Free «Selection and Preparation of Contract» Essay Sample
A contract is an obligatory agreement between two or more willing parties that is enforceable by law. There exists an agreement if there is a free consent between the parties entering in the contract. One of the parties makes a proposal that must be established by the supplementary party for it to be obligatory. The person who makes the proposal is the promisor and, on the other hand, the person accepting the proposal is the promisee. All promises forming a consideration is an agreement. The one enforceable by rule is an applicable agreement, while not enforceable is a void agreement, an agreement that is binding to one party and at the option of the other party is a voidable contract.
In this case, there are various contracts in the course of the construction because many parties in different levels are involved. To begin with, project management contract, this is the agreement between the client and the project manager; this is where they agree on the cost, time and effectiveness of the construction. Moreover, there are other subcontracts where by builders agree on the terms submitted by the client. These are such as, period contracts which the builders are owned by the contractor for the specified time, payment contracts which are; lump sum, cost plus, schedule of rates, do and charge or labour only. Mostly, the contract between the manager and builder is based on the quality of work and payment, on the other hand, the client and the manager’s contract addresses the terms, time, cost, supply of materials, designs and attachments of other contracts made in the course of the construction.
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For a contract to be valid, the objective must be legal. An objective can be unlawful if the law forbids it, it is fraudulent, and the court considers it to be immoral or against public policy. Agreements opposed to public policy can be banned by law to protect the public interests. Acts that are contrary to public policy are void. Some of the acts considered to be against the public policy include transacting with an enemy country and interfering with the administration of justice. The law of the contract is based on the doctrine of equity and substance of common law. Among its main elements are offer, acceptance, lawful consideration, capacity to contract, intention to create a legal relationship, legal formalities, lawful objects, possibility of performance, and, not expressly, the declared void.
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Normally, contracts are prepared by the client’s lawyer/barrister or just purchase copies from the ministry of lands provided they meet the demands of the client. Ensuring all contracts are signed is part of the project manager’s job. Essentially, he/she conducts the activities in the construction site, and represents builders when forwarding issues to the client and vice versa. In other words, he/she is a mediator between the proprietor and the construction workers. For this reason, the manager should assure the workers of their payment, and, on the other hand, assure the proprietor of quality work. By this, the clients should have proof of ownership documents, and financial records that proves his capability to pay the builders. Conversely, the worker should forward their certificates that prove they are certified to perform such tasks and maybe their portfolios to assess their experience in construction works.
Basically, most contracts are signed before the commencement of the construction. This is to make sure that everyone involved knows the position they hold and understand what is required of them. Additionally, the client has to safely keep the signed document as a security to agreements made. Moreover, the employees should also have a copy of their contract just in case there may be a breach of contract. The important documents to keep are such as, the contracts, receipts of materials purchased, title deed of the land under construction, assurance from lands ministry declare the land to be safe for construction, and any other document signed after commencing the construction project.
In any contract, there must be acceptance of the contract before signing or entering into a deal. This is to ensure that the parties involved agree to the terms and conditions, and are willing to adhere to them. Otherwise, this is known as a breach of contract. Once an offer has been accepted, it becomes a promise, and it is binding to both parties. For an acceptance to be legal, it must meet the following criteria: it must be made by promisor and promisee and it must be made within the timeline fixed by the promisee. Additionally, the promisee must have the intention of fulfilling the conditions. The acceptance should be made before the offer is terminated. For a written or specialty contract, the parties must sign the contract. The acceptance must be communicated, and, lastly, it must be unqualified or absolute.
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Moreover, there must be consideration whereby all parties are favored or at least they are not oppressed. Considerations could either be executory or executed. Executory consideration refers to a situation where both parties make a promise. For instance, persons with individual businesses may agree to form a partnership in the near future by making equal contributions of finance and labor (Sagar, Mead & Foster 93). Executed consideration constitutes a task performed by a plaintiff on the grounds of a promise made by the defendant. For example, a student loses a book and makes an announcement that whoever gets the book will be rewarded a specified sum of money. In case if a person finds the book, the owner of the book is bound to make clear the promise he/she had made. Considerations are bound to certain legal rules that include consideration at the request and desire of the promissory. Moreover, consideration should not be fraudulent, uncertain, ambiguous, illegal or immoral. It must be adequate and should convey the promise. Therefore, only party that has given consideration for a promise can sue their partners for breach of contract or performance. This leads to discussing the principle of privity of contract. Under privity of contract, a stranger cannot sue the other party of the agreement since he/she does not form part of the contract except for some special circumstances.
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Furthermore, the client should constantly visit the construction site, just to confirm that their instructions are followed. As much as the project manager may contribute to the design of the structure, most ideas are from the client; in other words, the manager should advise on the best way to approach each idea. It is, therefore, for this reason that a contract should create a legal relationship between the parties. This means that the contract is binding to both of the parties, and any party has the liberty to take the matter to court if the other party fails to comply with the duties in line with the initial agreement. If the terms of the contract have been formulated by both parties, it is referred to as an express declaration, and, in the absence of such terms, the pre-assumptions formulated by the state are applicable (Mead, Sagar & Bampton 116).
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In conclusion, there are procedures in following up each case. However, understanding ones responsibilities and adhering to them is the most important thing in contractual agreements. This allows satisfaction for parties involved.