978 1111578718 Legal Aspects of Architecture Engineering and The Construction Process

978-1111578718 Legal Aspects of
Architecture, Engineering and the

Construction Process
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vi Contents
I. Dissolution and Winding Up 24 C h a p te r five

J. Limited Partnership 24
3.04 Profit Corporations 24
Contracts: From Formation to Breach 42
A. Use 24 5.00 Chapter Overview 42
B. General Attributes 24 5.01 Relevance 42
C. Preincorporation Problems: Promoters 24 5.02 The Function of Enforcing Contracts: Freedom of
D. Share Ownership 24 Contract 43
E. Piercing the Corporate Veil 25 5.03 Contract Formation 43
F. Activities, Management, and Control: Insider A. Definitions 43
Misconduct 25 B. Mutual Assent 43
G. Profits and Losses 26 Objective Theory of Contracts 43
H. Life of the Corporation 26 Offer and Acceptance 44
3.05 Nonprofit Corporations 27 C. Consideration and Its Substitute 46
3.06 Professional Corporations, Limited Liability Definition of Consideration 46
Companies (LLC), and Limited Liability Reliance: Promissory Estoppel 47
Partnerships (LLP) 27 D. Reasonable Certainty of Terms 47
3.07 Joint Ventures 27 5.04 Defects in Contract Formation Affecting Mutual
3.08 Unincorporated Associations 28 Assent 47
3.09 Loose Associations: Share-Office A. Fraud and Misrepresentation: Duty to
Arrangement 28 Disclose 47
3.10 Professional Associations 29 B. Economic Duress 48
C. Mistake 48
D. Unconscionability 48
C h a p te r four 5.05 Defects in Contract Formation: Writing
Agency and Employment 30 Requirement 49
A. Intent of Parties 49
4.00 Chapter Overview 30 B. Statute of Frauds 49
4.01 Relevance 30 History 49
4.02 Introduction to the Agency Relationship 31 Transactions Subject to Statute of Frauds 49
4.03 Policies Behind Agency Concept 31 Sufficiency of Memorandum 49
A. Commercial Efficiency and Protection of Avoiding the Writing Requirement 50
Reasonable Expectations 31 C. Homeowner Contracts 50
B. Relationships Between Principal and Agent 32 5.06 Contract Classifications 51
4.04 Creation of Agency Relationship 32 A. Express and Implied 51
4.05 Actual Authority 32 B. Subject Matter 51
4.06 Apparent Authority 33 C. Bargain and Adhesion 52
4.07 Termination of Agency 34 5.07 Other Forms of Agreement 52
4.08 Disputes Between Principal and Third Party 34 A. Agreements to Agree 52
4.09 Disputes Between Agent and Third Party 34 B. Agreements to Negotiate in Good
4.10 Nontraditional Project Delivery Systems 35 Faith 53
4.11 The Employment Relationship 35 C. Memorandum of Understanding 53
A. Workers’ Compensation 35 D. Letter of Intent 53
B. Dual Employers: Employee Leasing Companies 5.08 What Is the Contract? Two Legal Rules 54
and the Special Employment Doctrine 37 A. Interpretation 54
C. Unions and Labor Disruptions: The Picket B. Contract Completeness and the Parol
Line and Project Labor Agreements 37 Evidence Rule 55
4.12 Independent Contractors 40 5.09 Contract Breach: Protected Interests 57
Copyright 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s).
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Contents vii
5.10 Remedies for Contract Breach 57 F. Duty and the Restatement (Third)
A. Overview 57 of Torts 76
B. Specific Decrees and Declaratory G. Protected Interests and Emotional
Judgments 58 Distress 77
C. Compensatory Damages 58 H. Defenses: Assumption of Risk and
D. Interest 59 Contributory Negligence 78
E. Attorneys’ Fees 60 Assumption of Risk 78
F. Punitive Damages 60 Contributory Negligence 78
5.11 Limits on Recovery 61 I. Claims Against Government Defendants 79
A. Causation 61 6.04 Intentional Torts 80
B. Certainty 61 A. Misrepresentation 80
C. Foreseeability: Freak Events and Scope of Discussion 80
Disproportionate Losses 62 Representation or Opinion 80
D. Mitigation (Avoidable Consequences) 62 Conduct Classified 80
E. Lost Profits 62 Person Suffering the Loss 80
F. Contract-Specified Remedies 63 Type of Loss 80
G. Noneconomic Losses: Emotional Distress 63 Reliance 80
5.12 Formation Defects and Restitution 63 Generalizations 80
B. Interference With Contract or Prospective
Advantage 81
C h a p te r six
6.05 Premises Liability: Duty of the Possessor of
Torts: Legal Relations Not Arising Land 81
Relevance 81
from Contract 65 To Passersby 82
6.00 Chapter Overview 65 To Trespassing Adults 82
6.01 Relevance to the Construction Process 65 To Trespassing Children 83
6.02 Tort Law: Introduction 66 To Licensees 83
A. Definition 66 To Invitees 83
B. Function 66 Movement Toward General Standard of Care 84
C. Threshold Classifications 67 Defenses to Premises Liability 84
D. A Short History of Torts 67 6.06 Employment of Independent Contractor 85
6.03 Negligence: The Societal Concept of 6.07 Products Liability 86
Reasonable Conduct 69 A. Relevance 86
A. Emergence of the Negligence Concept 69 B. History: From Near Immunity to Strict
B. Elements of Negligence 69 Liability 86
C. Standard of Conduct: The Reasonable C. Restatement (Second) of Torts Section 402A
Person 70 and Restatement (Third) of Torts: Products
The Objective Standard and Some Exceptions 70 Liability Section 2 87
Unreasonable Risk of Harm: Some Formulas 70 D. Product Misuse 88
Common Practice: Custom 71 E. Parties 89
Violations of or Compliance with Statutes 71 F. Defenses 90
Res Ipsa Loquitur 72 G. Economic Losses 91
D. Legal Cause: Cause in Fact and Proximate H. Disclaimers 91
Cause 73 I. Design Defects and Duty to Warn: Two
Cause in Fact 73 Restatements 91
Proximate Cause 74 J. Government-Furnished Design 92
E. Duty 75 K. Beyond Products: Sellers of Services 93
viii Contents
6.08 Remedies 93 Overview of Statute 118

A. Compensation 93 Construction Industry Participants 119
B. Collateral Source Rule 94 Insurance Coverage 119
C. Punitive Damages 94 Brownfields 120
D. Attorneys’ Fees: Cost of Litigation 95 C. Resource Conservation and Recovery Act
E. Interest 95 (RCRA) 121
6.09 Limits on Tort Liability for Pecuniary Losses: The D. Clean Water Act 121
Economic Loss Rule 96 E. Clean Air Act 122
A. Introduction 96 F. State Law 122
B. Permutations of the Economic Loss Rule 96 G. Environmentally Friendly Design
and Construction 122
C h a p te r s e v en
Restrictions on Ownership: Land Use Part B: The Main Actors: The

Controls and Environmental Law 101 Prime Contractor and Design
Professional 123
7.00 Chapter Overview 101
7.01 Relevance to the Construction Process 101 C h a p te r ei g ht
7.02 Limits by Private Action: Restrictive Covenants 101
7.03 Private Restrictions Versus Public Regulation: Introduction to the Construction Process:
A Comparison 104 Focus on the Owner, Prime Contractor
7.04 Protection of Neighboring Landowners 104
A. Nuisance: Unreasonable Land Use 104
and Regulatory Framework 125
B. Soil Support 106 8.00 Chapter Overview 125
C. Drainage and Surface Waters 106 8.01 The Basic Contracts: Private Ordering of
D. Easements for Light, Air, and View 106 the Parties’ Relationships 125
7.05 Zoning: The Mechanism for Land Use Control 107 8.02 The Owner 126
A. Euclidean Zoning: The Premise of Local A. Public Versus Private Owners 126
Control 107 B. Experience 128
B. Residential Districts: Exclusionary and C. Authority Problems: Private Owners 129
Inclusionary Zoning 108 Sole Proprietors 130
C. Phased Growth 109 Partnerships 130
D. Aesthetics and Control 110 Corporations 130
E. Historic and Landmark Preservation 111 Unincorporated Associations 130
F. Open Space and Environmental Spouses or Unmarried Cohabitants 131
Restrictions 112 D. Authority Problems: Public Owners 131
G. Developers and Zoning 112 8.03 The Design Professional 131
H. Limitations on Land Use Controls: 8.04 The Prime Contractor 132
Constitutionality 113 A. An Industry Overview 132
I. Smart Growth: A New Paradigm 116 B. Independent Contractor Status 133
7.06 The Environmental Movement and C. Soil Conditions: The Common Law Rule 133
Owner Liability 117 D. Responsibility for Subcontractors 135
A. National Environmental Policy Act E. Project Safety 136
(NEPA) 118 F. Acceptance Doctrine 137
B. Comprehensive Environmental Response, 8.05 The Lender 138
Compensation, and Liability Act 8.06 Insurers 139
(CERCLA) 118 8.07 Sureties 139
Contents ix
8.08 Regulation of the Design and Construction B. Mechanics of Contractor Licensing 166
Process 140 C. Contractor Licensing: Harmful Effects or
A. Permits 140 Forum for Consumer Complaints? 167
B. Building Codes 140 9.07 The Unlicensed Contractor 168
C. Building Inspections 141 A. Criminal and Quasi-Criminal
8.09 Safety Legislation 142 Sanctions 168
A. State Safe Workplace Statutes 142 B. Recovery for Work Performed and Payment
B. Occupational Safety and Health Laws 143 Reimbursement 169
C. Tort Law/OSH Act Interface 144 Statute Silent on Contractor’s Right to
8.10 International Transactions 144 Compensation 169
Statute Bars Contractor’s Right to Compensation 171
Sophisticated Parties 172
C h a p te r nine Payment Reimbursement 172
Licensing of the Design Professional Summary 173
C. Substantial Compliance 174
and Contractor 145 D. Exceptions to Contractor Licensing 175
9.00 Chapter Overview 145 9.08 The Trained but Unregistered Design Professional:
9.01 Introduction 145 Moonlighting 176
9.02 Public Regulation: A Controversial A. Unlicensed Persons: A Differentiation 176
Policy 146 B. Ethical and Legal Questions 176
A. Justification for Regulation 146 C. Recovery for Services Performed 176
B. Criticism of Licensing Laws 147 D. Liability Problems 177
C. Importance of Attitude Toward the
Regulatory Process 148
C h a p te r T en
D. Judicial Attitudes Toward
Registration Laws 148 The Design Professional–Client
9.03 Administration of Licensing Laws 149
9.04 The Licensing Process 149
Relationship 179
A. Admission to Practice 149 10.00 Overview 179
B. Postadmission Discipline: Duncan v. Missouri 10.01 Traditional Roles of Design Professional:
Board for Architects, Professional Engineers and AIA B101-2007 180
Land Surveyors 150 10.02 Professional Service Contracts:
C. Variations on the Traditional Some Remarks 180
Contracting System 159 A. The Expanding Range of
9.05 Design Professional Licensing 159 Possible Professional Services 180
A. Preliminary Issue: Constitutionality 159 B. Profits and Risk 181
B. Holding Out 159 C. Good Faith, Fair Dealing, and Fiduciary
C. Practicing 160 Relationships: Confidentiality 181
D. Architecture and Engineering D. Variety of Contracts: Purchase Orders 184
Compared 161 10.03 Compensation of the Design Professional:
E. Architect or Engineer Applying Seal to Methods of Compensation 184
Work of Another 163 A. Introduction 184
F. Statutory Exemptions 164 B. Percentage of Construction Costs:
G. Possessor of License 164 Basic versus Additional Services 185
H. Out-of-State Practice 165 C. Multiple of Direct Personnel Expense:
9.06 Contractor Licensing Laws 165 Daily or Hourly Rates 189
A. Overview 165 D. Professional Fee Plus Expenses 190
x Contents
E. Fixed Fee 190 J. Failure of Cost Prediction caused by

F. Reasonable Value of Services or a Architect’s Consultant 212
Fee to Be Agreed On 191 K. Making the Design Professional Responsible
G. Reimbursables 191 for Cost Overruns 212
H. Fee Ceilings 191 L. Advice to Design Professionals 213
I. Adjustment of Fee 192 10.09 Site Services: Observing the Contractor’s
J. Deductions from the Fee: Work 213
Deductive Changes 192 A. Introduction 213
K. Project Risks 193 B. From Supervision to Observation: Watson,
L. The Fee as a Limitation of Liability 193 Watson, Rutland/Architects v. Montgomery
10.04 Compensation of the Design Professional: County Board of Education 213
Timing of Payment 193 C. Site Inspections: Statutory and Administrative
A. Service Contracts and the Right to Regulations 224
Be Paid as One Performs 193 D. Site Inspections: Certification of the
B. Interim Fee Payments 194 Contractor’s Progress Payments 225
C. Monthly Billings 194 10.10 Review of Contractor Submittals 225
D. Late Payments 194 10.11 Hazardous Materials 230
E. Suggestions Regarding 10.12 Who Actually Performs Services: Use of and
Interim Fee Payments 195 Responsibility for Consultants 230
10.05 Payment Despite Nonperformance 195 A. Within Design Professional’s
10.06 Client Obligations to the Design Professional Organization 230
Not Involving Compensation 196 B. Outside Design Professional’s Organization:
10.07 Professional Services: Prior to Consultants 231
Receipt of Bids 196 10.13 Ownership of Drawings and Specifications 233
A. Assistance in Obtaining Financing 197 10.14 Time 236
B. Economic Feasibility of Project 197 10.15 Suspension or Cessation of Services: Special
C. Approval of Public Authorities: Dispute Problems of the Client–Design Professional
Resolution 198 Relationship 237
D. Services of a Legal Nature 199 A. Introduction 237
10.08 Cost Predictions 199 B. Specific Contract Provision as to Term 237
A. Inaccurate Cost Prediction: A Source of C. Conditions 237
Misunderstanding 199 D. Suspension 238
B. Two Models of Cost Predictions 200 E. Abandonment 239
C. Creation of a Cost Condition: F. Termination Clauses 239
Griswold & Rauma v. Aesculapius 201 G. Subsequent Events: Death of Design
D. Cost Predictions: A Contract Law Analysis 205 Professional 240
E. Cost Predictions: A Negligence H. The Lender’s Perspective 241
Law Analysis 206 10.16 Judicial Remedy for Breach of the Design
F. Standard Contracts and Disclaimers: Agreement 242
A Look at AIA Standard Contracts 207 A. Introduction 242
G. Cost Predictions: Breach of Fiduciary Duty or B. Client Claims and the “Betterment”
Misrepresentation? 209 Rule Defense 242
H. Dispensing with the Cost Condition 209 C. Design Professional Claims 244
I. Nonperformance as a Breach: D. Out-of-State Practice 245
Recovery of Damages 210
Contents xi
C h a p te r E l e v en Standard Form Contracts 275

