Law for the Construction Industry

J.R. Lewis, Stephanie Owen

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781317888765
• Edition: 2
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Law for the Construction Industry provides a comprehensive introduction to the English legal system and basic contract law for those involved in the construction industry. It covers the level 2 module on legal studies of The CIOB's Education Framework and is officially sanctioned by The CIOB as the recognised book for that module. The book assumes no previous knowledge of English law.The second edition has been brought fully up-to-date with the latest legal changes. It explains basic contract law and gives the reader an understanding of employment and consumer law whilst placing law in the context of the construction industry throughout. Law for the Construction Industry is a core textbook for the CIOB level 2 module on legal studies, as well as BTEC HNC/D and degree courses in building and construction management.

1 The nature of law and its sources

‘To begin at the beginning’ DYLAN THOMAS/UNDER MILK WOOD

What is law?

The law

Laymen often have a jaundiced view of the law, and no wonder. To them the ‘law’ means big bills, policemen, red tape, divorce, prison and American movies. What they forget is that the more harrowing aspects should only play a small part in the life of the average man. In other respects, however, the law can creep into every nook and cranny of his life. Nearly every important occasion is affected by legal considerations, whether it is registering a birth, celebrating a coming of age, marrying, buying a house, making a will or dying. Even the builder lives his life in this manner!

The law and the builder

At work, the builder is even more beset with the need to comply with legal requirements. Before he can build, he may have to buy land by the process known as conveyancing. He may enter into a contract to build on someone else's land and will have to enter into hundreds of contracts to buy all the necessary materials. He must make sure that he has planning permission and must deposit plans which satisfy the Building Regulations. He will have to enter into contracts of employment with his workers and may negotiate with trade unions. He may operate his business as a sole trader or in partnership or may form a limited company. He must build carefully to comply with the contract specifications, the Construction Regulations, the Defective Premises Act 1974, the Health and Safety at Work etc. Act 1974 and to avoid being sued for breach of contract or negligence. He must not cause nuisances to his neighbours whilst building. He should make satisfactory insurance arrangements to cover his liability for many occurrences. He must not trespass on the neighbour's land, build beyond building lines, cause obstructions of highways nor dismiss his workers without good reason. The list is endless!

Why do we need laws?

Even in the most primitive of societies, people live their lives by rules which they create. Some things they make compulsory, others they prohibit. Such rules are imposed to make people behave in a similar way, in order to provide a harmonious way of life. For example, it is undesirable to have uncontrolled violence or theft, and ancient British tribes would have had customary rules dealing with such matters, punishing those who transgressed.

Without such rules, each person would have to make individual choices concerning his behaviour, which, whilst being perfectly logical and moral for himself, would not benefit society as a whole. For example, it is logical and much more usual to drive on the right-hand side of the road, yet it is the law of England and Wales that we drive on the left. Anyone failing to do so would cause chaos. And so it is for the bulk of our law – it is there to prevent chaos, to create an ordered way of life.

What sort of laws do we need?

Obviously, laws are needed which support popularly held ideals. Thus, in the early days of English law, people would have been most concerned with protecting themselves, their families, land and property, and the laws that developed reflected this.

As society became more complex, and people stopped manufacturing everything on their own, they began to buy and sell things, and to get others, such as builders, to work for them rather than do the work themselves. As a result of these business dealings, a large body of mercantile law developed.

Following the Industrial Revolution, the state increasingly began to take a protectionist attitude towards the people, far different from the old laissez-faire, caveat emptor approach of nineteenth-century law. Much social and consumer legislation has been passed in the twentieth century, and today there is a high level of legal control in all walks of life.

Thus, the law has to a certain extent mirrored the changes in society, getting more complex and increasing in volume as society has grown more sophisticated. Similarly, the methods of law creation have grown more complicated. What originally would have been a mere customary rule must now be created either by Parliament or by judges making decisions on the finer points of law in court cases.

Who benefits from the law?

As stated before, the law is mainly needed to benefit society as a whole, but this should not be at the cost of the individual. A fine balance must be maintained. This is so in nearly every country. However, sometimes the balance is tipped in favour of the state, as in communist countries. Even in this country, many people feel that the law is unfair to them individually.

