Engineering Law PDF

ENGINEERING LAW Dr O. O. ADEJUWON  What does Engineering have to do with Law of Contract Law creates rights and obligations The engineer may be compelled to enforce his rights against others. For example collect his fees when due He may also be required to fulfill some obligations...

ENGINEERING LAW Dr O. O. ADEJUWON  What does Engineering have to do with Law of Contract Law creates rights and obligations The engineer may be compelled to enforce his rights against others. For example collect his fees when due He may also be required to fulfill some obligations to others. E.g., render some services, pay employees etc,  Points of contact with the Law 1. Engineering is a profession Engineering is a profession which is regulated by law The Council for the Regulation of Engineering in Nigeria (COREN) is a Federal Government body established and empowered by law (Engineers Registration Act, CAP E11 of 2004) The council regulates the practice of the engineering profession, determines who can become an engineer and controls the professional conduct of members  Points of Contact An engineer provides certain services to the society and must be capable of the skills and competence of an engineer to provide certain services His incompetence may be tantamount to a misrepresentation of the skill and consequent breach of contract There may also be contraventions to the Act governing the registration of engineers  Points of contact with the Law Engineers are bound to abide by the professional codes and ethics governing the performance of their profession This creates a network of legal relationships between practitioners and members of the public Unprofessional conduct by engineers may warrant disciplinary action according to the statutes of the bodies establishing the engineering profession  Points of Contact 2. The Law of Tort – A tort is an act of omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts may impose a liability For example, an engineer makes a machine with design defects that are injurious to machinists or does not work as promised An engineer may cause property damage to a third party while performing his duties An engineer may fail to fulfill his legal obligations to employees  WHAT IS A CONTRACT A contract is a set of rules governing the relationship, content and validity of an agreement between two or more persons regarding the sale of goods, provision of services or exchange of interest or ownership (Alobo, 2016) A contract is an agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law – Robinet Nigeria ltd v Shell Nig. Gas Ltd – Court of Appeal  CONTRACT A contract is a legally binding agreement between two or more parties by which rights are acquired by one party in return for acts or forbearances on the part of the other – King Nig. Ltd v B. H. Nig. Ltd – Nigeria Supreme Court An agreement between two or more persons which creates an obligation to do or not to do a particular thing – Bilante Int’l Ltd v NDIC – Supreme Court For a contract to be binding, there must be a Consensus Ad Idem – Meeting of Minds on the rights and obligations of each party, the subject matter, consideration, intention to create legal relations and capacity of each party to contract Social and domestic agreements can not be enforced by law.  Essentials of a Valid Contract 1. Offer and Acceptance 2. Consideration 3. Intention to create legal relations 4. Capacity to contract 5. Free Consent  Offer There must be a lawful offer by a party and a lawful acceptance by the other An offer is a statement of willingness to enter into a bargain It is made with an intention that it is binding once accepted by the person(s) to whom it is addressed. The offeror is bound to the terms of the offer once it is accepted by the other party An offer must be precise, unequivocal, leaving no room for conjecture or speculation as to the content of the mind of the referee  Offer An offer can be addressed to a person, a specified group of persons or to the world at large Calill v Carbolic Smoke Ball Co – the firm advertised use of carbolic smoke ball prevent flu and promised a £100 to anyone who used the medicine and still contracted flu When Carlill sued, when the drug did not work as promised, the court ruled that the company made a valid offer and was bound to pay In Olaopa v OAU ife, the University invited the plaintiff to a meeting where he was briefed to design how best to develop a piece of land. Before a contract was drawn up, the plaintiff made the design and demanded payment. The court held that there was no contract between the parties as not offer was made  Acceptance Acceptance is a final and unqualified expression of the terms of an offer The acceptance must match exactly the offer and all terms must be accepted There must be no conditions attached to the acceptance of the offer If there is a time limit, the acceptance must be within the stipulated time. Acceptance may be made orally and/or in writing depending on the terms and conditions of the offer  Acceptance In Felthouse v Bindley, it was held that acceptance of an offer must be expressly communicated. In Carlill vs Carbolic Smoke Ball Company, the act of using the smoke ball as recommended by the offer constituted acceptance of the offer In Hyde v Wrench, the defendant offered to sell his estate for £1000. Plaintiff offered to pay £950. Defendant refused to sell. Plaintiff agreed to original offer and defendant refused. Plaintiff sued for specific performance. Court held that the offer to pay £950 rejected the original offer and was not able to revive the original offer by changing his mind In Maj. Gen. George Innih v Ors Ferado Agro, the request to extend period of payment by 3 weeks constituted a rejection of the offer  Acceptance Termination of offer Revocation before the offer is accepted Rejection of the offer