Definition of Terms 276
Design Professional Liability 246 Government Embrace of “Green” Design 276
11.00 Overview 246 Green Building Claims 278
11.01 Claims Against Design Professionals: 11.08 Third-Party Claims Against Design
On the Increase 246 Professionals 279
Changes in Substantive Law 247 A. Potential Third Parties 279
Access to Legal System 247 B. Contract Duty: Contracts for Benefit of
Societal changes: Consumerism 247 Third Parties 279
Design and Social Policy 247 C. Tort Law: Privity and Duty 281
Codes 248 D. Negligence, Negligent Misrepresentation, and
11.02 Claims Against Design Professionals: the Economic Loss Rule: Bilt-Rite Contractors,
Some Illustrations 248 Inc. v. The Architectural Studio and SME
11.03 Design Professional Liability: Industries, Inc. v. Thompson, Ventulett,
The Negligence Standard 251 Stainback & Assocs., Inc. 282
A. Relation to Sections 11.04, 11.05, and 11.06 251 Negligence versus Negligent Misrepresentation 282
B. The Professional Standard as the Measure of Negligent Misrepresentation and the Economic
Reasonable Care: City of Mounds Loss Rule 283
View v. Walijarvi 251 E. Interference with Contract or Prospective
C. The Professional Standard and Compliance Advantage—The Adviser’s Privilege 291
with Legal Requirements: Building and F. Safety and the Design Professional: Pfenninger
Housing Codes: The Americans with v. Hunterdon Central Regional School District
Disabilities Act 254 and CH2M Hill, Inc. v. Herman 292
D. The Professional Standard and Compliance Common Law Liability 293
with Industry or Professional Liability under Occupational Safety and Health Act 298
Ethics Standards 257 G. Duty to Warn 303
11.04 Proving the Professional Standard: Expert 11.09 Current Controversies: Some Observations 304
Testimony 258 A. The Professional Standard: Should
A. Purpose and Exceptions to General Rule 258 Professionals Be Treated Differently? 304
B. Admissibility of Testimony: National Cash B. The Design Professional’s Duty to Workers 306
Register Co. v. Haak 260 C. Injection of Tort Law into the Commercial
C. Critique of System 264 World: A Wild Card 307
D. Advice to Expert Witnesses 266 D. The Effect of Expanded Professional
11.05 Contract Standard as Measure of Conduct 266 Liability 308
A. Likelihood of Specific Standard 266
B. Client Satisfaction 267
C h a p te r t w e lv e
C. Fitness Standard 268
D. Quantitative or Qualitative Defenses to Claims of Design
Performance Standards 269 Professional Liability 310
E. Indemnification 269
F. Contractual Diminution of Standard: 12.00 Overview 310
Informed Consent 270 12.01 Legal Defenses to Claims of
11.06 Implied Warranty: An Outcome Standard 271 Design Professional Liability 310
11.07 Client Claims Against Design Professionals 273 A. Approval by Client 310
A. Suing in Contract, Tort or Both? 273 B. Acceptance of the Project 311
B. “Green” or Sustainable Design 274 C. Passage of Time: Statutes of Limitations 311
Introduction 274 D. Design Professional Decisions
Historical Background 275 and Immunity 313
xii Contents
E. Recent Legislative Activities 315 13.04 Moral Rights of Artists 339

F. Apportionment for Fault of Others 316 13.05 Patents: Some Observations and
12.02 Contractual Risk Control 317 Comparisons 339
A. Scope of Services 317 A. Scope of Coverage 339
B. Standard of Performance 317 B. Patent and Copyright Compared 340
C. Exclusion of Consequential Damages 317 13.06 Trade Secrets 340
D. Limiting Liability to Client 318 A. Definition 340
E. Immunity: Decision Making 321 B. Context of Trade Secret Litigation 341
F. Contractual Statute of Limitations 321 C. Contrast to Patents: Disclosure vs.
G. Third-Party Claims 322 Secrecy 341
H. Dispute Resolution 322 D. Adjusting Competing Social Values 341
I. The Residue 322 E. Availability of Legal Protection 342
J. Some Suggestions 322 Duty Not to Disclose or Use: Confidential Relationship
and Contract 342
Chapter thirteen Nature of Information 343
Employee Cases 343
Intellectual Property: Ideas, Copyrights,
F. Scope of Remedy 344
Patents, and Trade Secrets 323 G. Duration of Protection 344
13.00 Overview 323 H. Advice to Design Professionals 344
13.01 Intellectual Property: Introduction and Relevance
to the Design Professional 323 Part C: Project Delivery Methods 345
A. Purpose of Protecting Intellectual Property 323
B. Exclusions from Discussion: Trademarks and Chapter fourteen
Shop Rights 324
C. Relevance to Design Professional 324 Project Organization, Pricing, and
13.02 The Copyright Law of 1976 324 Delivery Methods 347
A. Common Law Copyright Abolished 324
14.00 Overview 347
B. Statutory Copyright 325
14.01 Project Planning: Focus on the Owner 347
Classification of Copyrightable Works 325
A. Owner’s Objectives 347
Copyright Duration: More Protection 325
B. Blending Business and Legal Judgments 348
Codification of Fair Use Doctrine 325
C. Public vs. Private Projects 348
Obtaining a Copyright 325
14.02 Pricing Variations 349
Remedies for Infringement 326
A. Fixed-Price or Lump-Sum Contracts:
Works Commissioned by U.S. Government 327
Some Variations 349
13.03 Special Copyright Problems of Design
B. Cost Contracts 350
Professionals 327
C. Value Engineering Change Proposal
A. Attitude of Design Professionals
(VECP) 353
Toward Copyright Protection 327
D. Unit Pricing 354
B. What Might Be Copied? 328
E. Cash Allowance 357
C. Common Law Copyright and Publication 328
F. Contingencies 357
D. Statutory Copyright 328
14.03 Traditional Organization:
Architectural Works Copyright Protection
Design–Bid–Build (DBB) 357
Act of 1990 329
A. Traditional System Reviewed 357
Copyright Owner: Work for Hire Doctrine 329
B. Weaknesses 358
Ownership of Documents and Copyright:
14.04 Modern Variations in Project Delivery:
License to Use 330
Introductory Remarks 359
Infringement: Sturdza v. United Arab Emirates 333
14.05 Phased Construction (Fast-Tracking) 360
E. Advice to Design Professionals 336
Contents xiii
14.06 Separate Contracts (Multiple Primes): 15.05 The Competitive Bidding Process 397
Broadway Maintenance Corp. v. Rutgers, A. Overview 397
State University 361 B. Invitation for Bids (IFB) 397
14.07 Construction Management (CM) 368 C. Alternates 398
A. Reasons for Construction Management 368 D. Prequalification of Bidders 398
B. Types of Construction Management 369 E. Bid Opening 399
C. Construction Management: Legal Issues 370 F. Bid Proposal: Binding the Bidder 399
The Owner/CM Relationship 370 G. The Formal Contract 400
Rights and Liabilities of the CM 371 Timing of Contract Formation 400
D. Impact on Project Organization 372 Role of Bidding Documents 401
14.08 Turnkey Contracts 373 15.06 Bid Protests 402
14.09 Design–Build: Combining Design and A. Overview and Standing 402
Construction 374 B. Standing of Disappointed Bidders:
A. Reasons for Design–Build 374 Federal Procurement 402
B. Nature of Design-Build 375 C. Evaluation of the Bid and the Bidder 402
C. Design–Build and Public Contracts 376 D. Judicial Response to Bid Protests 403
D. Design–Build on Private Contracts 378 15.07 Mistaken Bids: Sulzer Bingham Pumps, Inc. v.
E. Advantages and Disadvantages Lockheed Missiles & Space Company, Inc. 407
to Design–Build 378 15.08 Bid Deposit: Remedy for the Public
14.10 Partnering 379 Entity? 414
14.11 Teaming Agreements 380 15.09 Procurement Reform 415
14.12 Lean Project Delivery 381 15.10 Public Entity’s Duty to Disclose 416
14.13 Project Alliance 382 15.11 Illegal Contracts 417
14.14 Program Management(PM) 382 15.12 Sovereign Immunity: Federal and State 419
14.15 Public-Private Collaboration: Public-Private 15.13 Claims Against Public Entities:
Partnerships (PPP) and Build-Operate- Federal False Claims Act 420
Transfer (BOT) 383
Public-Private Partnerships 383
Build-Operate-Transfer (BOT) 384
Part D: Performance Disputes: From
14.16 Building Information Modeling (BIM) 385
14.17 Summary 387 Design to Termination 423
14.18 Administrative Problems 387
C h a p te r s i x teen
A. Overview 387
B. Authority: Special Problems of Construction Performance Disputes Overview: Claims
Projects 387
C. Communications 390 and Defenses to Liability for the Owner
and Prime Contractor 425
C h a p te r f i f teen 16.00 Overview 425
16.01 Claims: Theories of Legal Liability 426
Public Contracts 392 A. Introduction 426
15.00 Overview 392 B. Categorizing Claims 426
15.01 Public Contracts: Social and Economic Contract Law Claims Generally 426
Objectives 392 Contract Law Claims—Express Warranty 426
15.02 What Is a “Public Work”? 394 Contract Law Claims—Implied Warranty 426
15.03 Design Contracts: The Brooks Act 395 Contract Law Defenses 426
15.04 Competitive Bidding: Objectives and Tort Law Claims 427
the Pitfall of Corruption 396 Statutory Claims 427
xiv Contents
16.02 Principles Underlying Claims 427 D. Impossibility: Commercial

A. Basic Principle: Responsibility Impracticability 452
Follows Control 427 E. “Impossible” Specifications 453
B. Supplemental Principle: Good Faith and F. Frustration 454
Fair Dealing—Contractor Cognizant of G. Unconscionability 455
Design Defects 429 H. Contractor’s Destruction of Project
16.03 Contractor Claims 430 Covered by Owner’s Insurance: Subrogation
A. Introduction 430 Waivers 457
B. Misrepresentation Through Defective I. Governmental Acts 459
Specifications: United States v. Spearin 430 J. Acceptance of Project 460
Design Specifications 432 K. Change of Ownership: Who Then
Misrepresentation and Defect 432 Owns a Cause of Action for Defective
Injury 435 Construction? 460
C. Owner Nonpayment 436 L. Passage of Time: Statutes of
16.04 Owner Claims: Design, Execution, and Limitation and Repose 462
Blurred Roles 436 16.13 A Suggestion: Defect Response Agreements 464
A. Introduction 436
B. Owner Claims: Divided Responsibility for C h a p te r s e v enteen
Construction Defects 437
Stating the Problem 437 Construction Contracts and
Defect Traced to Owner and Contractor 437 Rules of Contract Interpretation 466
Shared Design Responsibilities 438
16.05 Warranty (Guarantee) Clauses 439 17.00 Overview 466
A. Introduction 439 17.01 The Contract Documents 466
B. Relationship to Project Acceptance 439 A. Basic Agreement 466
C. Purposes: St. Andrew’s Episcopal Day School v. B. Drawings (Plans) 467
Walsh Plumbing Co. 440 C. Specifications—Fruin-Colnon v. Niagara
D. Warranty and Correction of Frontier and Blake v. United States 467
Work Under A201 444 Design and Performance Specifications 467
16.06 Contractor’s Implied Warranty of Proprietary Specifications 472
Workmanship 445 D. Conditions: General and Supplementary 474
16.07 Homeowner Claims: Implied Warranties in the E. Prior Negotiations and
Sale of Homes 446 the Parol Evidence Rule 475
A. Home Buyers and Their Legal Problems 446 F. Modifications 476
B. The Implied Warranty G. Contracts in an Electronic Age 477
Explosion of the 1960s 446 17.02 Judicially Determined Terms 477
C. Current Problems 446 A. Implied Terms 477
16.08 Homeowner Claims: Consumer Protection B. Custom 480
Legislation 447 C. Building Codes and Permits 480
16.09 Homeowner Claims: Residential Construction D. Good Faith and Fair Dealing 481
Defects Legislation 448 E. Unconscionability:
16.10 Financial Problems 449 Judicial Elimination of Terms 483
16.11 Asbestos and Other Hazardous Materials 450 17.03 Contract Interpretation: Basic Objectives 483
16.12 Contractor Defenses to Claims 451 17.04 Language Interpretation: Two Fundamental
A. Introduction: Causation and Fault 451 Approaches 484
B. Contractor Followed the Design 452 A. Plain Meaning Rule 484
C. Mutual Mistake 452 B. Illustrative Federal Cases: TEG-Paradigm
Environmental, Inc. v. United States 485
Contents xv
C. Extrinsic Evidence 489 F. Formal Requirements 521

