the task conduct, and in dealing with the agreement facts.
Due to this, Callum carried out the tasks and later from July 1st had disagreed to contrary with the work, as there were major differences between both the parties. As a result Callum had discontinued to work, and stopped the task. In this case, he is entitled to be paid for the actual tasks that were carried out by him in needs of Zak. It is necessary for both the parties to enter into an agreement that would state how the payment for the task conducted would be paid, and the benefits associated with the same would be shared. It is recommended to pay Callus on the pro-rata basis, where the actual task completed would be properly and accurately paid off b the party (Knapp, et al., 2012).
In this case, the amount of the works that were completed and the cost associated with the same has to be decided, as this would help in making the payment for the task completed. The costs has to be calculated in terms of the total works or the part of the tasks that were conducted or carried out by the parties, and in deciding own the charges would be imposed on both the parties. This cost had to be properly and effectively decided as the parties would be able to successfully meet the needs of the final agreement between the members involved in the discussion.
- How will the answer differ if the agreement was accepted
Both the parties were negotiating for the deal and were supposed to reach to an agreement by July 1st. However due to certain reasons this could not become possible and both the parties had a higher defenses between both of them. In case the parties had agreed to the terms and conditions, the tasks would have been completed on time and the payment terms and conditions would have been conducted in the manner it was agreed between them. In case there was an increase or decrease in the payment due to the excessive work would also have been included in the patent terms which were an important part of the terms and conditions agreement process (Bix, 2012).
It was necessary for the parties to outline the terms and conditions of the agreement and ensure that the overall process was properly followed and the payments for the same would be agreed in the right manner. In case the agreement was carried and the terms and conditions were completely agreed between both the parties, then the work would have been carried out in the stated manner, and there would have been no differences or delays in the task conduct, which was the key aspect that was needed for properly executing the tasks.
On the agreement, Zak would have to make the payment for the contract in the agreed manner and highlight the changes that were necessary for the conduct of the works. It is nicest to state how the tasks would be conducted, and to highlight the terms and conditions that were associated with the tender agreement, add this had to be followed in accordance to the contract law.
References
Bix, Brian (2012). Contract Law: Rules, Theory, and Context. Cambridge University Press. pp. 44–45.
Enright, Máiréad (2007). Principles of Irish Contract Law. Clarus Press.
Knapp, Charles; Crystal, Nathan; Prince, Harry (2007). Problems in Contract Law: Cases and Materials (4th ed.). Aspen Publishers/Wolters Kluwer Law & Business. p. 659.
Question 5:
- Dave
In this part of the answer the tort liability is being discussed in respect to two cases, where the individual causing the damages intentionally or unintentionally has to pay the compensation to the others. In some of the cases, the liability arises on the third parties who are involved in the deal. This law is also called as the vicarious liability, where as per the laws one of the parties involved in the discussion are liable directly for the default of the other one. In this case, the Dave’s liability to pay the tort is being examined and properly presented in the report.
- Ali
Dave had purchased an old derelict house and he has later decided to demolish it. A sign board of “danger-keep out” was posted outside the windows and the doors so that it could be noticed by the people. The intention was to keep away the local youths to play in that area and get involved in any accident of any sort. This was the overall intention of playing the board and to create awareness amongst the people. Despite of this bard, Ali a small guy of 13 years had got into the house and smashed the board and played football there. While playing he feel on the floor and suffered from serious cuts (Currie, S., & Cameron, 2000).
In this case, Dave cannot be held responsible for the tort liability as he had placed the danger sign board outside the house and it was in fact smashed by Ali, who went ahead to play football and injured himself. As per the tort law, it is necessary to check how the precautionary measures were taken and implemented by the individual and the necessary measures to keep away people from meeting any accident was carried out. There was no scope of negligence in this case as Dave had taken the necessary measures to keep the people away from visiting the premises. Despite of this fact, Ali played the game and caused an injury to himself. In this case, Dave wouldn’t be held resemble for the accident that was meet by the individual while playing in the premises. Thus the tort of negligence couldn’t be implied in this case.
- Harry
Harry was an independent contractor who was hired for the conduct of the demolition work at the building. While doing the works of dismantling the wooden staircase, Harry feel down and suffered serious injury. In this case Dave had not mentioned the details about the risk with the contractor which was the key requirement for the securing the life of the contractors or people who were involved in the task or the works. As per the tort liability law, the intention of the party who is being sued for the tort is closely examined and the reason to avoid such an incidence in the present or future is determined. The victim couldn’t be held responsible for the incidence either implicitly or explicitly manner for a simple fact that they were involved in the risk based activity.
In this ace, it is necessary to determine the nature of the incidence and to find the exact process or method that could have been followed to avoid the situation. While getting involved in the risk based activities, it is the responsibility of the member to highlight the types of risks that could avert the accident at the workplace. This was not done by Dave and due to which the accident had occurred. As per the law it is the moral responsibility of Dave to pay off the liabilities in a prescribed manner as he had failed to create an awareness f the severity of the situation.
- Rob
The law of tort is being examined from the negligence and comparative negligence that was caused either with an intention or without any intention. In this case, any individual causing any sort of harm due to the negligence or improper actions are included in the analysis of the tort of liability. The intensity of the accident is determined through the level of damages that was caused due to the incident. The mistake of plaintiff is being examined and the relevant changes and measures are introduced to control the same in an accurate manner. In the comparative negligence process the intention of the accident and the necessary measures taken to deal with the situation is being examined (David, 2009).
- Robs possible liability
Rob had a farm, and had purchased several barrels of poison to the rats that existed in the farm. He had placed the barrels safely in the shed close to his neighbors place. Rob had taken the necessary steps and measures to ensure that the poison didn’t leak and cause any harm to the people or animals closely by. Despite of taking the necessary measures, the posing leaded from the barrels and destroyed some of the important plants that were owned by Jane, the neighbor. In this case, Rob would be directly helped reasonable for the act that was done by him. Although he had taken the necessary types and measures to secure the land and the neighbors the poison leaked and caused damages to the land nearby and the plants (Andrew, 2006).
This was an unintentional act, however the severity of the incidence could have being more serious and uncontrollable. It was the moral responsibility of Rob to place the barrels of the poison in a safe place, and it should have been not under the reach of the people or animals. This was not done, and this to states that the plaintiff had acted recklessly and caused a damage to the people and the land close by. It was necessary to follow the right protocol that would have helped in dealing with the issues and in securing the lives of the people and the plants that were excuse to the barrel.
As a defense mechanism it was necessity to place the barrel at a place that would have caused no damage to the people or others. It couldn’t be said that the plaintiff was involved in the worn doing, as he didn’t intend to. However he had impurely and inaccuracy followed the protocol to secure the barrels from leakage and this cause a serious damage to the plant that was owned by Jane. In this case, Jane had the right to claim for the compensation for the losses suffered due to the improper and inaccurate steps and measures taken by Rob.
The nature of the incidences could have been more serious in case the right steps were not taken, and thus it was necessary to be liable for the act that was done by him. As per the tort liability the member would be directly and majorly responsible for the improper act that were done and that caused a serious injury or damage to the people and properly.
References
Andrew, Gray (2006). “Drowning in a Sea of Confusion: Applying the Economic Loss Doctrine to Component Parts, Service Contracts, and Fraud”. Washington University Law Review. 84 (6). ISSN 2166-7993
Currie, S., & Cameron, D. (2000), “Your Law”, Nelson Thomson Learning, Melbourne, p. 225
David Ibbetson, “Tort: English Common Law”, in The Oxford International Encyclopedia of Legal History, vol. 5 (Oxford: Oxford UP, 2009), 467.
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