1a. week 1 definition)

8/3/2019 1a. Week 1 Definition)

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Phrase from the Al Quran

To every people We have appointed rites

and ceremonies which they must follow: let

then not then dispute with you on the

matter, but you do invite (them) to yourLord: for you are assuredly on the Right

Way.If they wrangle with you. Say, Allah

knows best what it is you are doing.Allah

will judge between you on the Day ofJudgment concerning matters in which you

differ(Surah Hajj22:67-69)


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The Story Board

PART1: WEEK 1

DEFINITION OF LAW & PRACTICE :CONSTRUCTION LAW

PART 2: WEEK 2 ARCHITECTS ACT & RULE

TYPES OF PROFESSIONALPRACTICE AND CODE OF

ETHICS

BUILDING TEAM


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PART1: WEEK 1

DEFINITION OF LAW & PRACTICE

: CONSTRUCTION LAWWHAT IS LAW?

WHAT IS CONSTRUCTION LAW?


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DEFINITION OF LAW &

PRACTICE

What is construction law and

practice?

Singh H (2002)pg 23, states that

Technology in practice cannot bedivorce from the law. The law is the

enabling mechanisms to provide for

the management and the regulation of

the relationship between the parties toa technological endeavor.


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DEFINITION OF LAW &

PRACTICEThe word Law means differently to differentaspects and circumstances

To Curzon (Dictionary of Law), Law means thewritten and unwritten body of rules largely

derived from custom and formal enactmentwhich are recognised as binding among thosepersons who constitute a community or state, sothat they will be imposed upon and enforcedamong those persons by appropriate sanctions

John Austin ( The Province of IndependenceDetermined) explains Law as ..a command setby superior being to an inferior being andenforced by sanctions (punishment)..


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DEFINITION OF LAW &

PRACTICE

In Summary Law

Is a body of rules or commands set by a

superior being (i.e. State/Government) to

govern an inferior being ( I.e. anindividual);

can be written or unwritten form;

are essentially custom and legislation;

Binding on members of the community orstate; and

Enforcement through appropriate

sanctions I.e. fines, imprisonment etc


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DEFINITION OF LAW &

PRACT

ICEArticle 160(2) of the Federal Constitutions:LawInclude

Written law, the common law in so far as it is in

operation in the federation or any part there of andany custom or usage having the force of law in thefederation or any part thereof.

Law is a necessary element that bind a community

or society into a cohesive, workable entity whererights and obligations are respected. It is neither acreation of the intellect nor an unalterable fact ofnature.it is constantly changing system of rulesfashioned through constant interaction of society

and needs over the dimension of time.


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DEFINITION OF LAW

& PRACTICE

In essence:

Law is a principle;Law is conceived

Law is a rule of duty


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DEFINITION OF LAW &

PRACTICE

ForLaw to prevail:

The regular law of the land must predominateover and exclude the arbitrary exercise ofpower by the government. In its enforcement ,

all citizens should be subject equally to the lawadministered by the ordinary courts of the landand the law must be derived from individualsrights as declared by the said courts.

Hence, the LAW mandates acts or behaviourthat are lawful, must be warranted or authorisedby, or not contrary to, nor forbidden by the Law.


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DEFINITION OF LAW

& PRACTICE

Categorization of LAW

General

Substantiate and Procedural LawWritten and Unwritten Law

Public, Private and International Law


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CATEGORIES OF LAW

Categories of LawCategories of Law

Per SourcesPer SourcesPer ContentPer Content

Substantive

Law

Substantive

Law

Procedural

Law

Procedural

Law

Written LawWritten Law Unwritten LawUnwritten Law

Per EnforcementPer Enforcement

Public

Law

Public

Law

Private

Law

Private

Law

International

Law

International

LawDefine rights andDuties

Stipulatessanctions

Define rights andDuties

Stipulatessanctions

Lays down rules toset process of law in

motion eg.Arbitration

Lays down rules toset process of law in

motion eg.Arbitration

ConstitutionLegislationConstitutionLegislation

Customary Law

Case Law/ Judicial decision

Common Law/Equitable Principles

Customary Law

Case Law/ Judicial decision

Common Law/Equitable Principles

Singh.H (2002)


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CLASSIFICATION OF LAW

Singh.H (2002)

Classification of LawClassification of Law

NatureNature

PublicPublic PrivatePrivate

NatureNatureDirectlyconnectedwith affairs ofthe State

Directlyconnectedwith affairs ofthe State

Deals with therelationshipbetween

individualsThe rights andduties ofprivatecitizens

Deals with therelationshipbetween

individualsThe rights andduties ofprivatecitizens

Constitutional

Law

Constitutional

Law

Administrative

Law

Administrative

Law

Criminal

Law

Criminal

Law

TypesTypes

International LawInternational LawPublic LawPublic Law Private LawPrivate Law

ExamplesExamplesExamplesExamples

Law of Contract Law of PropertyLaw of Property Law of TortLaw of Tort Commercial LawCommercial Law