D. Practical Interpretation 489 G. Intention to Claim a Change 522
E. Canons of Interpretation 490 H. Excusing Formal Requirements 522
Expressio Rule 490 I. Pricing Changed Work 524
Ejusdem Generis 490 18.05 Effect of Changes on Performance Bonds 525
Reasonableness 490
Fairness 490 C h a p te r nineteen
Contra Proferentem 490
F. Industry Contracts 491 Payment: Money Flow as Lifeline, and the
G. One-Sided Clauses 493 Complexity of Project Completion 526
17.05 Bidding Process—Patent Ambiguity:
19.00 Overview 526
Newsom v. United States 494
19.01 The Doctrine of Conditions 526
17.06 Resolving Conflicts and Inconsistencies 496
19.02 Progress Payments 527
A. Within the Written Agreement 496
A. Function 527
B. Between Documents: Unicon Management
B. Schedule of Values 527
Corp. v. United States; Hensel Phelps
C. Progress Payment Application Process 527
Construction Co. v. United States 497
D. Design Professional’s Certification of Payment
17.07 Reformation of Contracts 503
Applications 528
Observation of Work 528
C h a p te r ei g hteen Certification of Payment 529
Design Professional Liability 530
Changes: Complex Construction E. Progress Payments on Public Contracts 531
Centerpiece 504 F. Payment for Subcontractor Work:
Joint Checks 532
18.00 Overview 504
G. Payment as Waiver of Defects 533
18.01 Definitions and Functions of a Changes Clause:
19.03 Legal Interests in Progress Payments 534
Watson Lumber Co. v. Guennewig 504
A. Contractor’s Assignment of
Function of Changes 504
Terminology 505
Payments to Lender 534
AIA Documents 505
B. Lender Involvement 534
Pricing Changes 506
C. Surety Requests to Owner That
The Parties’ Perspectives 506
Payment Be Withheld 535
19.04 Retainage 536
18.02 Shifts in Bargaining Power 510
19.05 Late Payment or Nonpayment During
18.03 Types of Changes 510
Performance 539
A. Cardinal Change 510
Prompt Payment Acts 539
B. Constructive Change 513
AIA Documents and Common Law Rights 539
C. Deductive Change (Deletion) 513
19.06 The Completion Process and Payment 541
D. Minor Change 514
A. Substantial versus Final Completion 541
E. Tentative Change 514
B. Final Payment: Release of Future
18.04 Change Order Mechanisms 514
Contractor Claims 541
A. Judicial Attitude Toward Changes
19.07 Uncompleted Work and the Substantial
Mechanisms 514
Performance Doctrine 543
B. Limitation on Power to Order Changes 515
A. The Doctrine of Conditions 543
C. Authority to Order Change 517
B. Substantial Performance: Plante v. Jacobs 544
D. Misrepresentation of Authority 519
19.08 Work Not Substantially Complete: Recovery in
E. Duty to Order Change from Contractor 520
Quantum Meruit 550
xvi Contents
C h a p te r T w ent y B. The Critical Path Method (CPM) and

Float 576
Subsurface Problems: Predictable C. Other Legal Issues 580
Uncertainty 552 D. Forensic Scheduling:
20.00 Overview 552 Proving Delay Claims 580
20.01 Discovery of Unforeseen Conditions 552 21.06 Causation: Concurrent Causes 581
A. Effect on Performance 552 21.07 Time Extensions 582
B. Causes 553 A. Role of Design Professional 582
C. Two Models 553 B. Duration of Extension 582
D. Enforceability of a Promise to C. Notices 582
Pay More Money 554 21.08 Contractor-Caused Delay: Owner Remedies 583
E. Supervening Geotechnical Conditions and A. Actual Damages 583
Mistake Claims 554 B. Liquidated Damages: Carrothers Constr. Co.,
20.02 Common Law Rule 555 L.L.C. v. City of South Hutchinson 583
20.03 Information Furnished by Owner 555 21.09 Owner-Caused Delay 592
20.04 Risk Allocation Plans 556 A. Sources of Owner Delays and
20.05 Disclaimers—Putting Risk on Contractor 558 Some Contract Defenses 592
20.06 Contractual Protection to Contractor 559 B. No-Damages Clauses: Triple R Paving,
A. Public Contracts: The Federal Approach 559 Inc. v. Broward County 593
B. AIA Approach: Concealed Conditions 564 C. Subcontractor Claims 599
C. EJCDC Approach 565 D. Records 599
D. The FIDIC Approach 566 21.10 Owner Acceleration of Contractor
20.07 Some Advice to Courts 567 Performance 599
A. Specific: The Changes Clause 599
B. Constructive Acceleration 599
C h a p te r t w ent y - one C. Voluntary: Early Completion 600
21.11 Bonus/Penalty Clauses: An Owner Carrot 601
Time: A Different but Important
Dimension 568
C h a p te r T w ent y - t w o
21.00 Overview 568
21.01 Introduction 568 Owner–Contractor Disputes: Damages
21.02 Commencement 569 and Settlement 603
21.03 Completion 570
21.04 Allocation of Delay Risks 570 22.00 Overview 603
A. Categorization of Delays and 22.01 Introduction 603
Remedies for Delay 570 22.02 Measurement: Contractor versus Owner 604
B. Common Law 571 A. Illustrations 604
C. Fault 571 B. Cost Contracts 604
D. Force Majeure Clauses 571 C. Project Never Commenced 604
E. Weather 573 D. Project Partially Completed: Damages 605
F. Subcontractor-Caused Delay 573 E. Project Partially Completed: Restitution 606
G. “Time Is of the Essence” Clauses 574 F. Project Completed: Complete General
21.05 Measuring the Impact of Delay: Construction Co. v. Ohio Department
Project Schedules 574 of Transportation and New Pueblo Constructors
A. Approaches to Scheduling: v. State of Arizona 609
AIA and EJCDC 575 Denial of Restitution 609
Site Chaos and Productivity 609
Contents xvii
Extended Home Office Overhead: C. Bargaining Situation: Shopping and

Eichleay Formula 611 Peddling 652
Productivity Loss Preferred Formulas: Measured Mile D. Avoiding Drennan 653
and Industry Productivity Studies 615 E. Uniform Commercial Code 654
Total Cost 616 F. A Suggestion 654
Jury Verdict 617 23.04 Subcontractor Selection and Approval: The
22.03 Measurement: Owner versus Contractor 619 Private Owner’s Perspective 655
A. Illustrations 619 23.05 Payment Claims Against Prime Contractor:
B. Project Never Begun 619 “Pay When Paid” Clause 656
C. Project Partially Completed 620 23.06 Payment Claims Against Property, Funds, or
D. Defective Performance: Correction Cost or Entities Other Than Prime Contractor 659
Diminished Value? 621 A. Introduction 659
E. Delay 624 Court Judgments versus Specific Remedies 659
22.04 Certainty 625 Payment Bonds 659
22.05 Records and Notices 626 Effect of Statutory Remedy on Nonstatutory Claims 660
A. During Performance 626 B. Mechanics’ Liens 660
B. After Dispute Arises 626 Legal Complexity 660
C. Notices 627 Overview 660
22.06 Consequential Damages: Lost Profits 627 Claimants and Lienable Work 661
A. Defined 627 Lien Priority 662
B. Owner Claims 628 Constitutionality 663
C. Contractor Claims 628 Criticism 663
D. Waiver of Consequential Damages: No-Lien Contracts 664
AIA Approach 629 C. Stop Notices 664
22.07 Avoidable Consequences: D. Trust Fund Legislation: Criminal and
The Concept of Mitigation 629 Civil Penalties 664
22.08 Collateral Source Rule: Off-Setting Benefits 631 E. Nonstatutory Claims Against
22.09 Single Recovery Rule: Claims Against Third Parties 665
Multiple Defendants 631 F. Joint Checks 666
22.10 Noneconomic Losses: Erlich v. Menezes 632 G. Payment Claims on Public-Private
22.11 Punitive Damages 636 Partnership (PPP) Projects 667
22.12 Disputes and Settlements: Rich & Whillock v. 23.07 Performance-Related Claims Against
Ashton Development, Inc. 638 Prime Contractor 667
23.08 Owner Claims Against Subcontractors 668
23.09 Pass-Through Claims Against Owner:
C h a p te r t w ent y - th r ee
Liquidating Agreements 669
The Subcontracting Process: 23.10 Public Contracts 670
An “Achilles Heel” 643
C h a p te r t w ent y - f o u r
23.00 Overview 643
23.01 An Overview of the Process 643 Terminating a Construction Contract:
23.02 The Subcontract and Sources of Rights and Sometimes Necessary but Always
Duties: Flow-Through Clauses 647
23.03 The Subcontractor Bidding Process 651 Costly 671
A. Using Sub-Bids 651 24.00 Overview 671
B. Irrevocable Sub-Bids 651 24.01 Termination: A Drastic Step 671
24.02 Termination by Agreement of the Parties 673
xviii Contents
24.03 Contractual Power to Terminate 673 E. Implied Contractual Indemnity 699

A. Default Termination 674 F. Comparative Negligence 699
B. Termination or Suspension for G. Preemption 699
Convenience 676 25.05 Contractual Indemnity 700
C. Events for Which Neither Party Is A. Indemnification Compared to Exculpation,
Responsible 679 Liability Limitation, and Liquidated
D. Role of Design Professional 679 Damages 700
E. Waiver of Termination and Reinstatement of B. Indemnity Clauses Classified 701
Completion Date 680 C. Functions of Indemnity Clauses 702
F. Notice of Termination 682 D. Statutory Regulation 704
G. Taking Over Materials and Equipment 683 E. Common Law Regulation: Specificity
H. Effect on Existing Claims for Delay 683 Requirements 706
I. Disputed Terminations 684 F. Interpretation Issues 707
J. Public Contracts and Constitutional Losses and Indemnity Coverage 707
Protection 684 Work-Relatedness of Injury 708
24.04 Termination by Law 685 Amount Payable/Defense Costs 708
A. Material Breach 685 Who May Enforce Indemnity Clause 709
B. Future Breach: Prospective Inability and G. The AIA Indemnity Clause 710
Breach by Anticipatory Repudiation 686 H. Indemnitor Required to Procure
C. Bankruptcy 688 Insurance 711
24.05 Restitution When a Contract Is Terminated 688 25.06 Insurance: Risk Spreading 712
24.06 Keeping Subcontractors After Termination 689 A. Types of Insurance 712
B. Introduction to Insurance Industry and
Policy 713
Part E: Risk Management and Standardized Insurance Policies 713
Dispute Resolution 691 Regulation 714
Premiums 714
C h a p te r t w ent y - f i v e Deductible Policies 714
Policy Limits 714
Shifting Losses and Risk Management: Notice of Claim: Cooperation 715
Contribution, Indemnity, Duty to Defend 715
and Insurance 693 Settlement 716
Multiparty Policies 716
25.00 Overview 693 25.07 Property Insurance: Partial or Total Destruction of
25.01 First Instance and Ultimate Responsibility Project and Subrogation Waivers 716
Compared 693 25.08 CGL Insurance and Defective
25.02 Terminology 694 Construction Claims 718
25.03 Contribution Among Wrongdoers 694 25.09 Professional Liability Insurance 720
25.04 Noncontractual Indemnity 695 A. Requirement of Professional
A. Contribution and Noncontractual Liability Insurance 720
Indemnity Differentiated 695 B. Policy Types: Occurrence or
B. Basic Principle: Unjust Enrichment 696 Claims Made 720
C. When Is Noncontractual Indemnity C. Coverage and Exclusions:
Awarded? 696 Professional Services 721
D. Employer Indemnification and Workers’ D. Preparing to Face Claims 723
Compansation Immunity 698
Contents xix
C h a p te r t w ent y - s i x B. Reasons for Initial Design Professional

Decision 742
Surety Bonds: Backstopping C. Initial Decision Requirement Excused 742
Contractors 725 D. Jurisdiction of Decision-Making Powers 743
26.00 Overview 725 E. Procedural Matters 744
26.01 Mechanics and Terminology 725 Requirements of Elemental Fairness 744
26.02 Function of Surety: Insurer Compared 726 Standard of Interpretation 745
26.03 Surety Bonds in Construction Industry 727 Form of Decision 746
A. Construction Industry Bonds Not for Costs 747
Payment or Performance 727 F. Finality of Initial Decision 747
Bid Bonds 727 G. Finality: A Comment 749
License Bonds 727 H. The Initial Decision Maker: Some
Lien Release Bonds 727 Observations 750
Subdivision Bonds 727 27.03 Statutory Framework of Arbitration 751
B. Need for Bonds in Construction Industry 727 27.04 Abuse of Arbitration 751
26.04 Performance Bonds 728 27.05 State Regulation and Federal Preemption 753
A. Surety’s Promise to Owner 729 A. State Statutes 753
B. Triggering the Performance Bond B. Federal Preemption 754
Obligation 729 27.06 Nonstatutory Obstacles to Arbitration 756
Conference 729 A. Unconscionability 756
Declaration of Default 729 B. Underlying Contract 757
Tender of Contract Balance 730 Invalidity of Contract 757
C. Surety’s Options 730 Incorporation by Reference 757
D. Surety’s Defenses 731 Contract Formalities 757
E. Surety Responsibility 732 Nonsignatories 758
26.05 Payment Bond 733 Electronic “Writing” 758
A. Function 733 C. Other Defenses: Fraud, Mutuality, Termination
B. Who Can Sue on the Bond? 734 of Contract, and conditions Precedent 759
C. Payment Bond Liability 735 27.07 Arbitrability 760
26.06. Asserting Claims: Time Requirements 736 A. Substantive Arbitrability: Which Disputes
26.07 Reimbursement of Surety 737 Are Subject to Arbitration? 760
26.08 Regulation: Bad-Faith Claims 738 B. Procedural Arbitrability: Timeliness of
26.09 Bankruptcy of Contractor 739 Arbitration Demand 762
26.10 International Contracts 739 C. Who Decides Jurisdiction and Timeliness 762
27.08 Waiver of Arbitration 764
27.09 Prehearing Activities: Discovery 765
C h a p te r t w ent y - s e v en 27.10 Selecting Arbitrators and
Arbitrator Immunity 766
Claims, Arbitration, and Other Alternative 27.11 Place of Arbitration 768
Dispute Resolution Methods 740 27.12 Multiple-Party Arbitrations: Joinder and
27.00 Overview 740 Consolidation 768
27.01 Claims Process: Initial 27.13 The Hearing 770
Administrative Review 740 A. A Differentiation of Issues:
27.02 AIA Claims Process 741 Desirable versus Required 770
A. Introduction: Who Makes the Initial B. Waiver 770
Decision? What Happens Next? 741 C. Time 770
xx Contents
D. Proceeding Without the Presence of Appendices