Lapse of time. If not stipulated offer may expire within a reasonable time. E.g., for perishable or seasonal goods Death of offeror or offeree  Consideration An agreement is binding only if both parties to it gains something. That is, the parties give something and gets something in return An agreement to do something for nothing is not enforceable in court of law The something given or received is called consideration It is not necessary that what is exchanged must be of equal value It is however necessary that what is exchanged must be of value in the eyes of the law  Consideration Consideration may consist of some right, interest, profit or benefit accruing to one party or some detriment, loss or responsibility given, suffered or undertaken by the other Consideration may be something of value, which must be given and accordingly, consideration is either some detriment to the promisee or some benefit to the promisor or vice versa A contract in which the doctrine of consideration has not been met can be said to have been breached and unenforceable.  Consideration Rules of consideration a) Consideration must be sufficient in the eyes of the law. However, it is not the business of the court to determine adequate consideration. This is up to the bargaining power of the parties to the agreement If Mr Ojo a structural engineer decides to charge Mrs Eze N10,000 for a structural plan, it is not in the place of the court to determine if N10,000 is suitable consideration  Consideration b) Consideration must be something of value in the eyes of the law. It must be exactly what is demanded by the other party c) Consideration must move from promisee. It is only the party (promisee) who has acted on the promise of the promisor that can bring action against the promisor. In other words, only a party to a contract can legally enforce it  Consideration d) Consideration must not be past When the act is performed before the promise is made. For example, if A fixes B’s abandoned car and B happy that his car is functional promises to pay A N20,000 for his services. B’s promise is not binding as there was no meeting of minds. e) Consideration must not be in the nature of the performance of an existing duty. For example, a police man cannot be paid for the recovery of stolen property An employee cannot be paid for work for which he is already under a contractual agreement to perform  Intention to Create a Legal Relationship There must be an intention that the agreement will create legal relations and be recognized by law The following elements must exist; an an offer, acceptance, consideration and intention to create a legal relationship This is what makes contracts different from domestic or social agreements  Intention to Create a Legal Relationship Domestic and social agreements are based on feelings of allegiance, social bonds and good faith rather than legal relations Arrangements between husband and wife, parent and child lack force because they do not intend them to have legal consequences In Balfour v Balfour, an arrangement by a husband to pay his wife £30 a month was held not to be an intention to create legal relations  Intention to Create a Legal Relationship Exemptions to social arrangements Agreements between spouses to enter into the acquisition of real property Lack of peace, friendship and cordiality between spouses Where a party will suffer detriment  Intention to Create a Legal Relationship Exemptions in commercial agreements Where the parties state expressly that the arrangement is to be devoid of a legal relationship and not enforceable in a court of law Collective agreements between employer and employee Car Pool arrangements  Capacity of the Parties The parties to a contract must be legally capable to enter into the agreement otherwise it cannot be enforced in a court of law This may be due to incompetence or in law or have a limited capacity for contractual relations; For example, minors, lunatics, illiterates and intoxicated persons  Free Consent In order to be enforceable, an agreement must be based on the free consent of all parties A contract is null and void if the agreement is induced by coercion, undue influence, mistake, misrepresentation and fraud  TYPES OF CONTRACT 1. Formal Contract ( contract under seal) A formal contract is a written or printed set of promises on paper. It is conclusive when written, signed and delivered. It is usually executed in a particular form This type of contract can be enforced without the existence or necessity of a consideration A wax seal may be affixed to the document but the critical component in modern times is that it must be signed.  TYPES OF CONTRACT 2. Simple contract This can be written and/or oral. The basic elements of offer and acceptance must however be present It is however wise to have a contract in writing 3. Bilateral contract This is an agreement entered into by two parties who exchange a mutual and reciprocal promise that involves the execution of an act, obligation or transaction One party offers to do something in exchange or in return for an action by another party  TYPES OF CONTRACT 4. Unilateral Contract This is a one-sided contract where one party binds himself by a promise to do something while the other is free to perform the conditions or not. However, once the other party acts on the conditions, the contract becomes binding. For example, a promise to reward anyone who finds lost bag or wallet. 5. Express contract In this type of contract, the parties state the terms and conditions of the contract by word-of-mouth or in writing at the time of making the contract. 6. Implied contract The terms and conditions are not expressly spelt out but are assumed by facts and circumstances. For example, someone takes a Lagos-bound cab from campus gate is expected to be dropped at Maryland Motor park in Lagos