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Local

Foreign

Local

Foreign

SOURCES OF MALAYSIAN LAWSingh.H (2002)

Sources of Malaysian LawSources of Malaysian Law

Legal SourcesLegal Sources Sources of

Reference

Sources of

Reference

Historical SourcesHistorical Sources

Written

Law

Written

Law

Unwritten

Law

Unwritten

Law

Syariah

Law

Syariah

Law

Judicial decisionsApplicable EnglishLawCustomary Law

Judicial decisionsApplicable EnglishLawCustomary Law

ConstitutionLegislationSubsidiary/DelegatedLegislation

ConstitutionLegislationSubsidiary/DelegatedLegislation

StatutesStatutes Law

Reports/

Journals

Law

Reports/

Journals

Authoritative

Texts

Authoritative

TextsUnreportedUnreported

PublishedPublished

ActsEnactmentOrdinances

ActsEnactmentOrdinances

JudgmentsJudgments

Textbooks

Treatise/Papers

Textbooks

Treatise/PapersCustomsCustoms Trade UsagesTrade Usages Authoritative

Opinions

Authoritative

Opinions


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LEGAL SOURCES OF

MALAYSIAN LAW

Singh.H (2002)

Legal Sources of Malaysian LawLegal Sources of Malaysian Law

Syariah LawSyariah LawUnwritten LawUnwritten LawWrittenWritten

ConstitutionalLawConstitutionalLaw

LegislationLegislation Subsidiary/Delegated

Legislation

Subsidiary/Delegated

Legislation

Judicial DecisionsJudicial Decisions Applicable English lawsApplicable English laws Customary LawsCustomary Laws

Federal Constitution

State Constitutions

Federal Constitution

State Constitutions

Acts of

Parliament

State Laws

(Ordinances/

Enactments)

Acts of

Parliament

State Laws

(Ordinances/

Enactments)

Delegated by Acts

of Parliament eg.

Uniform Building

Bye-Laws,etc

Delegated by Acts

of Parliament eg.

Uniform Building

Bye-Laws,etc

Muslim Law

Applicable to

those practising

Islamic Faith

Muslim Law

Applicable to

those practising

Islamic Faith

Case Law

Doctrine of Stare Decisis/

Judicial Precedent

Case Law

Doctrine of Stare Decisis/

Judicial Precedent

Common Law

Equitable Principles

Statutes of General Application

Common Law

Equitable Principles

Statutes of General Application

Native Customs

Trade Custom/Usage

Native Customs

Trade Custom/Usage


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ENGLISH LAW IN MALAYSIA

Under the Civil Law Act 1956 Section3(1) of the Act

In Peninsula Malaysia from 7 April 1956-rules of equity

Sabah on 1st December 1951-rules of equity and statutes ofgeneral application

Sarawak on 12th December 1949-rules of equity and statutes ofgeneral application

Subject to :

So far as the circumstances of the States of Malaysia and therespective inhabitants permit;

Such qualification as local circumstances make necessary;

In the absence of local legislation, the English laws applies

Singh.H (2002)


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MUSLIM OR SYARIAH LAW

Tun Mohammed Suffian described.

Syariah or Muslim law, is partly divine in

origin being found in the words of God in the

holy Quran. It is partly human in origin beingfound in interpretations attributed to Prophet

Muhammad. S.A.W of some words of God (this

interpretation is recorded in the Hadith

traditions), in laws agreed by learned lawyers in

days of old, in commentaries by learned ancientand modern scholar and in custom


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MUSLIM OR SYARIAH LAW

Traditionally, Muslim Law has been confined

to personal laws relating to issues such as

marriage, divorce, guardianship,

inheritance,etc and is enforced in each state

by the Syariah or Muslim Courts. However,

towards inculcating more Islamic elements

into administrative and legal spheres of the

country, Muslim law has been established

beyond its traditional categories e.g.banking.Commercial, financial .increasingly

important legal source of law in Malaysia..


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CONSTRUCTION LAW

What is construction law?.as it is the legalitiesinvolved in construction professionals everyday

transaction

John Uffs comment Construction Law is

neither a legal term of art nor a technical one. Itis used to cover the whole field of law which, in

one way or another,affects the construction

industry..

Interchangeable with building law,

engineering law construction law covers a

wider scope, all encompassing then building or

engineering law Singh.H (2002)

At the moment..Muslim Law is excluded


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TYPES OF LAW IN ENGINEERING /

CONSTRUCTION WORKS

Construction

Law

Types of Law in

Engineering/Construction

Works

Engineering

Law

Building

Law


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LEGAL SOURCES OF CONSTRUCTION