One of the Parties 770
E. The Arbitrators 771 Appendix A
F. Rules for Conducting the Hearing 771 Standard Form of Agreement Between Owner and
G. Opening Statements 771 Architect with Standard Form of Architect’s Services
H. Production of Evidence: Subpoena (AIA Document B101-2007) A-1
Powers 771
I. Legal Rules of Evidence 771 Appendix B
J. Documentary Evidence 772 Standard Form of Agreement Between Owner and
K. Questioning Witnesses 772 Contractor (AIA Document A101-2007) B-1
L. Visiting the Site 772
M. Ex Parte Communications 772 Appendix C
N. Transcript 772 General Conditions of the Contract for Construction
O. Reopening Hearing 772 (AIA Document A201-2007) C-1
27.14 Substantive Standards 773
Appendix D
27.15 Remedies 773
Performance and Payment Bonds (AIA Document
27.16 Award 776
A312-2010) D-1
27.17 Enforcement and Limited Judicial
Review 776 Appendix E
27.18 Insurers and Sureties 779 Standard Form of Agreement Between Contractor and
27.19 Arbitration and Litigation Compared 780 Subcontractor (AIA Document A401-2007) E-1
27.20 Alternative Dispute Resolution (ADR):
A Survey 783
Appendices F to I on Website
A. Arbitration 783
B. Mediation 786 Appendix F
C. Mediation-Arbitration 787 Construction Industry Arbitration Rules and Mediation
D. Mini-Trials 788 Procedures (Including Procedures for Large, Complex
E. Dispute Review Board 788 Construction Disputes) (American Arbitration
F. Project Neutral 789 Association, effective October 1, 2009) F-1
G. Project Counsel 789
H. Partnering 789 Appendix G
I. Conflict Manager 789 Standard Form of Agreement Between Owner and
J. Court-Appointed Arbitrators: Adjudicator Engineer for Professional Services (EJCDC Document
(Great Britain) 790 E-500 (2008)) G-1
K. Multi-Tier Systems 790
L. Architect/Engineer Resolution 790 Appendix H
27.21 Adjuncts of Judicial Systems 790 Suggested Form of Agreement Between Owner and
A. Special Masters and Referees 791 Contractor for Construction Contract (Stipulated Price)
B. Summary Jury Trials 791 (EJCDC Document C-520 (2007)) H-1
C. Mediation 791
Appendix I
27.22 Public Contracts 791
Standard General Conditions of the Construction
A. Federal Procurement Contracts 792
Contract (EJCDC Document C-700 (2007)) I-1
B. State and Local Contracts 792
27.23 International Arbitration: FIDIC 794 Subject Index SI-1
Case Index CI-1
Preface
The primary focus of this edition, as in editions that pre- We provide many illustrations of how the legal rules
ceded it, is to provide a bridge for students, mainly archi- operate through summaries of actual cases and reproduc-
tectural and engineering students, but increasingly, those tion of some cases. We do this to demonstrate how legal
in business schools and law schools, between the academic rules work in practice, how most disputes are resolved by
world and the real world. We hope to provide a cushion the facts in the case, and, in the case of actual judicial
for the inevitable shock such a transition generates. The opinions, how judges decide cases.
world of the classroom, with its teachers and its books, is We seek not only to accurately describe the construc-
not the same as the world of construction with its devel- tion industry and the applicable law, but also to pro-
opers, owners, design professionals, contractors, building vide suggestions for reform. A proposal is made for the
inspectors, loan officers, and public officials that regulate major project participants, before commencement of the
the construction process. work, to enter into a Defect Response Agreement, under
This cushion requires that readers understand what is which they agree in advance to divide the cost of inevi-
law, how it is created, how it affects almost every activ- table defects, thereby precluding this issue from impeding
ity of human conduct, and how legal institutions oper- performance.2 Also, mechanics’ liens are a time-honored
ate. This cannot be accomplished through simply stating mainstay of the construction process, meant to guaran-
“the law.” It requires clear, concise, jargon-free text that tee payment of subcontractors, yet the question is asked
probes beneath the surface of legal rules to uncover why whether subcontractors would be better off if such liens
these rules developed as they did, outline arguments for were simply abolished.3
and against these rules, and examine how they work in Describing legal rules and how they operate is not an
practice. in-depth or exhaustive treatment of something as com-
This is a national textbook. We do not concentrate plex as Construction Law. Footnotes are one way to at
on the law of any particular state. It is difficult to state an least hint at greater complexity. With this in mind, let us
American rule with fifty states and a federal jurisdiction. express our footnote philosophy.
A few areas of law that are relevant to the Construction The primary role of footnotes is to provide authority
Process are exclusively regulated by federal law.1 Yet most for textual statements that we believe require documen-
disputes are governed by the law of each state. This does tation. Another function is to indicate a deeper level of
not mean that there are fifty rules. Those who survey the complexity of a legal problem without detracting from the
cases will find that there is a majority rule and one or primary explanation provided in the text. This leads to a
more minority rules. We will try to emphasize the majority third function of footnotes: to provide references that will
rule without ignoring that some states have provided a dif- enable the student, the researcher, or the practicing attor-
ferent legal solution. ney to dig more deeply into a particular legal problem.
1
As illustrations see Sections 8.09B (Occupational Safety and Health 2
Section 16.13.
Act) and 13.02–13.05 (Copyright and Patents). 3
Section 23.06.
xxi
xxii Preface
Footnote references can be statutes, regulations, or Four Main Organizational Changes

cases. In addition to these primary sources of law, refer-
ences can include the burgeoning secondary literature, 1. The chapters have been grouped into five parts: Part
texts and legal journals, that examine Construction A: Legal Framework of the Design and Construction
Law in depth and from a practical perspective. Finally, Process (Chapters 1–7); Part B: The Main Actors:
references can include techniques used by Standard The Prime Contractor and Design Professional
Construction Documents that have suggested solutions for (Chapters 8–13); Part C: Project Delivery Methods
many legal and practical problems. (Chapters 14–15); Part D: Performance Disputes:
Each of us has taught courses in Construction Law. We From Design to Termination (Chapters 16–24); and
have found that students often wish to do research into Part E: Risk Management and Dispute Resolution
legal problems. They are helped by footnote references (Chapters 25–27). A short overview of each part
we have provided. Legal research is not limited to law precedes the first chapter of that part.
students. We have found that students in architecture 2. To streamline the subject matter, the number of
and engineering schools also engage in legal research and chapters has been reduced from thirty-three to
that footnote references help them. In addition, lawyers twenty-seven. For the benefit of users accustomed
or design professionals handling legal materials in practice to prior editions, a Conversion Table is provided
have informed us that these references have helped them. both in the book (immediately after the Preface) and
in the Instructor’s Manual to show correspondence
Changes in the Ninth Edition: Overview between the chapters of the Eighth Edition and those
in the Ninth.
The main impetus for the Ninth Edition is to funda-
mentally update the book, both technologically and orga- 3. The Ninth Edition introduces many new sections
nizationally, to cover the issuance of new standard form consisting of either novel topics or (more commonly)
construction documents, and to incorporate legislative, materials previously scattered throughout the book.
administrative and judicial developments. Law, though it For example, the Eighth Edition discussed legal issues
seeks stability, is not static. New cases come pouring out pertinent to the prime contractor in different parts of
of the courts daily. Legislatures enact new statutes in every the book. These separate discussions (and new ones)
new session. Administrative agencies interpret those stat- are consolidated in the Ninth Edition in a new Section
utes with new regulations. Textbooks must accommodate 8.04, titled “The Prime Contractor,” as follows:
such changes.
Ninth Edition Eighth Edition
Technological Change: Dedicated Website Section Section
From a technological perspective, this edition for the 8.04A: An Industry Overview 8.02B
first time merges the written text with a dedicated website.
8.04B: Independent New material
This website has short questions which students can use
Contractor Status
as self-tests to ensure they understand each c hapter’s
basic content. This website also contains an article on 8.04C: Soil Conditions: 25.02
Frank Lloyd Wright found in the previous edition. Finally, The Common Law Rule
Appendices F through I can be found on the website. By 8.04D: Responsibility 28.05
shifting several appendices of standard form documents for Subcontractors
from the back of the book to the website, this edition is
8.04E: Project Safety 7.04
slimmer and easier for the student to carry around and
use. To access this website, go to www.cengagebrain.com. 8.04F: Acceptance Doctrine 7.03G, 14.09B
At the home page, type in the ISBN of this book (found
on the book’s back cover) in the search box at the top of 4. Each chapter now begins with an “overview” sec-
the page. This will take you to the product page where tion which explains to the student the content and
these resources can be found. p urpose of that chapter. By knowing the purpose and
Preface xxiii
general content of the upcoming chapter, the student • Chapter 6, on torts, includes an expanded discussion of
should have an easier time absorbing and under- the Restatement (Third) of Torts: Liability for Physical
standing the chapter’s material. and Emotional Harm, which was adopted in 2005.
This very influential work contains new definitions
of negligence and the duty of care, which are summa-
More Detailed Changes in rized and discussed.11 A new case analyzes the Third
the Ninth Edition Restatement’s statement of the duty of care as applied
to a construction case.12 Complimenting Chapter 4’s
Any book dealing with construction law should refer to
analysis of independent contractors, Chapter 6 exam-
the most current standard form documents. The updated
ines the independent contractor rule, which addresses
appendices incorporate new editions of these standard
liability of the employer of an independent contractor
form documents:
for torts committed by that contractor.13 A new section
• Appendix D consists of the American Institute of analyzes the economic loss rule and its limitation on
Architects (AIA) new standard form performance and the recovery of purely pecuniary losses in tort.14
payment bonds, Document A312-2010. • Chapter 7, regarding land use regulation and envi-
• Appendix F consists of the new Construction Industry ronmental law, provides an updated explanation of
Arbitration Rules and Mediation Procedures of the zoning law, including the modern paradigm of “smart
American Arbitration Association, revised and issued growth.”15 The environmental discussion includes new
on October 1, 2009. sections on the Clean Water Act and Clean Air Act.16
• Appendix G consists of the Engineers Joint Contracts • Chapter 8 provides an introduction to the construc-
Documents Committee’s (EJCDC) new edition of its tion process with focus on the owner, prime contractor,
version of an owner/engineer agreement, E-500 (2008). and the regulatory framework. As previously noted,
this edition gives much more prominence to the role
The major changes to the book’s chapters are provided
of the prime contractor.17 New language explicates the
here.
prime contractor’s status as independent contractor18
• Chapter 4, previously limited to the law of agency,
and its responsibility for project safety.19 It also includes
is now titled: “Agency and Employment.” New and
expanded discussion of construction lenders, including
expanded discussion of the employment relationship
liability to both the borrower and subcontractors. 20
covers the topics of workers’ compensation, 4 dual
In addition, Chapter 8 updates the regulatory system
employers,5 unions, and labor disruptions.6 Another
governing the construction industry, including building
new section addresses independent contractors—a key
codes,21 building inspections,22 and safety legislation—
employment tool in the construction industry.7
both state safe workplace statutes and federal and state
• Chapter 5, on contracts, includes a new case examin-
occupational safety and health laws.23 The effect of a
ing whether negotiations between a prime contractor
safety law violation on a tort lawsuit arising out of the
and subcontractor resulted in a binding subcontract.8
accident is also explored.24
It discusses how the Uniform Electronic Transactions
Act establishes electronic signatures as compliant 11
Sections 6.03C and F.
with the statute of frauds.9 Increasingly, legislatures 12
Section 6.03F.
are regulating the content of contracts for residential 13
Section 6.06.
improvements.10 14
Section 6.09.
15
Section 7.05.
16
Sections 7.06D and E.
17
Section 8.04.
4
Section 4.11A. 18
Section 8.04B.
5
Section 4.11B. 19
Section 8.04E.
6
Section 4.11C. 20
Section 8.05.
7
Section 4.12. 21
Section 8.08B.
8
Section 5.03B. 22
Section 8.08C.
9
Section 5.05B. 23
Section 8.09.
10
Section 5.05C. 24
Section 8.09C.
xxiv Preface
• Chapter 9 addresses licensing of the design profes- • Chapter 16 includes a new section exploring the ques-
sional and contractor. It includes a new discussion tion of who owns the cause of action for defective con-
of the responsibility of an architect or engineer who struction where the defective property has changed
applies the professional seal of another.25 ownership prior to completion of the lawsuit.39
• Chapter 10 analyzes the design professional/client • Chapter 17 examines whether a contractor or supplier
relationship. A new section reviews issues related to may bring a claim against a design professional for cre-
out-of-state practice, in which the design professional ating proprietary specifications.40
resides in a different state from where the project is • Chapter 21 includes new sections addressing “time is
located.26 of the essence” clauses,41 forensic scheduling (proving
• Chapter 11, devoted to design professional liability, is delay claims)42 and bonus/penalty clauses.43 It also fea-
substantially updated. One new section addresses the tures a new reproduced case on liquidated damages.44
professional standard and compliance with industry or • Chapter 26 introduces the new AIA standard form perfor-
professional ethics standards,27 another covers “green” mance and payment bonds, AIA Document A312-2010.
or sustainable design,28 and a third expands on an archi- A new section summarizes construction industry bonds
tect’s or engineer’s duty to warn.29 We include two new not for payment or performance.45 In addition, the sum-
reproduced cases which address design professional lia- mary of performance bonds has been entirely revised.46
bility to a contractor for negligent misrepresentation • Chapter 27, the final chapter, addresses alternative
and the economic loss rule defense to such a claim (one dispute resolution (ADR). Federal preemption of state
court rejecting the defense and the other adopting it).30 laws regulating the arbitration process receives updated
• Chapter 12 now gathers in one chapter defenses to discussion.47 A review of ADR within federal procure-
claims of design professional liability. ment contracts, including a 2011 recodification to the
• Chapter 13 updates the 1952 patent law with passage Contract Disputes Act, is explained.48
of the Leahy-Smith America Invents Act.31
• Chapter 14 includes an updated discussion of project Supplements for the Ninth Edition
delivery methods which are alternatives to design–bid–
build, in particular construction management32 and For instructors, there is an Instructor’s Manual providing
design–build.33 A new section explores the growing teaching recommendations and suggested problems for
field of public–private partnerships.34 students. For students, the student website contains self-
• Chapter 15, devoted to public contracts, includes a study questions designed to encourage understanding and
new discussion of what constitutes public work.35 The review of important topics.
competitive bidding process receives expanded analysis,36 For both instructors and students, the website contains
including the federal government’s use of “past perfor- Appendices F through I available also for download.
mance evaluations” to assess bidder prequalification.37
A new section explores public procurement reform.38 Legal Citations Format
Now, for our nonlawyer readers, let us outline the
mechanics of citing case decisions. Although legal cita-
25
Section 9.05E. tions seem complicated, they are, in reality, quite simple.
26
Section 10.16D. There are four elements to a citation. A simple citation
27
Section 11.03D.
28
Section 11.07B.
29
Section 11.08G. 39
Section 16.12K.
30
Section 11.08D. 40
Section 17.01C.
31
Section 13.05B. 41
Section 21.04G.
32
Section 14.07. 42
Section 21.05D.
33
Section 14.09. 43
Section 21.11.
34
Section 14.15. See also Section 23.06G. 44
Section 21.08B.
35
Section 15.02. 45
Section 26.03A.
36
Section 15.05. 46
Section 26.04.
37
Section 15.05D. 47
Section 27.05B.
38
Section 15.09. 48
Section 27.22A.
Preface xxv
would be Sniadach v. Family Finance Corp., 395 U.S. 337 Supreme Court (Kan.) and is also collected in the Pacific
(1969). First, the name of the case is given, usually with Reporter (P.2d).
the plaintiff (the person starting the lawsuit) listed first, States are increasingly abandoning the official reporter
followed by the defendant. “U.S.” is an abbreviation of the system and cite only to the West Regional Reporter System.
reporter system from which the case is taken, in this case An example is Smith v. Gilmer, 488 So.2d 1143 (La.App.1986).
the United States Supreme Court Reports. The number This citation, from the Southern Reporter, indicates that this
preceding the abbreviation of the reporter system (395) is was a decision of the Louisiana Court of Appeals (its inter-
the volume in which the case is located. The number fol- mediate appellate court) and that there is no official reporter
lowing the abbreviation of the reporter system (337) states system in Louisiana.
the page on which the case begins. The citation concludes Finally, two of the more populous states—California
with the year that the court announced the decision. and New York—have an unofficial reporter published by
Many significant reported appellate opinions come West that collects all the reported opinions from those
from the Federal Circuit Courts of Appeal. Moorehead states. In California, it is the California Reporter; in
Construction Co. v. City of Grand Forks, 508 F.2d 1008 New York, it is the New York Supplement. Decisions by
(8th Cir.1975) is illustrative. Following the name of the highest appellate court—in California, the Supreme
the parties, an abbreviation of the series of reports in Court, and in New York, the Court of Appeals—are found
which the opinion is contained (F.2d) (Federal Reporter, in the California Reporter and the New York Supplement,
Second Series) is given. Again, it is preceded by the vol- respectively, as well in the official and regional reports. For
ume (508) of the report. The reporter abbreviation is fol- example, the California Supreme Court case of Pollard v.
lowed by the page on which the case begins (1008). The Saxe and Yolles Dev. Co. is cited 12 Cal.3d 374, 525 P.2d
particular federal circuit court (8th) deciding the case 88, 115 Cal.Rptr. 648 (1974). “Cal” is the official reporter,
follows. The citation is completed by the year (1975) of Cal.2d being the second series of that reporter. “P.2d”
the decision. is the second series of the Pacific Reporter. “Cal.Rptr.”
A third type of federal court is the district court, the collects all California appellate cases, Supreme Court
trial court of general jurisdiction. Although state trial decisions as well as those of the intermediate California
court opinions (except those from New York) are not Courts of Appeal. Similarly, a decision by the New York
collected and published, some trial court opinions of Court of Appeals would be found in its official reporter
the federal district courts are published. An example is (N.Y. or N.Y.2d) and the West Regional Reports, the
Gevyn Construction Corp. v. United States, 357 F.Supp. 18 North Eastern Reporter (N.E. or N.E.2d) and the New
(S.D.N.Y.1972). The opinion is collected in the Federal York Supplement (N.Y.S., N.Y.S.2d, or N.Y.S.3d). The New
Supplement (F.Supp.). The name of the reporter series York Supplement also contains decisions of the New York
is preceded by the volume number of the report and fol- intermediate courts of appeal (the Appellate Division of
lowed by the page on which the opinion begins. This the Supreme Court) and the Supreme Court (the New
citation shows that the district court was the Southern York trial court). Intermediate appellate court decisions
District of New York (S.D.N.Y.). Larger states have differ- from these states would have only two citations—one
ent courts located in different cities. Again, the citation to the official reports and the other to the California
concludes with the date (1972) the opinion was issued. Reporter and the New York Supplement. Intermediate
To understand state court citations, it is essential to appellate court decisions from these states are not included
understand the role of the West Regional Reporter System. in the regional reports. (The Table of Abbreviations lists
At one time, most state citations had two citations—one citation references—see the endpapers of this book.)
to the official reporter system selected by the court and The number of reported appellate decisions has
the other to the unofficial reporter system, usually the increased greatly. Most reporter systems have gone into
West Regional Reporter System. West divided the states a second, third, or even fourth series of reports. This is
regionally and published sets of reporters based on these indicated by the citation in the Pollard case, which shows
regional classifications. If a state still has an official report that the official reporter is in the third series, the unof-
system, a typical citation would be Anco Construction ficial regional reporter is in the second series, and the
Co. v. City of Wichita, 233 Kan. 132, 660 P.2d 560 (1983). California Reporter was at that time still in its first series.
This citation indicates that the case came from the Kansas (It now is in its third series.)
xxvi Preface
The hierarchical nature of the court system means that Appreciations

