At first should select one of most suitable type of contract , we study some of them it’s in chapter 2 , I will send you my book (there are JCT form of contract ,FIDIC contract and NEC option) in each one many types. Read all the information of the project and choose one type. Then in Q1.a , should write the characteristics, personality of project and reasons to choose that type of contract. in Q1.b , characteristics of form of contract in (c) the characteristics of project which is similar to type of contract . in (d) the characteristics of project which is not similar to type of contract . Q,2 I don’t understand it well but about the clauses Q,3 how can change the clauses to make it more clear
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HIGHER COLLEGE OF TECHNOLOGY
DEPARTMENT: ENGINEERING
SECTION: CAE
Assignment
Semester: 2
A. Y.: 2018 / 2019
Date: 30 March 2019
Time: 23:59
1.
3.
5.
1.
3.
5.
Student Name
Student ID
Specialization
2.
4.
2.
4.
Quantity Surveying
Invigilator Signature
Serial No.
Level
Course Name
Course Code
Section No.
Adv. Diploma
Legal Studies
CEQS3130
INSTRUCTIONS TO STUDENTS
•
•
•
•
•
•
•
•
•
•
•
Carry out background research for all stakeholders while answering the questions.
All answers require justification and explanation.
No interviews or site visits are allowed. All necessary information is available from relevant sources.
Each submission can be by one student or a group of 2 – 5 students (maximum).
The minimum amount of content required for this assignment is 2,000 words.
Referencing the course handouts, blogs or Wikipedia is not allowed.
Only a soft-copy is required in the prescribed format along with this cover page.
Any submission in another format shall be treated as a non-submission.
Late submissions will have deduction of 0.25 marks for every working hour of the college.
All assignments shall be checked for plagiarism.
The highest marks will be awarded to assignments that show the most amount of varied research.
Question No.
Max. Marks
Q1
Q2
5
1
Sub-Total
Marks
6
Grand Total
Marks
Obtained Marks
Question No.
Max. Marks
Q3
4
Sub-Total
Marks
4
Obtained Marks
/10
First Marker :
Second Marker:
Signature:
Signature :
Date :
Date :
(NOT APPLICABLE)
Q1. Review the Palm Mall project at the link provided and select the most suitable form of contract
for this project. The answer should include a detailed justification with at least the following:
Q1.a. Project characteristics matrix.
[1]
Q1.b. Form of contract characteristics matrix.
[1]
Q1.c. The characteristics which match exactly.
[1]
Q1.d. The characteristics which not match.
[1]
Q1.e. The modifications required to the contract to take care of the mismatching characteristics. [1]
Note: The matrix can follow a similar format to the handouts but a unique approach is encouraged.
Link: http://aljarwanigroup.com/swf/palmmall/palm/palm%20mall%20profile.pdf
Q2. Review the Oman Standard Documents for Building and Civil Engineering Works (uploaded
to the e-Learning along with the assignment) and identify all clauses where the opinion and/or
satisfaction of the Engineer is required.
[1]
Q3. Suggest modifications that can be made to each of the clauses identified to increase
unambiguity.
[4]
Chapter 1: Legal Contracts
1.1 Agreement
An agreement is a meeting of minds with the understanding and acceptance of reciprocal legal rights and
duties (“agreement”, 2018). An agreement is not always synonymous with a contract because it might
lack an essential element of a contract, such as consideration. All Contracts are agreements but all
agreements are not contracts. Only those particular agreements which are enforceable at law are deemed
to
be
valid
contracts.
——————————————–
1.2 Essential Elements of a Valid Contract
All the elements mentioned in this section must be present in order to make a valid contract. If any one
of them
is
absent
the
agreement
does
not
become
a
contract
1.2.1 Offer and Acceptance: In order to create a valid contract, there must be a ‘lawful offer’ by one
party and ‘lawful acceptance’ of the same by the other party.
1.2.2 Intention to Create Legal Relationship: The parties must be willing to enter into a contract
mutually. In case, there is no such intention on the part of parties, there is no contract. Agreements of
social
or
domestic
nature
do
not
contemplate
legal
relations.
