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Laws and Contracts forEngineers

ORIGIN, NATURE AND DEVELOPMENT

OF LAW

Origin of Our Present Civili !tion

The present state of mental and material

development of the nations of the earth is the

result of in uences many of which may be

traced back to the dawn of history. Menand nations and their laws customs and

relations are not alone what modern

civili!ation has produced but have been created by

in uences which have been acting from the most remote times.

The heritage of today the social political and religious

institutions are due to many people and to other nations many of

which have long ceased to e"ist but which nevertheless have left

an indelible impression on present social political mental and

moral development and on the thoughts acts and daily lives of

present generations.

#rimitive man lived entirely under natural laws. $e obtained those

things which his strength and agility would permit% with him as

with the lower animals &might made right ' and his e"istence was

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largely a continuous struggle. ith his mental development he

began to reali!e that his individual instincts and interests were

hardly su/cient for his guidance. $e began to see that his

neighbours had rights e0ual to and often in con ict with his own

and that unless he would live in constant warfare it was

absolutely essential that the rights of all be so regulated as not to

interfere or so as to interfere as little as possible with the e0ual

rights of others. n order to protect himself in the en2oyment of his

own property and rights he was obliged to make laws for theregulation of his own conduct. 3uch laws were at 4rst largely

regulated by custom or by the opinion of the head of the clan or

tribe. hatever was customary or usual was considered right and

became the law. These laws have grown developed and have

been altered and e"panded as the races of mankind have grown

and developed and e"perienced new demands for the protectionor e"tensions of their social political and business relations and

they constitute today the vast legal fabric which controls and

modi4es every line of civili!ed human activity.

T"e N!ture of L!#

Man in his changing environment has in practically all his activities and

relationships sought some stable and unchanging points from which to start

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his operations or on which to base his ideas thoughts calculations etc. The

surveyor uses his bench mark the builder his datum elevation the machinist

his locating pads or dowel pins. n business 4"ed rules are 2ust as important.Even in morals and religion human beings have always been made if

scientists had not worked out and established certain basic principles from

which to proceed with their studies. 6ll of these 4elds have their laws and

from the diversity of the 4elds it is evident at once that the term &law' has a

large and diverse number of meanings.

3ince man7s basic craving is for stability it follows that laws should bestable. )ur more fundamental laws are all assumed to be 4"ed and

unchanging% but a di/culty arises in the fact that while the laws may be

unchanging man is not and his understanding of what constitutes a law

does change.

Most religions are based on divine law which was revealed to human beings

a deity. t is now generally recogni!ed that human beings have not always

been able to interpret these revelations properly and therefore our ideas

regarding religion change. Most theologians would contend however that

the change is in man and not in divine truth.

3cienti4c law is also considered to be changeless although the sub2ect to

incorrect interpretation or insu/cient e"perimental basis. Even the

understanding of what constitutes a scienti4c law and the re0uirements for

establishing its validity have undergone many changes during the course of

history. 8or a number of centuries the test of the validity of a proposed

scienti4c law was its conformity with the teachings of 6ristotle and with the

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dicta of the established church. 6round the beginning of the seventeenth

century this concept began to disappear and there began the growth of the

scienti4c method which places the emphasis on e"perimental evidence.Even with the use of re4ned e"perimental techni0ues however we must in

all honesty admit that no scienti4c laws can be proved completely and

beyond doubt. 6 preponderance of e"perimental evidence is usually all that

is re0uired for general acceptance.

n governmental law this same attempt at rigid and unchanging standards

has been tried. e have from the ancient records the references to the &lawsof the Medes and the #ersians which changeth not.' n this case if the king

once a/"ed his seal to a law even he could not cause it to be changed. 3uch

rigidity often led to di/culties and to grave in2ustices.

6ll e"perience has pointed out the fundamental fact that while in religion

science and government people desire 4"ed points of reference if truth and

2ustice are to prevail there must also be a certain amount of e"ibility.

The word &law' has such a large number of usages in such a large number of

4elds which are so varied and comple" that it would be impossible to give a

short yet comprehensive and complete de4nition of the meaning of the word.