parties receiving a decision by a lower-level court may try
to appeal the decision. The higher-level court has several Special thanks are given to several professors who
options. If it accepts the appeal, it usually either affirms reviewed the Eighth Edition and made suggestions
the lower court opinion or reverses it. This is indicated by for the Ninth: Charles Glagola, University of Florida;
the terms “aff’d” (affirmed) or “rev’d” (reversed) appearing Steve Goldblatt, University of Washington; Matthias
after the citation of the lower court decision. If the higher- Pearson, John Brown University; Marion Tuttle, New
level court refuses to hear the appeal, that is indicated in Jersey Institute of Technology; and Wendy Thomas
various ways: “review denied,” “appeal denied,” or “cert. Wendrowski, Boise State University. These reviewers
denied,” where “cert.” is short for the term “certiorari.” An have contributed ideas, suggestions, and new perspectives.
example is McDowell-Purcell, Inc. v. Manhattan Constr. Co., Preparation of this Ninth Edition was greatly enhanced by
383 F.Supp. 802 (N.D.Ala.1974), aff’d, 515 F.2d 1181 (5th their input, resulting in an improved, more manageable
Cir.1975), cert. denied, 424 U.S. 915 (1976). If the higher edition. Special thanks are also given to Frank Mahuta Jr.,
court opinion appears in the same year as the lower court Milwaukee School of Engineering, and Jonathan Sweet,
opinion, the date appears only once and at the end. An Esq., who greatly assisted in preparing ancillary materials
example from the New York court system is: J. P. Stevens & to this Ninth Edition.
Co. v. Rytex Corp., 41 A.D.2d 15, 340 N.Y.S.2d 933, aff’d, 34 Finally, a book of this size could not come to fruition
N.Y.2d 123, 312 N.E.2d 466, 356 N.Y.S.2d 278 (1974). This without the tireless efforts of the publisher’s staff; in par-
later case history is provided primarily for purposes of accu- ticular, Randall Adams, Hilda Gowans, Rose Kernan
racy and should not concern the student reader. and Shelly Gerger-Knechtl. Their professionalism and
On the very different stylistic matter of pronous, we generous patience never flagged. Working with them was
avoid the awkward “he or she” format. In many instances, a pleasure.
the actor is a corporation or government entity and the
neutral pronoun (“it”) is used. Otherwise, we alternate Justin Sweet
chapters: the male pronoun is used in odd chapters and Marc M. Schneier
the female pronoun in even chapters.
Conversion Table
Ninth Edition Eighth Edition

Chapter 1 Chapter 1
Chapter 2 Chapter 2
Chapter 3 Chapter 3
Chapter 4 Chapter 4
Chapter 5 Chapters 5 & 6
Chapter 6 Chapter 7
Chapter 7 Chapter 9
Chapter 8 Chapter 8 & Section 11.01
Chapter 9 Chapter 10
Chapter 10 Chapters 12 & 13 & Section 11.04
Chapter 12 Sections 14.09, 15.03
Chapter 15 Chapter 18 & Sections 11.03B, 23.03I
Chapter 25 Chapter 31 & Sections 23.05C, 24.08
Chapter 27 Chapters 29, 30
xxvii
About the Authors
Justin Sweet Marc M. Schneier

Justin Sweet received his BA (Literature) and LLB degrees For thirty years, Marc M. Schneier has been the Editor
from the University of Wisconsin in 1951 and 1953, of Construction Litigation Reporter, a national reporter
respectively. He was elected to Phi Beta Kappa and the analyzing legal developments in the construction industry,
Order of the Coif (honorary law). He served as executive which is published by Thomson Reuters/West. He was an
editor of the Wisconsin Law Review. He was admitted to Adjunct Professor of Construction Law at the University
the bar in Wisconsin and California. of San Francisco School of Law, has published numerous
From 1953 to 1954, he served in the Office of the articles in various legal journals, and provides consulting
Wisconsin Attorney General. From 1954 to 1957, he services. His first book was Construction Accident Law: A
was an officer in the Army Judge-Advocate Corps. He Comprehensive Guide to Legal Liability and Insurance Claims,
engaged in private practice in Milwaukee from 1957– published by the American Bar Association in 1999. He
1958. In 1958, he was invited to join the Faculty of Law wrote Understanding and Applying Construction Law as
at the University of California at Berkeley. He received part of the “Essentials of Construction Management”
tenure in 1963. He taught Contracts, Torts, Insurance, series published by the Informa Center for Professional
Marital Property, Restitution, Remedies, Family Law, Development in 2006. Prior to this Ninth Edition, he
and Contract Drafting. He was appointed John H. Boalt co-authored with Justin Sweet the Seventh and Eighth
Professor of Law. He took early retirement in 1994. Editions of Legal Aspects of Architecture, Engineering and
After retirement, he was appointed Professor of Law at the Construction Process—the Seventh Edition published
the Academic College of Netanya in Israel from 1995–2006 by Thomson/Nelson in 2004 and the Eighth Edition pub-
after which he received the title of Professor Emeritus. lished by Cengage Learning in 2009. Most recently, he
He has taught at law schools in Italy, Belgium, Norway, authored, Annotation, Tort Liability of Project Architect or
Switzerland, Singapore, and Hong Kong. Engineer for Economic Damages Suffered by Contractor or
He has written articles in many legal journals, many of Subcontractor, 61 A.L.R.6th 445 (2011).
which were collected in Sweet, Anthology of Construction Marc earned his B.A. in Philosophy at the University
Law Writings published by the American Bar Association of California, Berkeley, in 1978, and was elected as a
in 2010. He also wrote Sweet on Construction Law for the member of Phi Beta Kappa. He earned his J.D. from the
American Bar Association in 1997. University of California, Davis (King Hall), in 1981 and
Beginning in 2010, he has been writing about historic was awarded the Bureau of National Affairs Award for
cases in each issue of the Journal of Legal Affairs & Dispute academic performance. He practiced law in San Francisco
Resolution in Engineering and Construction. prior to being hired as Editor of Construction Litigation
He was the co-founder and director of the International Reporter. His website is buildinglaw.org.
Construction Conference. It met in Fribourg, Switzerland,
Berkeley, California and Washington D.C.
He has acted as an arbitrator and as an expert witness.
xxix
Part A
Legal Framework of the Design

and Construction Process
Part A of this book, encompassing chapters 1 through 7, provides the legal framework of the
design and construction process. This framework is the larger, societal context to the substantive
law applicable to the construction industry.
Chapter 1 Sources of Law: Varied and Dynamic

This chapter outlines the basic framework of the American legal system.
The United States has a federal legal system, meaning that both the federal
government and the individual states are sovereigns. All three branches of
government—legislative, executive and judicial—are sources of the law.
Chapter 2 he American Judicial System: A Forum for Dispute

T
Resolution
This chapter provides a more detailed review of the United States judicial sys-
tem. After a description of the state and federal court systems, the chapter then
turns to the mechanics of litigation: hiring an attorney; which court is avail-
able to the litigants; the pre-trial and trial process; and the trial judgment.
Chapter 3 orms of Business Association: Organizing to

F
Accomplish Objectives
This chapter reviews the basic forms of business association that are most rele-
vant to the construction industry.
Chapter 4 Agency and Employment

This chapter discusses the three major forms of employment by businesses
involved in the construction industry: agent, employee or independent con-
tractor. Each form of employment has its own legal characteristics and conse-
quences for the hirer.
Chapter 5 Contracts: From Formation to Breach

This chapter provides an introduction to the law of contracts. A contract is a
binding agreement that defines the rights and obligations of the signatories.
1
2 Part A / Legal Framework of the Design and Construction Process
Chapter 6 Torts: Legal Relations Not Arising from Contract

Tort law defines civil (non-criminal) rights and obligations independent of any
contract or agreement. These rights and obligations are imposed (or granted)
by society.
Chapter 7 estrictions on Ownership: Land Use Controls and

R
Environmental Law
This chapter addresses limits on land ownership. Most restrictions are through
public land use controls. Environmental law provides an overlapping layer of
land ownership limitations.
Chapter one
Sources of Law:
Varied and Dynamic
Section 1.00 Chapter Overview throw him out of the house after it is built, it would take an
adventurous or powerful person to invest time and materials
The United States has a federal legal system, meaning that to build the house. Similarly, workers would be reluctant to
both the federal government and the individual states are pound nails or pour concrete if they were fearful of being
sovereigns. The ultimate source of law is each sovereign’s attacked by armed gangs. Here, criminal law protects both
constitution. Government is divided into three branches: the property owner from those who might take away his
legislative, executive (including administrative agencies), property and the workers from those who might harm them.
and judicial. All three branches are sources of the law. Similarly, contractors would hesitate to invest their
In addition to governments, private persons or organi- time or money to build houses if they did not believe they
zations are sources of law. Private persons, by entering into could use the civil courts to enforce their contracts and
a contract, create a document with legal significance. In help them collect for their work if owners did not pay
the construction industry, private organizations (such as them. Workers would be less inclined to work on a house
the American Institute of Architects) have created stan- if they were not confident they could use the civil courts
dard form contracts, which (if adopted for a building to collect for work they had done, or to compensate them
project) become the legal document that governs the if they were injured on the job.
project participants. The Restatements of the Law are Finally, some would be unwilling to engage in construc-
codifications of legal rules, which may provide the possibil- tion activity if they were not confident that an impartial
ity of a national law shared by all or most of the states. forum would be available if disputes arose over perfor-
mance. Were the state not to provide such a forum, partici-
pants might settle their disputes by force.
Section 1.01 Relevance Today various sources of law seek to fill these needs.
These sources of law are spotlighted in this chapter.
Law consists of coercive rules created and enforced by the Chapter 2 focuses on the U.S. judicial system.
state to regulate the citizens of the state and provide for
the general welfare of the state and its citizens. Law is an
integral part of modern society and plays a major role in
the construction process. Because this text examines the
Section 1.02 The Federal System
intersection between law and the construction process, it
is important to be aware of the various sources of law and Very large countries, such as the United States, Canada,
the characteristics and functions of the law. Australia, Nigeria, and India, employ a federal system of
Many illustrations can be provided; suppose a man who government. Even smaller countries, particularly those
owns property wishes to build a house to provide shelter with distinct religious, linguistic, ethnic, or national com-
for his family. Without assurance that stronger people will munities (for example, Switzerland), may choose to live
not use force to seize materials with which he is building or under a federal system. A federal system of government
3
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DANCE ON STILTS AT THE GIRLS’ UNYAGO, NIUCHI
Newala, too, suffers from the distance of its water-supply—at least

