This is solution of Icon college aspects contract negligence business assignment, in which various cases with aspects of law are described.
Task 1
Task involved
As per the given facts Techno Products is a company that deals in computers and to attract customers it starts an advertisement campaign. The company made an advertisement according to which the first 10 customers that visit the company shop on 12th September 2013 will be able to buy the computer of worth £3000.00, for £1.00. Peter on the basis of the advertisement stays outside the shop with the hope to enter the shop and become one of the first 10 customers as specified by the company. When Peter wishes to buy the computer he was told that the advertisement was not seriously meant and if he wishes to purchase then he needs to pay the market price of the computer.
Thus, the task involves the question of offer, acceptance and consideration and whether Peter can force the company to sell the computer for £1.00.
Analysis
The above mentioned task involves the analysis of offer, acceptance and consideration.
In United Kingdom, the law of contract is a very important piece of legislature and the two most important feature of contract law through which a contract is established is offer and acceptance. The maker of offer is called offer or and the accept or is called the offere. An offer is an intention of the offer or which is conveyed to the offer with the hope to bind the offere with such offer and is held in Carlill v Carbolic Smoke Ball Company. The law of offer was highlighted in Harvey v Facey.An offer is communicated as per the law of the land when it moves from the offer or and received by the offere . But there are few communications which are not regarded as offer and are treated as invitation to treat. The law was highlighted in Pharmaceutical Society of Great Britain v Boots. It was held that in invitation to treat the maker of the advertisement or displayer is not an offer or, rather, he is only a person who invites the interested persons to make an offer. The offer so made when approved by the displayer consists of a contract where the displayer is the offere and the person interested in the advertisement is the offer or. The difference between offer and invitation to treat was also discussed underPartridge v Crittenden. In this case an advertisement was made wherein sale of some specific birds was submitted. However as per the law sale of such birds was illegal. The displayer was convicted but his conviction was quashed on the ground that the advertisement was an invitation and not an offer.
But in the law of contract, the communication of an offer is not sufficed but the offer must also be accepted to convert such offer in to a contract. Thus when the offer which is made to the offeree is consented without any variation then such consent is termed as acceptance in the law of contract. The importance of acceptance is discussed under Entorres v Miles Far East .
Further, when an invitation to treat is made than the person cannot rely on the advertisement and communicate the acceptance for the same. This is because no acceptance can be given when there is no offer. In cases of advertisements there is no acceptance as the display of advertisement is not regarded as an offer. Hence the party who is interested in the advertisement cannot give acceptance as there is no offer at all. Such acceptance is void in the eyes of law.
It is also submitted that when an offer is made to the world at large along with a condition that if the guidelines that are attached with the advertisements are followed then such advertisements are considered to be an offer to the world at large and the person who fulfils such conditions is said to be complied by the offer and furnish his acceptance as per the law of contract and thus can bind a valid contract with the displayer of the advertisement.
Further, another element that is needed for valid contract is consideration. It is something which is made in exchange of a promise and is held in Dunlop v. Selfridge. There are few rules that should be undertaken with respect to consideration. These are:
- It should not be past;
- It should start from the promise;
- It should be legal;
- It should be requested;
- It should be sufficient;
Thus, this is the relevant law that guides the given circumstances.
Application of analysis
It is submitted that the advertisement that was displayed by the company is just an invitation to treat or an invitation to offer and no direct offer was made by the company. Any person who is interested in an advertisement must make an offer which when approved by the displayer results in the formation of a contract. Display of advertisement was never considered as an offer rather they are always categorized under the head of invitation to offer. Thus, since no offer was anytime made by the company hence Peter cannot force the company to sell the computer for £1.00. It is Peter who must initiate with the offer which if approved by the company will allow Peter to claim the computer under the law of contract.
Advice to the client
It is advice to Peter that since no offer was made hence there cannot be any acceptance from the side of Peter and hence there is no establishment of a valid contract between Peter and the company and hence Peter cannot force the company to sell the computer.
