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(c) Advertisement (or Notice to Contractors),
The responsibility for the preparation of the last three of these should, and usually does, rest entirely with the Engineer, and he is generally expected either to prepare portions of the others, or at least to be familiar with their contents. On work of any magnitude the contract proper should be framed entirely by the Owner's legal adviser, or be subject to his approval, while the bond is essentially a legal matter.
Where the magnitude and importance of the work warrant the extra expense involved, all of these documents, generally excepting the advertisement, are printed and bound together in pamphlet form. The best practice is tending away from the ancient and cumbersome legal cap form, bound at the top, toward a much more convenient form six or eight inches wide and nine or ten inches high, bound at the left edge like an ordinary book. This improved form, together with marginal headings, intelligent selection of type and an index, are recent innovations which make it possible for one to refer to any portion of the composite document with the minimum expenditure of time and effort.
CONTRACT AND BOND
In this Chapter are briefly discussed the essentials of a valid contract, the ways in which it is discharged, and the interrelation of contract, specifications and plans. A typical contract form is given. The significance of surety bonds is explained, and a specimen bond given for illustration.
4. Definition. - A contract is an agreement between competent persons to perform some legal act.
The subject of the law of contracts is outside the scope of this book, further than a brief discussion which will be entered into in the hope of making clear some otherwise obscure points in connection with the writing of specifications.
5. Reference Books. — While many construction contracts are drawn by engineers, the author wishes to be understood as advising the young practitioner that he proceed slowly in this direction, remembering that a little knowledge may prove to be dangerous. Next to a course in law is recommended to the student or young engineer a thorough study of some of the following standard works:
Anson, "Law of Contracts” (a book primarily for law students).
Wait, “Engineering and Architectural Jurisprudence" (for the lawyer, engineer and architect).
Tucker, “Contracts in Engineering” (for the engineering student or practicing engineer covers much beside construction work).
Beside these there are a number of standard treatises on contract law, such as Parson's, Lawson's, etc., some of them far less condensed than those mentioned above and correspondingly less satisfactory to any but the practicing lawyer.
6. Contract Essentials. - In order that a contract may be binding it is necessary:
(a) That the parties * be competent. The courts will not enforce contracts made with persons under legal age (“infants”), convicts, confirmed drunkards, insane persons and the like, or with corporations in matters in which they exceed their charter rights, or with agents when they exceed the authority delegated them by their principals, etc.
(6) That the subject matter be legal. Contracts to perform acts contrary to either common law or statute law, or opposed to public policy are not binding. Municipalities must comply with statutes defining their debt limit, or dealing with the manner in which they shall advertise or award contracts, sell bonds, etc. A compulsory arbitration clause (Art. 33), and a penalty clause (Art. 53), have been classed as opposed to public policy.
(c) That the parties have mutually agreed. Every contract springs from the acceptance of an offer. Each party must have, however, understood and assented to the offer in precisely the same sense. When it can be shown that either entered into the agreement through certain mistakes, or misrepresentation, or fraud, or duress, or undue influence, it will generally be held that as the agreement was only apparent the contract was not binding. A contract (unless for work extending over more than a year) need not be written, although it is often difficult to establish the existence or the exact terms of an oral contract.
(d) Further, unless the contract is a “sealed” one (one in which a “seal” has been affixed to the signatures), there must be a "valuable consideration.” Engineering construction contracts include valuable considerations, and in most cases need not be sealed " (unless one party is a corporation whose officers are required to use a seal). Valuable consideration is not necessarily adequate compensation, but may consist (according to an old English decision) “either in some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other.” * A legal term meaning the persons who have entered into contract
- the principals.
Distinguish between common and statute law.
7. Discharge of Contracts. — A contract may be terminated or “discharged” in a number of ways:
(a) By performance of its every detail. Strictly speaking, this rarely occurs in connection with a contract for construction work.
(6) By mutual agreement, that is, the parties may (before the terms of the contract have been fully carried out) agree, each for a consideration, that the contract shall no longer hold them. This would be called a “waiver” of the contract. Sometimes this takes the form of a new contract substituted for the old one, as in the case of substantial alteration, by common agreement, of the terms of the original contract. (See Art. 29.)
(c) By operation of the rules of law. Alterations in the document made by one party without the knowledge and consent of the other would discharge the contract, as would also the “going into bankruptcy” of either.
(d) It may become impossible. The word impossible has been rather strictly construed by the courts. A contract to repair leaks in a dam or to paint a bridge would be rendered impossible of performance in case the entire structure were wrecked and carried down stream by a freshet. (See Art. 43.)
(e) It may be broken, by either party's failing to carry out any single one or all of the stipulations which form his part of the agreement. The injured party has then the right of action, that is, he may sue for damages, or in some few instances (not affecting construction work) to compel performance. (See Art. 53.)
(a) Put in another way, a contract may be somewhat loosely defined as an agreement entered into between two competent persons, by the terms of which agreement one of them agrees to perform for the other a certain (legal) act, for which the other agrees to pay him. Some acts can be defined in very few and simple words. The act of a Contractor in constructing
even an unimportant structure is complex. In order that the act may be properly described in the contract it is necessary:
(i) That some person shall have a mental conception of the finished project (even though the conception be somewhat vague as to some of the minor details).
(ii) That from his mental conception there shall be prepared a more or less detailed design. (6) A complete design determines:
(i) The proportions and relative positions of each part.
(iii) Certain qualifications as to workmanship. 9. Plan and Specifications; Specific and General Clauses.
(a) The proportions and relative positions of each part can best be shown graphically by a drawing, called the plan. however, one should attempt to add to the plan all the necessary data as to materials and workmanship it would in most cases be found that the space was not sufficient and that the plan was obscured. This sort of information can in fact be more clearly conveyed by means of a separate document, and forms a large part of what is called the “specifications," namely the specific
" clauses therein.
The word specific is rather misleading, implying as it does that other clauses are not specific or precise. “Descriptive” or “technical” clauses would perhaps be better terms. The specific or technical clauses in the specifications describe, then, materials and workmanship, or in other words they define the work from the standpoint of the Engineer.
In the case of a steel bar, the plan would give its dimensions and its position with respect to the rest of the structure, while the specifications would prescribe the material, its manufacture, testing, etc., with perhaps some added requirements as to its fabrication and exterior finish.
The plan for a simple monolithic concrete structure would show the
* Whether all the details of the plan have been determined on at the time of the signing of the contract (as they ought to be if at all possible), or whether some must later be worked out, either by Engineer or Contractor, it is still possible to refer to those drawings which illustrate the essential features of the design as “the plan.”