the Newala of to-day does; there was once another Newala in a lovely
valley at the foot of the plateau. I visited it and found scarcely a trace
of houses, only a Christian cemetery, with the graves of several
missionaries and their converts, remaining as a monument of its
former glories. But the surroundings are wonderfully beautiful. A
thick grove of splendid mango-trees closes in the weather-worn
crosses and headstones; behind them, combining the useful and the
agreeable, is a whole plantation of lemon-trees covered with ripe
fruit; not the small African kind, but a much larger and also juicier
imported variety, which drops into the hands of the passing traveller,
without calling for any exertion on his part. Old Newala is now under
the jurisdiction of the native pastor, Daudi, at Chingulungulu, who,
as I am on very friendly terms with him, allows me, as a matter of
course, the use of this lemon-grove during my stay at Newala.
FEET MUTILATED BY THE RAVAGES OF THE “JIGGER”
(Sarcopsylla penetrans)
The water-supply of New Newala is in the bottom of the valley,

some 1,600 feet lower down. The way is not only long and fatiguing,
but the water, when we get it, is thoroughly bad. We are suffering not
only from this, but from the fact that the arrangements at Newala are
nothing short of luxurious. We have a separate kitchen—a hut built
against the boma palisade on the right of the baraza, the interior of
which is not visible from our usual position. Our two cooks were not
long in finding this out, and they consequently do—or rather neglect
to do—what they please. In any case they do not seem to be very
particular about the boiling of our drinking-water—at least I can
attribute to no other cause certain attacks of a dysenteric nature,
from which both Knudsen and I have suffered for some time. If a
man like Omari has to be left unwatched for a moment, he is capable
of anything. Besides this complaint, we are inconvenienced by the
state of our nails, which have become as hard as glass, and crack on
the slightest provocation, and I have the additional infliction of
pimples all over me. As if all this were not enough, we have also, for
the last week been waging war against the jigger, who has found his
Eldorado in the hot sand of the Makonde plateau. Our men are seen
all day long—whenever their chronic colds and the dysentery likewise
raging among them permit—occupied in removing this scourge of
Africa from their feet and trying to prevent the disastrous
consequences of its presence. It is quite common to see natives of
this place with one or two toes missing; many have lost all their toes,
or even the whole front part of the foot, so that a well-formed leg
ends in a shapeless stump. These ravages are caused by the female of
Sarcopsylla penetrans, which bores its way under the skin and there
develops an egg-sac the size of a pea. In all books on the subject, it is
stated that one’s attention is called to the presence of this parasite by
an intolerable itching. This agrees very well with my experience, so
far as the softer parts of the sole, the spaces between and under the
toes, and the side of the foot are concerned, but if the creature
penetrates through the harder parts of the heel or ball of the foot, it
may escape even the most careful search till it has reached maturity.
Then there is no time to be lost, if the horrible ulceration, of which
we see cases by the dozen every day, is to be prevented. It is much
easier, by the way, to discover the insect on the white skin of a
European than on that of a native, on which the dark speck scarcely
shows. The four or five jiggers which, in spite of the fact that I
constantly wore high laced boots, chose my feet to settle in, were
taken out for me by the all-accomplished Knudsen, after which I
thought it advisable to wash out the cavities with corrosive
sublimate. The natives have a different sort of disinfectant—they fill
the hole with scraped roots. In a tiny Makua village on the slope of
the plateau south of Newala, we saw an old woman who had filled all
the spaces under her toe-nails with powdered roots by way of
prophylactic treatment. What will be the result, if any, who can say?
The rest of the many trifling ills which trouble our existence are
really more comic than serious. In the absence of anything else to
smoke, Knudsen and I at last opened a box of cigars procured from
the Indian store-keeper at Lindi, and tried them, with the most
distressing results. Whether they contain opium or some other
narcotic, neither of us can say, but after the tenth puff we were both
“off,” three-quarters stupefied and unspeakably wretched. Slowly we
recovered—and what happened next? Half-an-hour later we were
once more smoking these poisonous concoctions—so insatiable is the
craving for tobacco in the tropics.
Even my present attacks of fever scarcely deserve to be taken
seriously. I have had no less than three here at Newala, all of which
have run their course in an incredibly short time. In the early
afternoon, I am busy with my old natives, asking questions and
making notes. The strong midday coffee has stimulated my spirits to
an extraordinary degree, the brain is active and vigorous, and work
progresses rapidly, while a pleasant warmth pervades the whole
body. Suddenly this gives place to a violent chill, forcing me to put on
my overcoat, though it is only half-past three and the afternoon sun
is at its hottest. Now the brain no longer works with such acuteness
and logical precision; more especially does it fail me in trying to
establish the syntax of the difficult Makua language on which I have
ventured, as if I had not enough to do without it. Under the
circumstances it seems advisable to take my temperature, and I do
so, to save trouble, without leaving my seat, and while going on with
my work. On examination, I find it to be 101·48°. My tutors are
abruptly dismissed and my bed set up in the baraza; a few minutes
later I am in it and treating myself internally with hot water and
lemon-juice.
Three hours later, the thermometer marks nearly 104°, and I make
them carry me back into the tent, bed and all, as I am now perspiring
heavily, and exposure to the cold wind just beginning to blow might
mean a fatal chill. I lie still for a little while, and then find, to my
great relief, that the temperature is not rising, but rather falling. This
is about 7.30 p.m. At 8 p.m. I find, to my unbounded astonishment,
that it has fallen below 98·6°, and I feel perfectly well. I read for an
hour or two, and could very well enjoy a smoke, if I had the
wherewithal—Indian cigars being out of the question.
Having no medical training, I am at a loss to account for this state
of things. It is impossible that these transitory attacks of high fever
should be malarial; it seems more probable that they are due to a
kind of sunstroke. On consulting my note-book, I become more and
more inclined to think this is the case, for these attacks regularly
follow extreme fatigue and long exposure to strong sunshine. They at
least have the advantage of being only short interruptions to my
work, as on the following morning I am always quite fresh and fit.
My treasure of a cook is suffering from an enormous hydrocele which
makes it difficult for him to get up, and Moritz is obliged to keep in
the dark on account of his inflamed eyes. Knudsen’s cook, a raw boy
from somewhere in the bush, knows still less of cooking than Omari;
consequently Nils Knudsen himself has been promoted to the vacant
post. Finding that we had come to the end of our supplies, he began
by sending to Chingulungulu for the four sucking-pigs which we had
bought from Matola and temporarily left in his charge; and when
they came up, neatly packed in a large crate, he callously slaughtered
the biggest of them. The first joint we were thoughtless enough to
entrust for roasting to Knudsen’s mshenzi cook, and it was
consequently uneatable; but we made the rest of the animal into a
jelly which we ate with great relish after weeks of underfeeding,
consuming incredible helpings of it at both midday and evening
meals. The only drawback is a certain want of variety in the tinned
vegetables. Dr. Jäger, to whom the Geographical Commission
entrusted the provisioning of the expeditions—mine as well as his
own—because he had more time on his hands than the rest of us,
seems to have laid in a huge stock of Teltow turnips,[46] an article of
food which is all very well for occasional use, but which quickly palls
when set before one every day; and we seem to have no other tins
left. There is no help for it—we must put up with the turnips; but I
am certain that, once I am home again, I shall not touch them for ten
years to come.
Amid all these minor evils, which, after all, go to make up the
genuine flavour of Africa, there is at least one cheering touch:
Knudsen has, with the dexterity of a skilled mechanic, repaired my 9
× 12 cm. camera, at least so far that I can use it with a little care.
How, in the absence of finger-nails, he was able to accomplish such a
ticklish piece of work, having no tool but a clumsy screw-driver for
taking to pieces and putting together again the complicated
mechanism of the instantaneous shutter, is still a mystery to me; but
he did it successfully. The loss of his finger-nails shows him in a light
contrasting curiously enough with the intelligence evinced by the
above operation; though, after all, it is scarcely surprising after his
ten years’ residence in the bush. One day, at Lindi, he had occasion
to wash a dog, which must have been in need of very thorough
cleansing, for the bottle handed to our friend for the purpose had an
extremely strong smell. Having performed his task in the most
conscientious manner, he perceived with some surprise that the dog
did not appear much the better for it, and was further surprised by
finding his own nails ulcerating away in the course of the next few
days. “How was I to know that carbolic acid has to be diluted?” he
mutters indignantly, from time to time, with a troubled gaze at his
mutilated finger-tips.
Since we came to Newala we have been making excursions in all
directions through the surrounding country, in accordance with old
habit, and also because the akida Sefu did not get together the tribal
elders from whom I wanted information so speedily as he had
promised. There is, however, no harm done, as, even if seen only
from the outside, the country and people are interesting enough.
The Makonde plateau is like a large rectangular table rounded off
at the corners. Measured from the Indian Ocean to Newala, it is
about seventy-five miles long, and between the Rovuma and the
Lukuledi it averages fifty miles in breadth, so that its superficial area
is about two-thirds of that of the kingdom of Saxony. The surface,
however, is not level, but uniformly inclined from its south-western
edge to the ocean. From the upper edge, on which Newala lies, the
eye ranges for many miles east and north-east, without encountering
any obstacle, over the Makonde bush. It is a green sea, from which
here and there thick clouds of smoke rise, to show that it, too, is
inhabited by men who carry on their tillage like so many other
primitive peoples, by cutting down and burning the bush, and
manuring with the ashes. Even in the radiant light of a tropical day
such a fire is a grand sight.
Much less effective is the impression produced just now by the
great western plain as seen from the edge of the plateau. As often as
time permits, I stroll along this edge, sometimes in one direction,
sometimes in another, in the hope of finding the air clear enough to
let me enjoy the view; but I have always been disappointed.
Wherever one looks, clouds of smoke rise from the burning bush,
and the air is full of smoke and vapour. It is a pity, for under more
favourable circumstances the panorama of the whole country up to
the distant Majeje hills must be truly magnificent. It is of little use
taking photographs now, and an outline sketch gives a very poor idea
of the scenery. In one of these excursions I went out of my way to
make a personal attempt on the Makonde bush. The present edge of
the plateau is the result of a far-reaching process of destruction
through erosion and denudation. The Makonde strata are
everywhere cut into by ravines, which, though short, are hundreds of
yards in depth. In consequence of the loose stratification of these
beds, not only are the walls of these ravines nearly vertical, but their
upper end is closed by an equally steep escarpment, so that the
western edge of the Makonde plateau is hemmed in by a series of
deep, basin-like valleys. In order to get from one side of such a ravine
to the other, I cut my way through the bush with a dozen of my men.
It was a very open part, with more grass than scrub, but even so the
short stretch of less than two hundred yards was very hard work; at
the end of it the men’s calicoes were in rags and they themselves
bleeding from hundreds of scratches, while even our strong khaki
suits had not escaped scatheless.
NATIVE PATH THROUGH THE MAKONDE BUSH, NEAR

