After starting the wall and roof construction on a custom-designed home, FD, the

Question

After starting the wall and roof construction on a custom-designed home, FD, the prime contractor, realized he was not going to make the big profit that he had anticipated due to the many unique features of the home for which he had not correctly estimated the cost to the owners. The contract was fixed-price with no more than 10% override on the total cost. As time proceeded, FD took the choices of the owners on appliances, finishing work on the floors and walls, and many other features and purchased look-alike substitutes from questionable-quality,

internationally-based manufacturers and vendors.

After living in the house for only 3 years, the owners were so disappointed with the quality of work that they decided to bring a law suit against FD and his company for breach of contract. However, they needed sound reasons upon which to base their legal claims against FD, were the case to go to court. One of the owners, being an engineer, decided to consult the Code of Ethics for Engineers to gain insight into what may be substantial violations performed during the construction phase.

(a) Help the owners by suggesting Code violations and provide a brief logic as to why each one sited from the Code may be a sound basis for legal action.

(b) Discuss the applicability to this situation of the Engineer’s Code of Ethics.

(c) Suggest other resources that may be of use to the owners as they ponder legal action.

Explanation / Answer

(A) This is the case of material breach.A material breach is any failure to perform that permits the other party to the contract to either compel performance, or collect damages because of the breach.The test of essentiality requires that the promise (term) was of such importance to the promisee that he or she would not have entered into the contract unless he had been assured of strict or substantial performance of the promise and this ought to have been apparent to the promisor.

(B) 1.Engineers shall hold paramount the safety, health and welfare of the public and shall strive to comply with the principles of sustainable development in the performance of their professional duties.

2. Engineers shall perform services only in areas of their competence.

3. Engineers shall issue public statements only in an objective and truthful manner.

4. Engineers shall act in professional matters for each employer or client as faithful agents or trustees, and shall avoid conflicts of interest.

5. Engineers shall build their professional reputation on the merit of their services and shall not compete unfairly with others.

6. Engineers shall act in such a manner as to uphold and enhance the honor, integrity, and dignity of the engineering profession and shall act with zero-tolerance for bribery, fraud, and corruption.

7. Engineers shall continue their professional development throughout their careers, and shall provide opportunities for the professional development of those engineers under their supervision.

(C) In determining whether a failure to render or to offer performance is material, the following circumstances are significant:

(1) the extent to which the owner will be deprived of the benefit which he reasonably expected;

(2) the extent to which the owner can be adequately compensated for the part of that benefit of which he will be deprived;

(3) the extent to which the party failing to perform or to offer to perform will suffer forfeiture;

(4) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances;

(5) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing.

(6) in this case if contractor promised to use of particular material but he used lower quality material instead of that like use of iron pipe in place of copper pipe,then owner may collect the sample of failed part of building to file a legal suit.

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