6s a generali!ation however we might de4ne law as those rules

procedures practices concepts customs traditions etc. which when

adopted enacted or established in accordance with correct and proper

procedures must be considered to be 4"ed and unchanged unless repealed

modi4ed or changed by correct and proper procedures.

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Outline of L!#s

The following outline while admittedly not complete is intended to show

some of the interrelations of the various classi4cations of laws.Moral Law

+ivine law

Ecclesiastical law

*atural or scienti4c law

Laws of physical sciences

Laws of natural sciences

Laws of social sciencesLaw of 6rt and Literature

Laws of music

Laws of painting

Laws of poetry

nternational Law

#rivate international law

Law of nations or public international law

Municipal or government law

Constitutional law

3tatute law

Common law

E0uity

Laws without governmental sanction

Laws of games

Laws of private associations and societies

Intern!tion!l L!#

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There are two distinct classes of international law. There is private

international law which deals with the rights privileges and legal proceduresassociated with an individual who although residing in a country is not a

citi!en of that country. The law of nations or public international law on the

other hand deals with the relations of one sovereign nation with another.

n early historical times both of these were based on the principle of &might

makes right.' 6n individual in a foreign land had no status in court and

might be robbed or even enslaved without redress if enough force could bebrought against him. 6s trade and travel outside the con4nes of one country

became desirable and pro4table the nations reali!ed that to ensure

protection for their own citi!ens abroad they must grant protection to the

citi!ens of other nations who were within their borders. <radually a large

body of treaties understandings and customs developed which ultimately

assumed the status of law.

The law of nations is of general and cultural interest to the engineer but it

does not have many professional implications. The body of treaties which

form the backbone of the law of nations is increasing at all times and

international organi!ations such as the Leagues of *ations and the =nited

*ations are attempts at supplanting the principles of force with the principles

of 2ustice in the handling of the relations of one with another.

#rivate international law deals with such legal matters as domicile family

rights property marriage settlements succession commercial law maritime

law bills of e"change bankruptcy etc. all of which are of obvious

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importance to the engineer who works or travels abroad. #rivate

international law varies from country to country but is based n custom and

treaties as well as on statutes and is much too comple" to deal with morethan super4cially in this te"t.

The engineer residing or working in a foreign country can 4nd no substitute

for competent legal counsel when in di/culty but a few generalities

regarding the laws of contracts and property may be of interest.

Muni$i%!l or Govern&ent L!# The legal sub2ect which is of such interest to engineers that it must receive a

ma2or amount of discussion is municipal or governmental law. This consists

of those rules enforceable in courts by which the civil rights and the

conduct of the citi!ens and residents of a nation with each other are

regulated. Criminal law is also a part of municipal law but is beyond the

scope of this te"t.

Municipal law as has been seen previously may be divided into four

classi4cations? constitutional law statute law including administrative law%

common law and e0uity.

Constitutional law is the most fundamental law and is superior to any of the

other three classi4cations.

Common law is older than the most fundamental law but statutes are

generally superior in force to either common law or e0uity.

Constitution!l L!#

The fundamental governmental documents of the =nited 3tates are the

+eclaration of ndependence and the Constitution. These documents make

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0uite clear the ideas which the founders of this nation had regarding the

authority for setting up a new and independent government the basic rights

of individual human beings and the basic purpose for which governments areformed.

The +eclaration of ndependence makes clear the belief that the new nation

was privileged &to assume among the powers of the earth the separate and

e0ual station to which the Laws of *ature and of *ature7s <od entitle them.'

$aving thus set forth the authority for founding a new nation this document

proceeds to set forth the basic human rights and the relationship of agovernment to these rights.

& e hold these truths to be selfAevident that all men are created e0ual that

they are endowed by their Creator with certain unalienable Bights that

among these are Life Liberty and the pursuit of $appiness. That to secure

these rights governments are instituted among men deriving their 2ust

powers from the consent of the governed.'

The constitution sets forth the purpose for which this government was

formed as &in order to form a more perfect =nion establish 2ustice insure

domestic tran0uillity provide for the common defense promote the general

welfare and secure the blessings of liberty to ourselves and our posterity.'