MAHUTA
I see increasing reason to believe that the view formed some time
back as to the origin of the Makonde bush is the correct one. I have
no doubt that it is not a natural product, but the result of human
occupation. Those parts of the high country where man—as a very
slight amount of practice enables the eye to perceive at once—has not
yet penetrated with axe and hoe, are still occupied by a splendid
timber forest quite able to sustain a comparison with our mixed
forests in Germany. But wherever man has once built his hut or tilled
his field, this horrible bush springs up. Every phase of this process
may be seen in the course of a couple of hours’ walk along the main
road. From the bush to right or left, one hears the sound of the axe—
not from one spot only, but from several directions at once. A few
steps further on, we can see what is taking place. The brush has been
cut down and piled up in heaps to the height of a yard or more,
between which the trunks of the large trees stand up like the last
pillars of a magnificent ruined building. These, too, present a
melancholy spectacle: the destructive Makonde have ringed them—
cut a broad strip of bark all round to ensure their dying off—and also
piled up pyramids of brush round them. Father and son, mother and
son-in-law, are chopping away perseveringly in the background—too
busy, almost, to look round at the white stranger, who usually excites
so much interest. If you pass by the same place a week later, the piles
of brushwood have disappeared and a thick layer of ashes has taken
the place of the green forest. The large trees stretch their
smouldering trunks and branches in dumb accusation to heaven—if
they have not already fallen and been more or less reduced to ashes,
perhaps only showing as a white stripe on the dark ground.
This work of destruction is carried out by the Makonde alike on the
virgin forest and on the bush which has sprung up on sites already
cultivated and deserted. In the second case they are saved the trouble
of burning the large trees, these being entirely absent in the
secondary bush.
After burning this piece of forest ground and loosening it with the
hoe, the native sows his corn and plants his vegetables. All over the
country, he goes in for bed-culture, which requires, and, in fact,
receives, the most careful attention. Weeds are nowhere tolerated in
the south of German East Africa. The crops may fail on the plains,
where droughts are frequent, but never on the plateau with its
abundant rains and heavy dews. Its fortunate inhabitants even have
the satisfaction of seeing the proud Wayao and Wamakua working
for them as labourers, driven by hunger to serve where they were
accustomed to rule.
But the light, sandy soil is soon exhausted, and would yield no
harvest the second year if cultivated twice running. This fact has
been familiar to the native for ages; consequently he provides in
time, and, while his crop is growing, prepares the next plot with axe
and firebrand. Next year he plants this with his various crops and
lets the first piece lie fallow. For a short time it remains waste and
desolate; then nature steps in to repair the destruction wrought by
man; a thousand new growths spring out of the exhausted soil, and
even the old stumps put forth fresh shoots. Next year the new growth
is up to one’s knees, and in a few years more it is that terrible,
impenetrable bush, which maintains its position till the black
occupier of the land has made the round of all the available sites and
come back to his starting point.
The Makonde are, body and soul, so to speak, one with this bush.
According to my Yao informants, indeed, their name means nothing
else but “bush people.” Their own tradition says that they have been
settled up here for a very long time, but to my surprise they laid great
stress on an original immigration. Their old homes were in the
south-east, near Mikindani and the mouth of the Rovuma, whence
their peaceful forefathers were driven by the continual raids of the
Sakalavas from Madagascar and the warlike Shirazis[47] of the coast,
to take refuge on the almost inaccessible plateau. I have studied
African ethnology for twenty years, but the fact that changes of
population in this apparently quiet and peaceable corner of the earth
could have been occasioned by outside enterprises taking place on
the high seas, was completely new to me. It is, no doubt, however,
correct.
The charming tribal legend of the Makonde—besides informing us
of other interesting matters—explains why they have to live in the
thickest of the bush and a long way from the edge of the plateau,
instead of making their permanent homes beside the purling brooks
and springs of the low country.
“The place where the tribe originated is Mahuta, on the southern
side of the plateau towards the Rovuma, where of old time there was
nothing but thick bush. Out of this bush came a man who never
washed himself or shaved his head, and who ate and drank but little.
He went out and made a human figure from the wood of a tree
growing in the open country, which he took home to his abode in the
bush and there set it upright. In the night this image came to life and
was a woman. The man and woman went down together to the
Rovuma to wash themselves. Here the woman gave birth to a still-
born child. They left that place and passed over the high land into the
valley of the Mbemkuru, where the woman had another child, which
was also born dead. Then they returned to the high bush country of
Mahuta, where the third child was born, which lived and grew up. In
course of time, the couple had many more children, and called
themselves Wamatanda. These were the ancestral stock of the
Makonde, also called Wamakonde,[48] i.e., aborigines. Their
forefather, the man from the bush, gave his children the command to
bury their dead upright, in memory of the mother of their race who
was cut out of wood and awoke to life when standing upright. He also
warned them against settling in the valleys and near large streams,
for sickness and death dwelt there. They were to make it a rule to
have their huts at least an hour’s walk from the nearest watering-
place; then their children would thrive and escape illness.”
The explanation of the name Makonde given by my informants is
somewhat different from that contained in the above legend, which I
extract from a little book (small, but packed with information), by
Pater Adams, entitled Lindi und sein Hinterland. Otherwise, my
results agree exactly with the statements of the legend. Washing?
Hapana—there is no such thing. Why should they do so? As it is, the
supply of water scarcely suffices for cooking and drinking; other
people do not wash, so why should the Makonde distinguish himself
by such needless eccentricity? As for shaving the head, the short,
woolly crop scarcely needs it,[49] so the second ancestral precept is
likewise easy enough to follow. Beyond this, however, there is
nothing ridiculous in the ancestor’s advice. I have obtained from
various local artists a fairly large number of figures carved in wood,
ranging from fifteen to twenty-three inches in height, and
representing women belonging to the great group of the Mavia,
Makonde, and Matambwe tribes. The carving is remarkably well
done and renders the female type with great accuracy, especially the
keloid ornamentation, to be described later on. As to the object and
meaning of their works the sculptors either could or (more probably)
would tell me nothing, and I was forced to content myself with the
scanty information vouchsafed by one man, who said that the figures
were merely intended to represent the nembo—the artificial
deformations of pelele, ear-discs, and keloids. The legend recorded
by Pater Adams places these figures in a new light. They must surely
be more than mere dolls; and we may even venture to assume that
they are—though the majority of present-day Makonde are probably
unaware of the fact—representations of the tribal ancestress.
The references in the legend to the descent from Mahuta to the
Rovuma, and to a journey across the highlands into the Mbekuru
valley, undoubtedly indicate the previous history of the tribe, the
travels of the ancestral pair typifying the migrations of their
descendants. The descent to the neighbouring Rovuma valley, with
its extraordinary fertility and great abundance of game, is intelligible
at a glance—but the crossing of the Lukuledi depression, the ascent
to the Rondo Plateau and the descent to the Mbemkuru, also lie
within the bounds of probability, for all these districts have exactly
the same character as the extreme south. Now, however, comes a
point of especial interest for our bacteriological age. The primitive
Makonde did not enjoy their lives in the marshy river-valleys.
Disease raged among them, and many died. It was only after they
had returned to their original home near Mahuta, that the health
conditions of these people improved. We are very apt to think of the
African as a stupid person whose ignorance of nature is only equalled
by his fear of it, and who looks on all mishaps as caused by evil
spirits and malignant natural powers. It is much more correct to
assume in this case that the people very early learnt to distinguish
districts infested with malaria from those where it is absent.
This knowledge is crystallized in the
ancestral warning against settling in the
valleys and near the great waters, the
dwelling-places of disease and death. At the
same time, for security against the hostile
Mavia south of the Rovuma, it was enacted
that every settlement must be not less than a
certain distance from the southern edge of the
plateau. Such in fact is their mode of life at the
present day. It is not such a bad one, and
certainly they are both safer and more
comfortable than the Makua, the recent
intruders from the south, who have made USUAL METHOD OF
good their footing on the western edge of the CLOSING HUT-DOOR
plateau, extending over a fairly wide belt of
country. Neither Makua nor Makonde show in their dwellings
anything of the size and comeliness of the Yao houses in the plain,
especially at Masasi, Chingulungulu and Zuza’s. Jumbe Chauro, a
Makonde hamlet not far from Newala, on the road to Mahuta, is the
most important settlement of the tribe I have yet seen, and has fairly
spacious huts. But how slovenly is their construction compared with
the palatial residences of the elephant-hunters living in the plain.
The roofs are still more untidy than in the general run of huts during
the dry season, the walls show here and there the scanty beginnings
or the lamentable remains of the mud plastering, and the interior is a
veritable dog-kennel; dirt, dust and disorder everywhere. A few huts
only show any attempt at division into rooms, and this consists
merely of very roughly-made bamboo partitions. In one point alone
have I noticed any indication of progress—in the method of fastening
the door. Houses all over the south are secured in a simple but
ingenious manner. The door consists of a set of stout pieces of wood
or bamboo, tied with bark-string to two cross-pieces, and moving in
two grooves round one of the door-posts, so as to open inwards. If
the owner wishes to leave home, he takes two logs as thick as a man’s
upper arm and about a yard long. One of these is placed obliquely
against the middle of the door from the inside, so as to form an angle
of from 60° to 75° with the ground. He then places the second piece
horizontally across the first, pressing it downward with all his might.
It is kept in place by two strong posts planted in the ground a few
inches inside the door. This fastening is absolutely safe, but of course
cannot be applied to both doors at once, otherwise how could the
owner leave or enter his house? I have not yet succeeded in finding
out how the back door is fastened.
MAKONDE LOCK AND KEY AT JUMBE CHAURO

This is the general way of closing a house. The Makonde at Jumbe
Chauro, however, have a much more complicated, solid and original
one. Here, too, the door is as already described, except that there is
only one post on the inside, standing by itself about six inches from
one side of the doorway. Opposite this post is a hole in the wall just
large enough to admit a man’s arm. The door is closed inside by a
large wooden bolt passing through a hole in this post and pressing
with its free end against the door. The other end has three holes into
which fit three pegs running in vertical grooves inside the post. The
door is opened with a wooden key about a foot long, somewhat
curved and sloped off at the butt; the other end has three pegs
corresponding to the holes, in the bolt, so that, when it is thrust
through the hole in the wall and inserted into the rectangular
opening in the post, the pegs can be lifted and the bolt drawn out.[50]
MODE OF INSERTING THE KEY
With no small pride first one householder and then a second

showed me on the spot the action of this greatest invention of the
Makonde Highlands. To both with an admiring exclamation of
“Vizuri sana!” (“Very fine!”). I expressed the wish to take back these
marvels with me to Ulaya, to show the Wazungu what clever fellows
the Makonde are. Scarcely five minutes after my return to camp at
Newala, the two men came up sweating under the weight of two
heavy logs which they laid down at my feet, handing over at the same
time the keys of the fallen fortress. Arguing, logically enough, that if
the key was wanted, the lock would be wanted with it, they had taken
their axes and chopped down the posts—as it never occurred to them
to dig them out of the ground and so bring them intact. Thus I have
two badly damaged specimens, and the owners, instead of praise,
come in for a blowing-up.
The Makua huts in the environs of Newala are especially
miserable; their more than slovenly construction reminds one of the
temporary erections of the Makua at Hatia’s, though the people here
have not been concerned in a war. It must therefore be due to
congenital idleness, or else to the absence of a powerful chief. Even
the baraza at Mlipa’s, a short hour’s walk south-east of Newala,
shares in this general neglect. While public buildings in this country
are usually looked after more or less carefully, this is in evident
danger of being blown over by the first strong easterly gale. The only
attractive object in this whole district is the grave of the late chief
Mlipa. I visited it in the morning, while the sun was still trying with
partial success to break through the rolling mists, and the circular
grove of tall euphorbias, which, with a broken pot, is all that marks
the old king’s resting-place, impressed one with a touch of pathos.
Even my very materially-minded carriers seemed to feel something
of the sort, for instead of their usual ribald songs, they chanted
solemnly, as we marched on through the dense green of the Makonde
bush:—
“We shall arrive with the great master; we stand in a row and have
no fear about getting our food and our money from the Serkali (the
Government). We are not afraid; we are going along with the great
master, the lion; we are going down to the coast and back.”
With regard to the characteristic features of the various tribes here
on the western edge of the plateau, I can arrive at no other
conclusion than the one already come to in the plain, viz., that it is
impossible for anyone but a trained anthropologist to assign any
given individual at once to his proper tribe. In fact, I think that even
an anthropological specialist, after the most careful examination,
might find it a difficult task to decide. The whole congeries of peoples
collected in the region bounded on the west by the great Central
African rift, Tanganyika and Nyasa, and on the east by the Indian
Ocean, are closely related to each other—some of their languages are
only distinguished from one another as dialects of the same speech,
and no doubt all the tribes present the same shape of skull and
structure of skeleton. Thus, surely, there can be no very striking
differences in outward appearance.
Even did such exist, I should have no time
to concern myself with them, for day after day,
I have to see or hear, as the case may be—in
any case to grasp and record—an
extraordinary number of ethnographic
phenomena. I am almost disposed to think it
fortunate that some departments of inquiry, at
least, are barred by external circumstances.
Chief among these is the subject of iron-
working. We are apt to think of Africa as a
country where iron ore is everywhere, so to
speak, to be picked up by the roadside, and
where it would be quite surprising if the
inhabitants had not learnt to smelt the
material ready to their hand. In fact, the
knowledge of this art ranges all over the
continent, from the Kabyles in the north to the
Kafirs in the south. Here between the Rovuma
and the Lukuledi the conditions are not so
favourable. According to the statements of the
Makonde, neither ironstone nor any other
form of iron ore is known to them. They have
not therefore advanced to the art of smelting
the metal, but have hitherto bought all their
THE ANCESTRESS OF
THE MAKONDE
iron implements from neighbouring tribes.
Even in the plain the inhabitants are not much
better off. Only one man now living is said to
understand the art of smelting iron. This old fundi lives close to
Huwe, that isolated, steep-sided block of granite which rises out of
the green solitude between Masasi and Chingulungulu, and whose
jagged and splintered top meets the traveller’s eye everywhere. While
still at Masasi I wished to see this man at work, but was told that,
frightened by the rising, he had retired across the Rovuma, though
he would soon return. All subsequent inquiries as to whether the
fundi had come back met with the genuine African answer, “Bado”
(“Not yet”).
BRAZIER
Some consolation was afforded me by a brassfounder, whom I

came across in the bush near Akundonde’s. This man is the favourite
of women, and therefore no doubt of the gods; he welds the glittering
brass rods purchased at the coast into those massive, heavy rings
which, on the wrists and ankles of the local fair ones, continually give
me fresh food for admiration. Like every decent master-craftsman he
had all his tools with him, consisting of a pair of bellows, three
crucibles and a hammer—nothing more, apparently. He was quite
willing to show his skill, and in a twinkling had fixed his bellows on
the ground. They are simply two goat-skins, taken off whole, the four
legs being closed by knots, while the upper opening, intended to
admit the air, is kept stretched by two pieces of wood. At the lower
end of the skin a smaller opening is left into which a wooden tube is
stuck. The fundi has quickly borrowed a heap of wood-embers from
the nearest hut; he then fixes the free ends of the two tubes into an
earthen pipe, and clamps them to the ground by means of a bent
piece of wood. Now he fills one of his small clay crucibles, the dross
on which shows that they have been long in use, with the yellow
material, places it in the midst of the embers, which, at present are
only faintly glimmering, and begins his work. In quick alternation
the smith’s two hands move up and down with the open ends of the
bellows; as he raises his hand he holds the slit wide open, so as to let
the air enter the skin bag unhindered. In pressing it down he closes
the bag, and the air puffs through the bamboo tube and clay pipe into
the fire, which quickly burns up. The smith, however, does not keep
on with this work, but beckons to another man, who relieves him at
the bellows, while he takes some more tools out of a large skin pouch
carried on his back. I look on in wonder as, with a smooth round
stick about the thickness of a finger, he bores a few vertical holes into
the clean sand of the soil. This should not be difficult, yet the man
seems to be taking great pains over it. Then he fastens down to the
ground, with a couple of wooden clamps, a neat little trough made by
splitting a joint of bamboo in half, so that the ends are closed by the
two knots. At last the yellow metal has attained the right consistency,
and the fundi lifts the crucible from the fire by means of two sticks
split at the end to serve as tongs. A short swift turn to the left—a
tilting of the crucible—and the molten brass, hissing and giving forth
clouds of smoke, flows first into the bamboo mould and then into the
holes in the ground.
The technique of this backwoods craftsman may not be very far
advanced, but it cannot be denied that he knows how to obtain an
adequate result by the simplest means. The ladies of highest rank in
this country—that is to say, those who can afford it, wear two kinds
of these massive brass rings, one cylindrical, the other semicircular
in section. The latter are cast in the most ingenious way in the
bamboo mould, the former in the circular hole in the sand. It is quite
a simple matter for the fundi to fit these bars to the limbs of his fair
customers; with a few light strokes of his hammer he bends the
pliable brass round arm or ankle without further inconvenience to
the wearer.
SHAPING THE POT
SMOOTHING WITH MAIZE-COB
CUTTING THE EDGE