1.2.3 Lawful Consideration: According to Blackstone, “Consideration is recompense given by the party
contracting to another.” When, at the desire of the promisor, the promisee or any other person has done
or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing,
something, such act or abstinence or promise is called a consideration for the promise. ——————————————-
CEQS 3130 / Legal Studies
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1.2.4 Capacity of parties: The parties must be competent and have the ability to carry out contract. If
either of the parties does not have the capacity to contract, the contract is not valid.
The following parties do not have the capacity to enter into a contract:
a) Minors
b) Persons of unsound mind.
c) Persons disqualified by law to which they are subject.
1.2.5 Free Consent: ‘Consent’ means the parties must have agreed upon the same thing in the same
sense. An agreement should be made by the free consent of the parties. Consent is said to be free when it
is not caused by:
1.
2.
3.
4.
Coercion
Undue influence
Fraud
Misrepresentation
Coercion
Undue Influence
Coercion means compelling a person to enter Undue influence means inducing a person to
into a contract by committing or threatening enter into an agreement by moral or mental
to commit an unlawful act.
threat.
Coercion is a physical threat.
Undue influence is a moral or mental threat.
Coercion involves doing or threating to do an
illegal act.
Undue influence is to create an indirect threat.
In case of coercion not only the agreement is
voidable but also that party may be
punished.
In case of undue influence ordinarily, there is
no penal action only the agreement will be
voidable at the option of the aggrieved party.
Coercion may be exercised against party to
the agreement or a third party. It may also be Undue influence must be exercised by or
exercised by a party to the agreement or by a against the party to the contract.
third party.
For coercion no special relationship between
the parties is necessary.
For undue influence a special relationship must
be there e.g., master and servant, doctor and
patient, etc. If there is no such relationship,
then one of the parties should be in a position
to dominate the will of the other party.
In case of coercion burden of proof that
coercion was exercised is on the aggrieved
party.
In case of the undue influence burden of proof
that undue influence was not exercised will be
on the party who was in dominating position.
Table 1.1 Comparison between Coercion & Undue Influence
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Figure 1.1: Example of Undue Influence: Chinese Government Builds Highway around a House
Aspect
Meaning
Fraud
Misrepresentation
A deceptive act done intentionally by one The representation of a misstatement, made
party in order to influence the other party to innocently, which persuades other party to enter
Purpose to
enter into the contract is known as fraud.
into the contract, is known as misrepresentation.
Yes
No
deceive the
other party
Knowledge
In a fraud, the party making the representation In misrepresentation, the party making the
knows that the statement is not true.
representation believes the statement made by
him is true, which subsequently turned out as
false.
Voidable
The contract is voidable even if the truth can The contract is not voidable if the truth can be
be discovered in normal diligence.
discovered in normal diligence.
Table 1.2 Comparison between Fraud & Misrepresentation
1.2.6 Lawful Object: The object of an agreement must be valid. Object has nothing to do with
consideration. It means the purpose or design of the contract. Thus, when one hires a house for use as a
gambling house, the object of the contract is to run a gambling house.
The Object is said to be unlawful if-
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a) It is forbidden by law.
b) It is of such nature that if permitted it would defeat the provision of any law.
c) It is fraudulent.
d) It involves an injury to the person or property of any others.
e) The court regards it as immoral or opposed to public policy.
1.1.7 Certainty of Meaning: The contract itself should be clear and unambiguous. Each term and
condition of the contract should have one clear interpretation, avoiding confusion.
1.1.8 Possibility of Performance: The act itself must be physically or legally possible and should be
able to enforced by law, If the act is impossible in itself, physically or legally, if cannot be enforced at
law. For example, one cannot promise another party to find treasure by magic and call it a contract.———————————————————————
1.1.9 Not Declared to be void or Illegal: The agreement though satisfying all the conditions for a valid
contract must not have been expressly (directly, clearly) declared void by any law in force in the
country. ———————————————————————
1.1.10 Legal Formalities: The act of documentation of a contract for future reference. An oral contract
is a perfectly valid contract, except in those cases where writing, registration etc. is required by law.