The rights of the individual as set forth in these documents are so basic and

the purposes of government so fundamental that nothing in our nation may

have legal weight superior to our Constitution. 6nything in a state

constitution 8ederal statute state statute minor political subdivision

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ordinance common law or elsewhere which is contrary to the =nited 3tates

Constitution is therefore automatically void.

't!tute L!#

Many early civili!ations recogni!ed the desirability of having their laws

recorded in writing and drew up codes on which uniform 2ustice might be

based. 3ome of these codes were of great and longAstanding in uence one

such being the Dustinian Code or Corpus Duris Civilis which was the law of the

Boman Empire under the Dustinian. The code was a compilation and revision

of all known laws of the Boman Empire and was adopted shortly after 6.+.: . The code was primarily the work of Tribonian under the orders of the

Emperor and with subse0uent modi4cations remained the law as long as the

Boman Empire endured. t was also the basis of the *apoleonic Code which

was the governing body of law for the 8rench Empire under *apoleon. This

latter Code formed the foundation for much of the law of 3pain taly

<ermany and $olland and was carried to the *ew orld with the colonies of

these countries.

3tatute laws are those which are enacted by some governmental body which

has constitutional authority to enact such laws. The common law as seen

above usually comes 4rst and then some legislative body recogni!ing some

new need which has arisen because of changing times or some in2ustice

which has developed under the common law will enact a statute covering

the circumstances. The statute when enacted is in general superior to the

common law.

Essentially all criminal law is now statute law but much of the law which

regulates business is still common law. 6dministrative law arises out of

statute law as a result of the delegating to administrative agencies of

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government authority to make reasonable rules and 4ndings conforming to

standards which are prescribed by the statute creating the administrative

agency or delegating authority to it. 3uch administrative rules are bystatute generally given the force of statute law.

Co&&on L!#

The English people even back in the 6ngloA3a"on period recogni!ed that no

code of laws could possibly be complete enough to cover all situations.

$aving striven very hard to establish and maintain the basic rights of

individuals these English people were resolved that 2ustice must be obtained

in the courts even if no statute was applicable. Many people feel that this isthe best contribution which the English have made to 2urisprudence.

Common law is based on usage. f a thing has been done in a given way for a

long time the court will assume that this is the proper and 2ust way for it to

be done. 3ome courts hold that a custom in use &so long as the memory of

man runneth not to the contrary' has the status of common law.

Fecause common law is based on the tradition and accepted usage many

things may be considered by the court which would not apply in statute law.

The courts in trying to establish what the true historic usage really is

fre0uently go back to former court decisions.

Develo%&ent of Co&&on L!# () *u+i$i!l De$isions

#revious court decisions from a precedent which serves to settle other

similar cases. Courts are not a liberty to ignore decisions of previous courts

for these decisions are part of the common law and &no man is wiser than

the law.' The countless decisions of courts in Europe and 6merica the

records of which 4ll thousands of volumes are to an e"tent binding upon the

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courts which decide similar cases today. Each new decision becomes part of

the common law.

Theoretically the law never changes. #ractically it is constantly being

revised and modi4ed to meet new conditions as civili!ation and its

accompanying business transactions demand. hile past decisions are

binding in a sense on courts of the same 2urisdiction still as new situations

arise precedents as established by previous decisions can be and are more

or less e"tended modi4ed and molded by new decisions into conformity with

the necessities that arise. t must not be understood that these decisions of the courts of common law are absolute or that they cannot be departed from

under any conditions or circumstances% for if 2udicial decisions have been

established in a particular way for a number of years and it is found that on

account of public policy an absolute change is necessary such changes are

made by the courts of common law themselves. The courts seldom however

atly disregard precedent but usually hold that the remedy in such cases lies

with the legislative body. hen the common law is inconsistent with the

needs of the community and the evil becomes a crying one the legislature

will usually step in and make such alterations as conditions demand.

t should also be noted that these decisions are binding only in a limited

sense. They are binding on courts of common 2urisdiction that is in the

2urisdiction under which the decisions have been rendered. here a case is

to be decided on lines for which there is no precedent in the 2urisdiction of

the court where the case is heard the decisions of the common law courts in

other 2urisdiction will have an important in uence on the decision of the

court.

