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Law Pro
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Category: Legal
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Experience:  20 years legal practitioner: real estate, collections, estate, civil, business, and criminal law
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legal aspects in construction

Resolved Question:

a contract states that rollover protective devices " shall be installed on crawlers and rubber tire tractors such as dozers,push and pull tractors, winch tractors, mowers, off the highway self-propelled pneumatic tire earth movers, such as trucks, pans, scrapers, bottom dumps, and end dumps, motor graders." the contractor is palnning on using a certain type of trenching machine to perform the work. after the contract has been entered into, a dispute arises as to whether the contractor must put the rollover protective device on the trencer. the contractor (naturally) says the contract does not require him to put the rollover protective device on the trencher, and the owner says the contract does require the rollover protective device. discuss as to this specific clause and what the rules in general are for such a situation.
Submitted: 3 years ago.
Category: Legal
Expert:  Fran-mod replied 3 years ago.

Hello,

My name is Francine, and I’m the Legal Category Moderator for JustAnswer. My job is to assist customers with pending questions for the Legal Experts here at JustAnswer.

I'm sorry you haven't received an answer yet.

The response rate on JustAnswer is usually over 95%, but delays can result depending on the number of Experts online, the question volume, and the difficulty level of the question.

If you would still like to receive an answer from an Expert, just let me know, and I will do my best to assist you by finding an Expert to help you.

Expert:  Law Pro replied 3 years ago.
Is this a school class question?
Customer: replied 3 years ago.
yes it is my school question. Please can you help me??
Customer: replied 3 years ago.
Can you help?? please let me know???
Expert:  Law Pro replied 3 years ago.
Did you ask this question twice because you have two open questions?
Customer: replied 3 years ago.
No i typed it by mistake... can you answer me with that question?
Customer: replied 3 years ago.
please can you help me??
Expert:  Law Pro replied 3 years ago.
OK, you stated:

a contract states that rollover protective devices " shall be installed on crawlers and rubber tire tractors such as dozers,push and pull tractors, winch tractors, mowers, off the highway self-propelled pneumatic tire earth movers, such as trucks, pans, scrapers, bottom dumps, and end dumps, motor graders." the contractor is palnning on using a certain type of trenching machine to perform the work. after the contract has been entered into,

Issue:

a dispute arises as to whether the contractor must put the rollover protective device on the trencer. the contractor (naturally) says the contract does not require him to put the rollover protective device on the trencher, and the owner says the contract does require the rollover protective device. discuss as to this specific clause and what the rules in general are for such a situation.

The contract is silent or doesn't mention "trenchers".

Then the issue is - is a trencher of the type of machinery as contemplated by the parties that would be required to have a "roll-over" cage installed before it's use?

Depending upon if work was or wasn't performed on the job.

If no work done - then the contract could be voided because there wasn't a "meeting of the minds" in the matter.

If work was performed on the job - the parties could void the contract and the contractor be paid for the work performed to date on the job - restitution for work performed.

If the contractor wanted to complete the contract and state the language of the contract didn't include the "trencher" and therefore he could complete the work. If the owner refused to allow such, the contractor could sue not only for the work performed but their expectation damages as to the profit from their completing the job.

If the owner refused the contractor to complete the job because of their thoughts about the "trencher" being defined within the contract - they could sue the contractor for breach of contract and higher another contractor to complete the work and sue for the additional costs, if any.



Customer: replied 3 years ago.
thank you so much for your valuable information..one small doubt?
But who is correct in this situation?? i mean the owner or the contractor?? what are the rules to imply if contractor/owner is correct?
Expert:  Law Pro replied 3 years ago.
That for the judge/jury to decide - they are the fact-finders in the matter.

Who's right - I don't know - there would be needed to ask them questions as to what they knew about the matter when they entered into the contract.

For class - you just need to make arguments for both sides.

However, if I had to make a decision - I think the owner has the better argument because a "trencher" moves earth and given the requirement that the owner made a part of the contract.
Law Pro, Attorney
Category: Legal
Satisfied Customers: 23478
Experience: 20 years legal practitioner: real estate, collections, estate, civil, business, and criminal law
Law Pro and 11 other Legal Specialists are ready to help you
Customer: replied 3 years ago.
i really got your answers i ahve 4 more questions?? can you help me??
Expert:  Law Pro replied 3 years ago.
Yes, but they should be new questions. You can ask for me, "Law Pro" and I would try to assist you in answering them.
Customer: replied 3 years ago.
sure sure!! can anybody see these questions other than we both?

2)Heller had contract fore the construction of an office building in San Jose. As part of the work procedure planned by heller, the material excavated from the proposed basements would be used as fill material for the elevated parking lot. however, because of unusual heavy rainfall, when the excavation work began, it was apparent that the moisture content(saturated condition) of the soil made the excavated material unsuitable for fill material. the contractor requested a time extension to delay the construction activities and allow the soil to dry out. the owner refused to consider the request until it was substantiated by sources such as the US weather bureau and by a critical path method(CPM diagram that showed the delay). when no response was forthcoming from the owner, the contractor continued working through the bad weather. to stay on schedule, the contractor removed the excavated material and imported the fill material for the parking lot. the contractor then placed a claim for the additional costs of excavation. sixteen months after the initial time extension request was submitted, the owner granted the added time desired. however, the owner refused the claim for the added costs incurred by the contractor. the contractor objected and filed for arbitration, claiming that the delay in issuing a response to the request for time delay constituted constructive acceleration.
discuss what further information you will need to know and how the various alternative answers to your proposed questions will effect your decision about viability of the contractor's request for additional money.
Expert:  Law Pro replied 3 years ago.
Yes, anyone can see the questions - it's the answers that they can't see.

Since this in an entirely new question - it should be posted as a new question.


Customer: replied 3 years ago.
UNDER WHAT LAW DOES THIS COME UNDER?? I MEAN WHAT RULES ARE WE SUPPOSE TO USE FOR SUCH SITUATIONS
Expert:  Law Pro replied 3 years ago.
This new question would again involve contracts and contract law. Within contracts and contract law it would be a subcategory of construction law contracts.
Customer: replied 3 years ago.
i AM ASKING ABOUT THE 1ST QUESTION ONLY NOT THE 2ND ONE??
Expert:  Law Pro replied 3 years ago.
Both questions involve construction contracts - a subcategory of general contracts.
Customer: replied 3 years ago.
i asked you about the second question as a new question but i still dint get any answer. please help.. pleaseee
Expert:  Law Pro replied 3 years ago.
I mean an entirely new question - this is a continuation of the same question.
Customer: replied 3 years ago.
yeah i pasted an entire new question(2nd question)
Expert:  Law Pro replied 3 years ago.
OK, I'll look for it.
Customer: replied 3 years ago.
thank you so much
Expert:  Law Pro replied 3 years ago.
You're welcome.
Customer: replied 3 years ago.
did u see my question?? i mean did you find it??
Expert:  Law Pro replied 3 years ago.
No. I've been looking for it but haven't seen it yet. Hopefully it's in the legal category so I can retrieve it.
Customer: replied 3 years ago.
ya it is in the legal category only the same above question
Expert:  Law Pro replied 3 years ago.
Got it and noticed you on it.

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