In What is Construction Law – Part 1 we defined construction law as a phrase that envelops many legal issues that arise in the design, engineering, financing, building, improving, renovating, finishing-out, and demolishing processes. This definition begs a few more questions: (1) how do legal obligations generally arise; (2) what are some of the typical legal obligations that surface in the construction processes; and (3) how are these obligations enforced? Roll up your sleeves; we’ll tackle question number one here.
How Do Legal Obligations Generally Arise?
Legal obligations generally arise by force of law or by agreement.
1. Force of Law (Texas-Specific)
Generally, the sources of legal obligations that arise by force of law include the constitution, statutes, regulations, ordinances, and court-made law a.k.a. common law.
The state constitution is the law of the land. It governs with the highest authority all legal matters. Among other things, it provides for the form of our government and establishes legislative, executive, and judicial branches. There are checks and balances between these three branches so that no one person or branch becomes too powerful.
Generally, the legislature—the duly elected representatives of the people of the state—makes the law (called statutes and organized into codes) and authorizes the executive in some instances, often through administrative agencies, to breathe life into some of the statutes by enacting regulations.
The judicial branch interprets the constitution as well as those statutes and regulations. However, unlike the legislative branch, judges only have authority to interpret and apply the law to specific controversies over which they have jurisdiction and preside. Courts are bound to follow legal precedent. Some of them must issue written opinions that then become part of the body of court-made law. The legislature can override court-made law, but only after the fact and in accordance with the law and proper procedure. The judiciary has the power to deem laws enacted by the legislature unconstitutional and invalid.
The governor is the chief executive officer of the state. The executive is arguably the strongest branch since the governor has veto power and is also commander-in-chief of the state’s military forces. (Yes, Texas does have its own military forces.) Still, the power of the executive is held in check by the legislature’s power of the purse—that is, the legislature’s ability to grant or refuse to fund initiatives and programs desired by the executive—and the judiciary’s ability to determine what is and what is not constitutional and, therefore, legal.
At a more local level, some Texas municipalities have been granted the authority to promulgate and enforce law. The laws enacted by these municipalities are often called ordinances, which are also sometimes organized into codes.
2. Agreement (Texas-Specific)
Even if we don’t have a legal obligation imposed upon us by force of law, we can nevertheless obligate ourselves to do or refrain from doing something by contract. For example, no law says I have to mow your lawn. But if you agree to pay me a fair sum, I may be willing to do it. Once we reach an agreement, I must mow your lawn and you must pay me the agreed price. If one of us does not fulfill our contractual obligation there may be a legal consequence. Before the agreement neither of us owed a legal obligation to the other. After the agreement we both owed one another obligations. These obligations weren’t imposed upon us by law; instead, they were directly self-imposed.
In the construction context as a whole, obligations arise both by force of law and by agreement. The constitution and sundry statutes, regulations, ordinances, court-made law, and contracts govern various aspects of the construction processes. In our next Law 101: What is Construction Law post, we’ll discuss some of the more typical legal issues that surface in these processes.
As an aside, Florida has in place a process whereby attorneys may become board certified in construction law. Texas doesn’t have an identical certification at this time. (Update: Texas does now offer board certification in this field. For more, see this post.) Florida has undertaken to define “construction law” in Rule 6-24.2(c) of the Amended Rules Regulating the Florida Bar (2004) as:
…the practice of law dealing with matters relating to the design and construction of improvements on private and public projects including, but not limited to, construction dispute resolution, contract negotiation, preparation, award and administration, lobbying in governmental hearings, oversight and document review, construction lending and insurance, construction licensing, and the analysis and litigation of problems arising out of the Florida Construction Lien Law, section 255.05, Florida Statutes, and the federal Miller Act, 40 U.S.C. § 270.
So, yeah, there’s that translucent definition, too.