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- 'u(+ivisions of t"e Co&&on L!#

Co&&on l!# also known as $!se l!# or %re$e+ent is lawdeveloped by 2udges through decisions of courts and similar

tribunals as opposed to statutes adopted through the legislative

process or regulations issued by the e"ecutive branch .

6 Gcommon law systemG is a legal system that gives great

precedential weight to common law on the principle that it is

unfair to treat similar facts diHerently on diHerent occasions. The

body of precedent is called Gcommon lawG and it binds future

decisions. n cases where the parties disagree on what the law is

a common law court looks to past precedential decisions of

relevant courts. f a similar dispute has been resolved in the past

the court is bound to follow the reasoning used in the prior

decision Ithis principle is known as stare decisis J. f however the

court 4nds that the current dispute is fundamentally distinct from

all previous cases Icalled a G matter of 4rst impression GJ 2udges

have the authority and duty to make law by creating precedent .

Thereafter the new decision becomes precedent and will bind

future courts.

n practice common law systems are considerably more complicated than

the simpli4ed system described above. The decisions of a court are bindingonly in a particular 2urisdiction and even within a given 2urisdiction some

courts have more power than others. 8or e"ample in most 2urisdictions

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decisions by appellate courts are binding on lower courts in the same

2urisdiction and on future decisions of the same appellate court but

decisions of lower courts are only nonAbinding persuasive authority.nteractions between common law constitutional law statutory law and

regulatory law also give rise to considerable comple"ity. $owever stare

decisis the principle that similar cases should be decided according to

consistent principled rules so that they will reach similar results lies at the

heart of all common law systems.

I- COURT OF E.UIT/

6 $"!n$er) $ourt e0uit) $ourt or $ourt of e0uit) is a court

that is authori!ed to apply principles of e0uity as opposed to law

to cases brought before it.

These courts began with petitions to the Lord Chancellor of

England. E0uity courts Ghandled lawsuits and petitions re0uesting

remedies other than damages such as writs in2unctions and

speci4c performance.G Most were eventually Gmerged with courts

of lawG.

=nited 3tates bankruptcy courts are the one e"ample of =3

federal courts which operate as courts of e0uity. 3ome common

law 2urisdictions Ksuch as the =.3. states of +elaware Mississippi

*ew Dersey 3outh Carolina and Tennessee Kpreserve thedistinctions between law and e0uity and between courts of law

and courts of e0uity.

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6 court of e0uity is also known as an e0uity court or chancery

court. t is a court that passes 2udgment on disputes by virtue of

fairness rather than the law. 6s the term itself infers a court of

e0uity passes an e0uitable decision in disputes. t may be

separate and independent from the court of law or a court of law

may also act as a court of e0uity depending on the 2udgment

given. Fankruptcy courts are one such e"ample of a court of law

that also functions as a court of e0uity.

The principle idea of a court of e0uity is that a ruling based on thelaws may not be fair or e0uitable to the parties involved

especially the slighted party. Thus a court of e0uity provides a

more evenhanded decision. Fecause each dispute is settled by

providing a fair decision a court of e0uity may not set a

precedent. +ecisions are made solely on a caseAtoAcase basis and

cannot be applied to any other case or to be used in reference toanother case.

+espite deciding based solely on e0uitability a court of e0uity

still has legal obligations it must ful4ll in settling a dispute.

$owever a 2udge in a court of e0uity is not limited to come to a

decision based on previous interpretations of the law. 6 2udge

from this type of court may have the option to e"plore every

reasonable argument present in the dispute before reaching a

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decision. 6s such courts of e0uity are seen to be more lenient

and more reasonable than courts of law.

LA1OR CODE OF T2E P2ILIPPINE'

The L!(or Co+e of t"e P"ili%%ines stands as the law governing

employment practices and labor relations in the #hilippines. t was enacted

on Labor day of 1 >9 by #resident 8erdinand Marcos in the e"ercise of his

then e"tant legislative powers .