LAWLegal Sources of Construction LawLegal Sources of Construction Law

Written LawWritten Law Unwritten LawUnwritten Law


Legislation


Legislation

JudicialDecisionsJudicialDecisions TradeCustom

/Usage

TradeCustom

/Usage

LegislationLegislation ApplicableEnglish LawApplicableEnglish Law

Acts of

Parliament

Acts of

Parliament

State

Laws

State

Laws Common LawsCommon Laws Equitable

Principles

Equitable

Principles

StatutesStatutes

Delegated by Acts of

Parliament eg Uniform

Building by Laws.etc

Delegated by Acts of

Parliament eg Uniform

Building by Laws.etc

Local Case Law

Doctrine of

Stare Decisis/

Judicial

Precedent

Local Case Law

Doctrine of

Stare Decisis/

Judicial

Precedent

Particular to the

Engineering/Cons

truction Industry

For implication/

interpretation of

terms

Particular to the

Engineering/Cons

truction Industry

For implication/

interpretation of

terms

Statutes

Subsidiary/Dele

gated

Legislation

Statutes

Subsidiary/Dele

gated

Legislation

Ordinances

Enactments

Ordinances

Enactments

Common Law

Principles

Case Law

Subject to Section 3 &

5 of the Civil Law Act

1956

Common Law

Principles

Case Law

Subject to Section 3 &

5 of the Civil Law Act

1956

As permitted

under Sect 3 of

Civil Law Act 1956

As permitted

under Sect 3 of

Civil Law Act 1956

Under Sect 3 & % of

Civil Law Act 1956

Statutes of General

Application,

Commercial law, etc

Under Sect 3 & % of

Civil Law Act 1956

Statutes of General

Application,

Commercial law, etc


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COMMON CATEGORIES OF

CONSTRUCTION LAWCommon Categories of Construction LawCommon Categories of Construction Law

Law of

Contract

Law of

Contract

Law of TortLaw of Tort Public LawPublic Law Commercial LawCommercial Law Civil LawCivil Law

NegligenceNegligence NuisanceNuisance MisinterpretationMisinterpretation DefamationDefamation Vicarious

Liability

Vicarious

Liability

Contract Acts1950ApplicableCommon Lawand EquitablePrinciplesJudicialPrecedent/ Case

Laws

Contract Acts1950ApplicableCommon Lawand EquitablePrinciplesJudicialPrecedent/ Case

Laws

Actions againstindividualsCommon Torts

Actions againstindividualsCommon Torts

Criminal LawSpecific ActsEg. Street, Drainage

and Building Act1974Architects Act 1967Registration ofEngineers Act

1967,etc

Criminal LawSpecific ActsEg. Street, Drainage

and Building Act1974Architects Act 1967Registration ofEngineers Act

1967,etc

Company LawLaw ofTrustInsurance Law

Specific Acts e.gSales and PurchaseAgreementArbitration Act 1952Sale of Goods Act 1957

Company LawLaw ofTrustInsurance Law

Specific Acts e.gSales and PurchaseAgreementArbitration Act 1952Sale of Goods Act 1957

Civil Law Act 1956Applicable EnglishLaw

JudicialPrecedent/CaseLaw

Civil Law Act 1956Applicable EnglishLaw

JudicialPrecedent/CaseLaw

Private

Public

Private

Public

Innocent

Negligent

Fraudulent

Innocent

Negligent

Fraudulent

Libel

Slander

Libel

Slander


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In Summary for Part 1

When addressing issue of

construction law it is prudent to

consider the following fields of law

impacting on or contributing to it:

Law of Contract

Law ofTort

Civil Law

Commercial Law

Public Law ( for international contracts

and private international law)


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..of growing importance in theengineering/construction industry is the impact of the

law of tortdeveloping rapidly in the developed

world and in Malaysia..

..there is no aspect of human endeavor that has

been spared the effects of this branch of law..and in

the construction industry major torts are

Negligence

Nuisance (both public and private)

Misinterpretation

Defamation

Vicarious liability


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..in civil lawin civil issues enforced by civil courts

help shape the rights, duties and liabilities of the

main players in the industry.

..in commercial issues.involved elements of

company law, law of trust, insurance law ..specificact e.g. Arbitration Act 1952, Sale of Goods Act

1957, available local law


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..public lawconformance to relevant

planning and building Acts and Regulations

or persecution or sanction in event of

default or breachStreet, Drainage andBuilding Act 1974

professional dereliction of duty. The

relevant statute, e.g.Architects Act 1967,

Registration of Engineers Act 1967toprotect the public interest and sanction

delinquent members of the industry


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Construction lawcut across a broad area of the

law of the land with its attendant rights and

obligations.

A practitioner of construction law must beconversant with the core aspects involving the

Law of contract

Law of tort

whilst not discounting..Civil Law, CommercialLaw, Public Law.( for foreign contracts)..

private international law


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WEEK 2

ARCHITECTS ACT & RULE

TYPES OF PROFESSIONALPRACTICE AND

CODE OF ETHICS


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COMPETITION

COMMISSION

CONTRACT AGREEMENT WITHCLIENT

PROFESSIONAL SCALE OF

FEES


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REFERENCES

Singh.H (2002) Law & Principles-

Engineering and Construction

Contract Management.

Singapore.LexisNexis

1a. week 1 definition)

Documents