FINISHING THE BOTTOM
LAST SMOOTHING BEFORE

BURNING
FIRING THE BRUSH-PILE

LIGHTING THE FARTHER SIDE OF
THE PILE
TURNING THE RED-HOT VESSEL
NYASA WOMAN MAKING POTS AT MASASI

Pottery is an art which must always and everywhere excite the
interest of the student, just because it is so intimately connected with
the development of human culture, and because its relics are one of
the principal factors in the reconstruction of our own condition in
prehistoric times. I shall always remember with pleasure the two or
three afternoons at Masasi when Salim Matola’s mother, a slightly-
built, graceful, pleasant-looking woman, explained to me with
touching patience, by means of concrete illustrations, the ceramic art
of her people. The only implements for this primitive process were a
lump of clay in her left hand, and in the right a calabash containing
the following valuables: the fragment of a maize-cob stripped of all
its grains, a smooth, oval pebble, about the size of a pigeon’s egg, a
few chips of gourd-shell, a bamboo splinter about the length of one’s
hand, a small shell, and a bunch of some herb resembling spinach.
Nothing more. The woman scraped with the
shell a round, shallow hole in the soft, fine
sand of the soil, and, when an active young
girl had filled the calabash with water for her,
she began to knead the clay. As if by magic it
gradually assumed the shape of a rough but
already well-shaped vessel, which only wanted
a little touching up with the instruments
before mentioned. I looked out with the
MAKUA WOMAN closest attention for any indication of the use
MAKING A POT. of the potter’s wheel, in however rudimentary
SHOWS THE a form, but no—hapana (there is none). The
BEGINNINGS OF THE embryo pot stood firmly in its little
POTTER’S WHEEL
depression, and the woman walked round it in
a stooping posture, whether she was removing
small stones or similar foreign bodies with the maize-cob, smoothing
the inner or outer surface with the splinter of bamboo, or later, after
letting it dry for a day, pricking in the ornamentation with a pointed
bit of gourd-shell, or working out the bottom, or cutting the edge
with a sharp bamboo knife, or giving the last touches to the finished
vessel. This occupation of the women is infinitely toilsome, but it is
without doubt an accurate reproduction of the process in use among
our ancestors of the Neolithic and Bronze ages.
There is no doubt that the invention of pottery, an item in human
progress whose importance cannot be over-estimated, is due to
women. Rough, coarse and unfeeling, the men of the horde range
over the countryside. When the united cunning of the hunters has
succeeded in killing the game; not one of them thinks of carrying
home the spoil. A bright fire, kindled by a vigorous wielding of the
drill, is crackling beside them; the animal has been cleaned and cut
up secundum artem, and, after a slight singeing, will soon disappear
under their sharp teeth; no one all this time giving a single thought
to wife or child.
To what shifts, on the other hand, the primitive wife, and still more
the primitive mother, was put! Not even prehistoric stomachs could
endure an unvarying diet of raw food. Something or other suggested
the beneficial effect of hot water on the majority of approved but
indigestible dishes. Perhaps a neighbour had tried holding the hard
roots or tubers over the fire in a calabash filled with water—or maybe
an ostrich-egg-shell, or a hastily improvised vessel of bark. They
became much softer and more palatable than they had previously
been; but, unfortunately, the vessel could not stand the fire and got
charred on the outside. That can be remedied, thought our
ancestress, and plastered a layer of wet clay round a similar vessel.
This is an improvement; the cooking utensil remains uninjured, but
the heat of the fire has shrunk it, so that it is loose in its shell. The
next step is to detach it, so, with a firm grip and a jerk, shell and
kernel are separated, and pottery is invented. Perhaps, however, the
discovery which led to an intelligent use of the burnt-clay shell, was
made in a slightly different way. Ostrich-eggs and calabashes are not
to be found in every part of the world, but everywhere mankind has
arrived at the art of making baskets out of pliant materials, such as
bark, bast, strips of palm-leaf, supple twigs, etc. Our inventor has no
water-tight vessel provided by nature. “Never mind, let us line the
basket with clay.” This answers the purpose, but alas! the basket gets
burnt over the blazing fire, the woman watches the process of
cooking with increasing uneasiness, fearing a leak, but no leak
appears. The food, done to a turn, is eaten with peculiar relish; and
the cooking-vessel is examined, half in curiosity, half in satisfaction
at the result. The plastic clay is now hard as stone, and at the same
time looks exceedingly well, for the neat plaiting of the burnt basket
is traced all over it in a pretty pattern. Thus, simultaneously with
pottery, its ornamentation was invented.
Primitive woman has another claim to respect. It was the man,
roving abroad, who invented the art of producing fire at will, but the
woman, unable to imitate him in this, has been a Vestal from the
earliest times. Nothing gives so much trouble as the keeping alight of
the smouldering brand, and, above all, when all the men are absent
from the camp. Heavy rain-clouds gather, already the first large
drops are falling, the first gusts of the storm rage over the plain. The
little flame, a greater anxiety to the woman than her own children,
flickers unsteadily in the blast. What is to be done? A sudden thought
occurs to her, and in an instant she has constructed a primitive hut
out of strips of bark, to protect the flame against rain and wind.
This, or something very like it, was the way in which the principle
of the house was discovered; and even the most hardened misogynist
cannot fairly refuse a woman the credit of it. The protection of the
hearth-fire from the weather is the germ from which the human
dwelling was evolved. Men had little, if any share, in this forward
step, and that only at a late stage. Even at the present day, the
plastering of the housewall with clay and the manufacture of pottery
are exclusively the women’s business. These are two very significant
survivals. Our European kitchen-garden, too, is originally a woman’s
invention, and the hoe, the primitive instrument of agriculture, is,
characteristically enough, still used in this department. But the
noblest achievement which we owe to the other sex is unquestionably
the art of cookery. Roasting alone—the oldest process—is one for
which men took the hint (a very obvious one) from nature. It must
have been suggested by the scorched carcase of some animal
overtaken by the destructive forest-fires. But boiling—the process of
improving organic substances by the help of water heated to boiling-
point—is a much later discovery. It is so recent that it has not even
yet penetrated to all parts of the world. The Polynesians understand
how to steam food, that is, to cook it, neatly wrapped in leaves, in a
hole in the earth between hot stones, the air being excluded, and
(sometimes) a few drops of water sprinkled on the stones; but they
do not understand boiling.
To come back from this digression, we find that the slender Nyasa
woman has, after once more carefully examining the finished pot,
put it aside in the shade to dry. On the following day she sends me
word by her son, Salim Matola, who is always on hand, that she is
going to do the burning, and, on coming out of my house, I find her
already hard at work. She has spread on the ground a layer of very
dry sticks, about as thick as one’s thumb, has laid the pot (now of a
yellowish-grey colour) on them, and is piling brushwood round it.
My faithful Pesa mbili, the mnyampara, who has been standing by,
most obligingly, with a lighted stick, now hands it to her. Both of
them, blowing steadily, light the pile on the lee side, and, when the
flame begins to catch, on the weather side also. Soon the whole is in a
blaze, but the dry fuel is quickly consumed and the fire dies down, so
that we see the red-hot vessel rising from the ashes. The woman
turns it continually with a long stick, sometimes one way and
sometimes another, so that it may be evenly heated all over. In
twenty minutes she rolls it out of the ash-heap, takes up the bundle
of spinach, which has been lying for two days in a jar of water, and
sprinkles the red-hot clay with it. The places where the drops fall are
marked by black spots on the uniform reddish-brown surface. With a
sigh of relief, and with visible satisfaction, the woman rises to an
erect position; she is standing just in a line between me and the fire,
from which a cloud of smoke is just rising: I press the ball of my
camera, the shutter clicks—the apotheosis is achieved! Like a
priestess, representative of her inventive sex, the graceful woman
stands: at her feet the hearth-fire she has given us beside her the
invention she has devised for us, in the background the home she has
built for us.
At Newala, also, I have had the manufacture of pottery carried on
in my presence. Technically the process is better than that already
described, for here we find the beginnings of the potter’s wheel,
which does not seem to exist in the plains; at least I have seen
nothing of the sort. The artist, a frightfully stupid Makua woman, did
not make a depression in the ground to receive the pot she was about
to shape, but used instead a large potsherd. Otherwise, she went to
work in much the same way as Salim’s mother, except that she saved
herself the trouble of walking round and round her work by squatting
at her ease and letting the pot and potsherd rotate round her; this is
surely the first step towards a machine. But it does not follow that
the pot was improved by the process. It is true that it was beautifully
rounded and presented a very creditable appearance when finished,
but the numerous large and small vessels which I have seen, and, in
part, collected, in the “less advanced” districts, are no less so. We
moderns imagine that instruments of precision are necessary to
produce excellent results. Go to the prehistoric collections of our
museums and look at the pots, urns and bowls of our ancestors in the
dim ages of the past, and you will at once perceive your error.
MAKING LONGITUDINAL CUT IN
BARK
DRAWING THE BARK OFF THE LOG
REMOVING THE OUTER BARK

BEATING THE BARK
WORKING THE BARK-CLOTH AFTER BEATING, TO MAKE IT

SOFT
MANUFACTURE OF BARK-CLOTH AT NEWALA

To-day, nearly the whole population of German East Africa is
clothed in imported calico. This was not always the case; even now in
some parts of the north dressed skins are still the prevailing wear,
and in the north-western districts—east and north of Lake
Tanganyika—lies a zone where bark-cloth has not yet been
superseded. Probably not many generations have passed since such
bark fabrics and kilts of skins were the only clothing even in the
south. Even to-day, large quantities of this bright-red or drab
material are still to be found; but if we wish to see it, we must look in
the granaries and on the drying stages inside the native huts, where
it serves less ambitious uses as wrappings for those seeds and fruits
which require to be packed with special care. The salt produced at
Masasi, too, is packed for transport to a distance in large sheets of
bark-cloth. Wherever I found it in any degree possible, I studied the
process of making this cloth. The native requisitioned for the
purpose arrived, carrying a log between two and three yards long and
as thick as his thigh, and nothing else except a curiously-shaped
mallet and the usual long, sharp and pointed knife which all men and
boys wear in a belt at their backs without a sheath—horribile dictu!
[51]
Silently he squats down before me, and with two rapid cuts has
drawn a couple of circles round the log some two yards apart, and
slits the bark lengthwise between them with the point of his knife.
With evident care, he then scrapes off the outer rind all round the
log, so that in a quarter of an hour the inner red layer of the bark
shows up brightly-coloured between the two untouched ends. With
some trouble and much caution, he now loosens the bark at one end,
and opens the cylinder. He then stands up, takes hold of the free
edge with both hands, and turning it inside out, slowly but steadily
pulls it off in one piece. Now comes the troublesome work of
scraping all superfluous particles of outer bark from the outside of
the long, narrow piece of material, while the inner side is carefully
scrutinised for defective spots. At last it is ready for beating. Having
signalled to a friend, who immediately places a bowl of water beside
him, the artificer damps his sheet of bark all over, seizes his mallet,
lays one end of the stuff on the smoothest spot of the log, and
hammers away slowly but continuously. “Very simple!” I think to
myself. “Why, I could do that, too!”—but I am forced to change my
opinions a little later on; for the beating is quite an art, if the fabric is
not to be beaten to pieces. To prevent the breaking of the fibres, the
stuff is several times folded across, so as to interpose several
thicknesses between the mallet and the block. At last the required
state is reached, and the fundi seizes the sheet, still folded, by both
ends, and wrings it out, or calls an assistant to take one end while he
holds the other. The cloth produced in this way is not nearly so fine
and uniform in texture as the famous Uganda bark-cloth, but it is
quite soft, and, above all, cheap.
Now, too, I examine the mallet. My craftsman has been using the
simpler but better form of this implement, a conical block of some
hard wood, its base—the striking surface—being scored across and
across with more or less deeply-cut grooves, and the handle stuck
into a hole in the middle. The other and earlier form of mallet is
shaped in the same way, but the head is fastened by an ingenious
network of bark strips into the split bamboo serving as a handle. The
observation so often made, that ancient customs persist longest in
connection with religious ceremonies and in the life of children, here
finds confirmation. As we shall soon see, bark-cloth is still worn
during the unyago,[52] having been prepared with special solemn
ceremonies; and many a mother, if she has no other garment handy,
will still put her little one into a kilt of bark-cloth, which, after all,
looks better, besides being more in keeping with its African
surroundings, than the ridiculous bit of print from Ulaya.
MAKUA WOMEN

978 1111578718 Legal Aspects of Architecture Engineering and The Construction Process

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978-1111578718 Legal Aspects of

Architecture, Engineering and the

I. Dissolution and Winding Up 24 C h a p te r five

6.08 Remedies 93 Overview of Statute 118

Restrictions on Ownership: Land Use Part B: The Main Actors: The

E. Fixed Fee 190 J. Failure of Cost Prediction caused by

C h a p te r E l e v en Standard Form Contracts 275

E. Recent Legislative Activities 315 13.04 Moral Rights of Artists 339

16.02 Principles Underlying Claims 427 D. Impossibility: Commercial

C. Extrinsic Evidence 489 F. Formal Requirements 521

C h a p te r T w ent y B. The Critical Path Method (CPM) and

Extended Home Office Overhead: C. Bargaining Situation: Shopping and

24.03 Contractual Power to Terminate 673 E. Implied Contractual Indemnity 699

C h a p te r t w ent y - s i x B. Reasons for Initial Design Professional

D. Proceeding Without the Presence of Appendices

Footnote references can be statutes, regulations, or Four Main Organizational Changes

The hierarchical nature of the court system means that Appreciations

Ninth Edition Eighth Edition

Justin Sweet Marc M. Schneier

Legal Framework of the Design

Chapter 1 Sources of Law: Varied and Dynamic

Chapter 2  he American Judicial System: A Forum for Dispute

Chapter 3  orms of Business Association: Organizing to

Chapter 4 Agency and Employment

Chapter 5 Contracts: From Formation to Breach

Chapter 6 Torts: Legal Relations Not Arising from Contract

Chapter 7  estrictions on Ownership: Land Use Controls and

Newala, too, suffers from the distance of its water-supply—at least

The water-supply of New Newala is in the bottom of the valley,

NATIVE PATH THROUGH THE MAKONDE BUSH, NEAR

MAKONDE LOCK AND KEY AT JUMBE CHAURO

MODE OF INSERTING THE KEY

With no small pride first one householder and then a second

Some consolation was afforded me by a brassfounder, whom I

SMOOTHING WITH MAIZE-COB

CUTTING THE EDGE

LAST SMOOTHING BEFORE

FIRING THE BRUSH-PILE

TURNING THE RED-HOT VESSEL

NYASA WOMAN MAKING POTS AT MASASI

DRAWING THE BARK OFF THE LOG

REMOVING THE OUTER BARK

WORKING THE BARK-CLOTH AFTER BEATING, TO MAKE IT

MANUFACTURE OF BARK-CLOTH AT NEWALA

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Chapter 2 he American Judicial System: A Forum for Dispute

Chapter 3 orms of Business Association: Organizing to

Chapter 7 estrictions on Ownership: Land Use Controls and