The Labor Code prescribes the rules for hiring and termination of

private employees% the conditions of work including ma"imum

work hours and overtime % employee bene4ts such as holiday pay

thirteenth month pay and retirement pay% and the guidelines in

the organi!ation and membership in labor unions as well as in

collective bargaining .

The Labor Code contains several provisions which are bene4cialto labor . t prohibits termination from employment of #rivate

employees e"cept for 2ust or authori!ed causes as prescribed in

6rticle -@- to -@9 of the Code. The right to trade union is

e"pressly recogni!ed as is the right of a union to insist on a

closed shop . 3trikes are also authori!ed for as long as they

comply with the strict re0uirements under the Code and workerswho organi!e or participate in illegal strikes may be sub2ect to

dismissal. Moreover #hilippine 2urisprudence has long applied a

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rule that any doubts in the interpretation of law especially the

Labor Code will be resolved in favor of labor and against

management .

II- P2ILIPPINE COURT '/'TEM

The Constitution

The Constitution of the #hilippines ordains that 2udicial power shall be vested

in one 3upreme Court and such lower courts as may be established by law.

[Section 1, Art. VIII, 1987 Constitution).

=nder #hilippine laws Dudiciary Beorgani!ation 6ct of 1 @ IFatas #ambansa

Filang 1- J which took eHect on Danuary 1@ 1 @5 and other laws the

#hilippine 2udicial system consists of the following courts

A- Revie# Courts

3upreme Court

The 3upreme Court is the highest Court in the #hilippines. There is only one

3upreme Court composed of one Chief Dustice and fourteen 6ssociate

Dustices. t is the 4nal arbiter of any and all 2udicial issues. hen so deciding

it may sit en banc or in divisions of three 4ve or seven members

Court of 6ppeals

The Court of 6ppeals composed of one #residing Dustice and si"ty eight6ssociate Dustices is vested with 2urisdiction over appeals from the decisions

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of the Begional Trial Courts and certain 0uasiA2udicial agencies boards or

commissions.

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1- Tri!l Courts

Begional Trial Court

#rovincial Begional Trial Court Begional Trial Courts were established among the thirteen regions in the

#hilippines consisting of Begions to N and the *ational Capital Begion

I*CBJ. There are as many Begional Trial Courts in each region as the law

mandates.

E0uivalent to the Begional Trial Courts in rank are the 3hariOa +istrict Courts

which were established in certain speci4ed provinces in Mindanao where theMuslim Code on #ersonal Laws is being enforced.

There are 4ve 3hariOa +istrict Courts and 4fty one 3hariOa Circuit Courts in

e"istence.

Metro Manila Begional Trial Court

Metropolitan Trial Court

Municipal Trial Courts in the towns and cities in the Metropolitan Manila area

as distinguished from the other political subdivisions in the #hilippines are

referred to as Metropolitan Trial Courts. n cities outside Metropolitan Manila

the e0uivalent of the Municipal Trial Courts are referred to as Municipal Trial

Courts in Cities.

Municipal Trial Court

Municipal Circuit Trial Court

Every municipality in the #hilippines has its own Municipal Trial Court. t is

referred to as such if it covers only one municipality% otherwise it is called

Municipal Circuit Trial Court if it covers two or more municipalities.

C- '%e$i!l Courts

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Court of Ta" 6ppeals

6 special court the Court of Ta" 6ppeals composed of a #residing Dudge and

two 6ssociate Dudges is vested with the e"clusive appellate 2urisdiction overappeals from the decisions of the Commissioner of nternal Bevenue and the

Commissioner of Customs on certain speci4c issues.

3andiganbayan

6 special court the 3andiganbayan composed of a #residing Dustice and

eight 6ssociate Dustices has e"clusive 2urisdiction over violations of the 6ntiA

<raft and Corrupt #ractices 6ct Bepublic 6ct *o. 5 1 the =ne"plainedealth 6ct Bepublic 6ct *o. 15> and other crimes or felonies committed

by public o/cials and employees in relation to their o/ce including those

employees in governmentAowned or controlled corporations.

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( )rigin *ature and +evelopment of Law,