Writing is required in cases of sale, mortgage, lease and gift of immovable property, negotiable
instruments; memorandum and articles of association of a company, etc. (“ESSENTIAL ELEMENTS
OF A VALID CONTRACT”, 2018)
1.3 Proposal or Offer
An offer or proposal is the starting point in the formation of a contract. It is defined as, “when one
person signifies to other his willingness to do or abstain from doing anything with a view to obtaining
the assent of that other to such act or abstinence.” The word proposal is synonymous with the English
word ‘offer’. The person making the proposal is called the proposer or offeror and the person to whom
the proposal is made is called the offeree.
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1.3.1 Classifications of Offer
Offers or proposals may be classified on the basis of:
1.3.1.1 How an offer is made: An offer may be either express or implied from the contract of the
parties. An express offer is one may be made by words spoken or written such as letter, telegram, telex,
fax messages, e-mail or through internet. An implied offer is one which may be gathered from the
conduct of the party or the circumstances of the case.
1.3.1.2. To whom an offer is made: An offer may be made to
(a) A particular person,
(b) A particular group or body of persons,
(c) The public at large i.e. the whole world.
An offer made to a defined person or body of persons is called specific offer. A specific offer can
usually be accepted by the person or persons to whom it is made. On the other hand, when an offer is
addressed to the whole world, it is called a general offer.
1.3.2 Essential Elements of a Valid Offer
1.3.2.1 Offer must be capable of creating legal relations. The offeror must intend the creation
of legal relations. He must intend that if his offer is accepted a legally binding agreement shall result.
1.3.2.2 Offer must be certain, define and not vague. No contract can come into existence if
the terms of the offer are vague or loose and indefinite.
1.3.2.3 Offer must be communicated to the offeree. There can be no offer by a person to
himself. It must always be communicated to the offeree. If there is no communication of an offer, there
is no acceptance resulting in the contract.
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1.3.2.4 Offer must be made with a view to obtaining the assent of the other party. An
offer must be distinguished from mere expression of intention.
1.3.2.5. An offer may be conditional. An offer can be made subject to a condition. An offer in
that case can be accepted only subject to that condition. A conditional offer lapses when the condition is
not accepted.
1.3.2.6 Offer should not contain a non-compliance condition. There should not be a term the
non-compliance of which would amount to acceptance. One cannot say while making the offer if the
offer is not accepted before a certain date, it will be presumed to have been accepted.
Note: An invitation to offer is not an offer. An offer must be distinguished from an invitation to offer. In
the case of an “invitation to offer” the aim is merely to circulate information of readiness to negotiate
business with anybody who on such information comes to the person sending it. Such invitations are not
offer in the eyes of law and do not become promises on acceptance. (“SRD Law Notes”, 2018)
1.3.3 Modes of Revocation of Offer
1.3.3.1 By notice of revocation: An Offer may be revoked by a communication of a notice of
revocation by the offeror to the other party before acceptance is complete. An offer made in writing may
be revoked by words of mouth. The notice of revocation may not always be express. A notice of
revocation
to
be
effective
must
be
communicated
to
the
offeree.
1.3.3.2 By lapse of time: A proposal will come to an end by the lapse of time prescribed in such
proposal for its acceptance or, if no time is so prescribed by the lapse of time of reasonable time is a
question of fact depending upon the circumstances of each case. Where the subject matter of the contract
is an article, like gold, the parties of which fluctuate daily in the market, a very short period will be
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as
reasonable.
1.3.3.3 By non-fulfillment of condition precedent: A proposal is revoked when the acceptor
fails to fulfill a condition precedent to the acceptance of the proposal which was conditional offer.
1.3.3.4 By death or insanity: A proposal is revoked by the death or insanity of the proposer if the
fact of his death or insanity comes to the knowledge of the acceptor before acceptance.
1.3.3.5 By counter offer: An offer comes to end when the offeree makes a counter offer or rejects
the offer. When an offer is accepted with some modification in the terms of the offer, or with some other
condition not forming part of the initial offer, such qualified acceptance amount to a counter offer.
1.3.3.6 By the non-acceptance of the offer according to the prescribed or usual mode:
The offer will also stand revoked if it has not been accepted according to the prescribed.
1.3.3.7 By subsequent illegality: An offer lapses if it becomes illegal after it is made and before it
is accepted. (“Revocation of an Offer”, 2018)
1.4 Acceptance
When the person to whom the proposal is made signifies his assent, it is an acceptance of the proposal.