Substantive and adjective law

The laws necessary to achieve a harmonious way of life are substantive laws, i.e. the very substance of the law itself such as a law against killing people. Such law on its own, however, would fail through lack of procedure to follow the law through to prosecution and, if necessary, punishment. Thus, adjective law, which is concerned with procedural law, court practice and rules of evidence, is needed to make substantive law actually work.

Good law and bad law

What is good law and bad law is entirely subjective. What may be good for society may be bad for the individual. What is good and what is bad? Once again, the law can only reflect society's wishes, and if society does not meet with our personal conception of right or goodness, then we dub it bad law. Nazi Germany or Idi Amin's Uganda had laws which were perfectly valid during those regimes. To change such law one needs to change the society that created it. This can be done peacefully by evolution, as in most Western states today, or forcefully, by revolution, for example, as in Iran, where a modern legal system has been replaced by traditional Islamic law.

Even with an evolutionary process such as we now have in England and Wales, we have good and bad law, depending on our particular point of view. The way we think depends on our upbringing, religion, education, politics and many other external influences. Such factors also affect one's private morals, and for that reason morality is generally not the concern of the law.

Because we are not all alike, the law will not suit everybody. It is merely the lowest common denominator which will satisfy most people's requirements of a legal system, and achieve maximum stability in the state.

The ‘law’ compared with other types of law

● The long arm of the Law

● The Law of gravity

● Criminal Law

● French Law

The word Taw’ of course, is used in other contexts, and thus it is important to define one's terms. Scientific laws, for example, are totally different from legal ones, for they describe things which must necessarily happen, such as the law of gravity. Legal laws can only lay down rules for people to follow. Whether they do or not is up to them. To encourage adherence to the rules, most have some element of coercion behind them, whether it is a threat of loss of liberty or some other right, or a financial penalty.

Every country in the world has law of some sort, and within each legal system there are many different areas covering all aspects of life. Fortunately, for the purposes of this book, we are ‘only’ going to examine English law, i.e. the law applying to England and Wales.

The composition of a legal rule

Every area of law is made up of many individual little laws. A complex example of this can be found in the law of contract, which has hundreds of thousands of legal rules.

Each legal rule consists of two parts: a right and a duty. Thus, there is a duty imposed on all people in this country - not to kill others. Conversely, everyone has a right to life, or a right not to be killed. If someone breaks this rule, or as we say breaches his duty, then the state, on behalf of the people for whom the rule was designed to protect, will punish the wrongdoer. Thus, all legal rules are rather like see-saws (see Figure 1.1).

This book is therefore concerned with many rights and duties under the law with which the builder must concern himself, and it is hoped that this introduction to the concept of law will help the reader with his studies.

English law

Legal systems in the British Isles

English law is the law of England and Wales -not of the United Kingdom, for in the United Kingdom of Great Britain and Northern Ireland there are three legal systems, Scotland and Northern Ireland having their own. The Channel Islands and the Isle of Man are merely direct dependencies of the Crown and have their own legal systems. The reason for there being no uniformity is purely historical. The Scottish legal system, for example, developed in an entirely different way with much European influence, as it was a totally separate country until the Act of Union 1707. It would be foolish to imagine that two countries would ever develop in the same way through a period which knew no other forms of communication than that provided by horse or foot. Wales, on the other hand, was conquered by the English in the thirteenth century, at a time when English law was only in its infancy. The new overlords imposed the new developing law on the Welsh, and thus the laws of Hywel Dda are now lost in the mists of antiquity.

Common law

English law is a common-law system which is also found in many other countries in the world, mostly former British colonies. The words ‘common law’ have a number of different meanings. The first is of historical significance, and is the key to understanding what our law is all about. It is probably far easier to understand modern English law, with all its peculiarities, if one first loo...

Table of contents

• Cover
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Preface to the second edition
• Preface to the first edition
• Acknowledgements
• Cases
• Statutes
• Statutory instruments
• 1 The nature of law and its sources
• 2 The administration of English law
• 3 Contract
• 4 Law of property
• 5 Pure personalty
• 6 Legal personality
• 7 The law of torts
• 8 The law relating to highways
• 9 Employment law
• 10 Safety law
• 11 Insurance
• Index