An acceptance proposal is called a promise or an agreement. Acceptance may be express or implied.
When acceptance is made by words, spoken or written, it is an express acceptance. If it is accepted by
conduct, it is an implied acceptance. Thus where a person boards a train or bus, he impliedly accepts to
pay the usual fare. An offer can be accepted only by the person to whom the offer is made. It cannot be
accepted by another person without the consent of the person making it.
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1.4.1 Essential Elements of a Valid Acceptance
1.4.1.1 Acceptance must be absolute and unconditional: Accepting an offer with conditions,
variations and reservations amounts to counter offer and rejection of the original offer. The accepter
must comply with the terms of the offer. A variations or alteration, however, small of the offer, will
make the acceptance invalid.
1.4.1.2 Acceptance must be communicated to the offeror: If the offeror remains silent and
does nothing to show that he has accepted the offer, no contract is formed. The acceptor should do
something to signify his intention to accept. Thus, where a person accepts an offer but fails to post the
letter of acceptance, it is no acceptance.
1.4.1.3. Acceptance must be within a reasonable time: Acceptance to be valid must be made
within the time allowed by the offeror and if no time is specified, it must be made within a reasonable
time.
1.4.1.4 It must be according to the mode prescribed or usual or reasonable mode:
Acceptance has to be made in the manner prescribed, the proper may within a reasonable time after the
acceptance is communicated to him, insist that the acceptance must be made in the manner prescribed.
Failure on the part of the offeror to do so will imply that he has accepted the acceptance although it is
not in the desired manner.
1.4.1.5 The acceptor must be aware of the proposal at the time of the offer: Acceptance
follows offer. It the acceptor is not aware of the existence of the offer and conveys his acceptance, no
contract comes into being.
1.4.1.6 Acceptance must be given before the offer lapses or before the offer is
revoked: It means that acceptance must be made within the offer is in force i.e. before the offer has
been revoked or offer has lapsed.
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1.4.1.7 Acceptance cannot be implied from silence: No contract is formed if the offeree
remains silent and does nothing to show that he has accepted the offer. Generally speaking the person to
whom the proposal is made need not reply. His silence cannot be regarded as an acceptance of the
proposal. Proposal made to another cannot ripen into an agreement merely because the offeree makes
no reply even through the proposal states that silence will be taken to amount to acceptance.
Acceptance of a proposal may be sometimes be inferred from silence or inaction such as in the
following situations:
1) Where the offeree having the opportunity to reject the offered goods or services takes the
benefits of them, it will amount to acceptance.
2) Where because of previous dealings the offeree has given the proposer reason to understand that
the silence was intended by the offeree as a manifestation of assent and the offeror understands it
completely. (SRDLAWNOTES, 2018)
1.5 Consideration
Consideration is the foundation of every contract. The law enforces only those promises which are made
for consideration. Where one party promises to do something, it must get something in return. This
‘something in return’ is called consideration. In the absence of consideration or undertaking is purely
gratuitous. However sacred and binding in honor, it creates no legal obligation.
1.5.1 Essential Elements of a Valid Consideration
1.5.1.1 Consideration must move at desire of the promiser: An act or abstinence must have
been done at the desire of the promisor only. Any act performed at the desire of a third party cannot be
valid consideration.
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1.5.1.2 Consideration may be past, present or future:
a) Past Consideration: A consideration for the act done in past is a past consideration.
b) Present Consideration: When both the parties are ready to move consideration at the same time,
it is a present consideration.
c) Future Consideration:-When a party promises to or abstains from doing something in the future,
it is a future consideration.
1.5.1.3 Consideration does need not to be adequate: Law only requires the presence of
consideration in a valid contract and does not differentiate between the quality and the quantity.
1.5.1.4 Consideration must be real: Consideration is something which must be of some value in
the eyes of law, though need not be adequate. It should not be uncertain, illusory or impossible.
1.5.1.5 Consideration must be lawful: In valid contract it is necessary that the consideration
should be lawful, otherwise it will become void and unenforceable. (SRD LAWNOTES, 2018)
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