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Task 2
Task involved
As per the given facts of the case, Jack wishes to buy a telephone and visits a shop where the sales assistant informs that he must sign a contract as Jack wants to buy the phone on the basis of 12 month contract. Jack signs the contract without reading the contract. After purchase the telephone was not working properly. He visits the shop and submits that since the telephone is not working properly thus the same must be replaced. It was submitted by the sales assistant that the shop is not obligated for the repair or the replacement of the telephone as per the exclusion clause that was specified in the contract that was signed by him.
Task 2 involves the question of express and implied terms including exclusion clauses.The main task that involves is whether Jack can force the shop for the repair or the replacement of the telephone and whether he is bound by the contract or not.
Analysis
As per the prevalent law in the United Kingdom’s there are several terms that are part of a contract when established amid the parties. Some terms are expressly mentioned in the contract and some are not. These terms are called express and implied terms respectively.
One of the express terms that are most commonly found in the contract amid the seller and the consumers is the exclusion clauses or terms. Exclusion clauses are the clauses that excludes are mitigates or restricts the liability of the seller in few cases or instances. Thus, if the cases which are bound by the exclusion clauses arises then in such circumstances the consumer has no power to obligate the seller of any compensation or replacement of the goods as the liability of the seller is excluded by the exclusion clause. The concept of exclusion clause was explained in the leading cases of Olley v Marlborough Court & Thornton v Shoe Lane Parking. It is the duty of the court in consumer contracts to look into the fairness of the exclusion clause so that no injustice is caused to the consumer and the same was held in the leading case of Glynn v Margeston.
Apart from express terms there are few implied terms that bound the party to the contract. In consumer cases there is an implied term that the contract that is established amid the seller and the consumer must not be abuse and must be fair in its nature. It is submitted that if the goods that is supplied to the consumer is faulty and does not honour the purpose for which it is supplied the it will hold the seller accountable even of the consumer is bound by the exclusion clause as specified in the contract that was entered amid the two. In the leading case of Hollier v Rambler Motors it was submitted that an exclusion clause will not save the seller if the consumer is facing unfair contractual terms. It was held that the consumer is not expected to remember each and every clause if numerous continuous contracts are made. In this case the garage was held liable to compensate the consumer and was not allowed to rely on the exclusion clause.
There are various other acts that deal with the unfair contract terms and help the claimant. These are UCTA 1977,UTCCR 1999 etc.
Thus, this is the relevant law that guides the given circumstances.
Application of analysis
After understanding the law, the same is applied to the given facts. It is submitted that when Jack purchased the telephone he specified the purpose for which he is buying the telephone however the telephone comes out to be faulty. It is submitted that though the shop is not obligated to replace or repair the telephone under the law of contract as they are guarded by the exclusion clause. But it is submitted that as per the Unfair Contract Term act 1977, Jack is protected and the seller is liable to Jack even if there is exclusion clause as the same is unfair and the consumer is ported as per the unfair contract act.
Advice to the client
It is advised to the client that since the terms that is included in the contract is unfair and by the applicability of such term the seller is gaining unfair advantage to himself at the cost of the client thus, Jack can sue the shop even after the liability of the shop is restricted by the exclusion clause. The clause will not protect the seller as the term is unfair as per the Unfair Contract Term act 1977.
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Task 3
Task involved
As per the given facts of the case, Patricia was a passenger in a train which went into liquidation, namely, “Safe and Steady Trains”. However, the train was crashed with another train and because of the accident she broke her leg. The main reason because of which the crash took place was that the driver of Patricia’s train fell asleep. Thus, Patricia wishes to bring a claim in negligence against the train driver.
Task 3 involves the question of duty of care, breach of duty and causation.And whether Patricia can bring a claim of negligence against the company?
Analysis
In United Kingdom’s negligence is defined when a person is hurt or sustain injuries because of careless actions of some other person and the person who has acted carelessly has a duty imposed in law to protract and take precautions so that no injury is caused to such other person. Negligence is a tort law and imposes a duty of care of certain level on a person which when breached resulting in damage to another makes the defaulter liable under the law of negligence.
In law of negligence there are three elements to prove. These are duty of care, breach of duty and damages.
Duty of care – it is the first duty which should be furnished. Where two persons are in contact with each other so that the actions of one may hamper another then they are considered as neighbours and every person has a legal duty to protect his neighbour. This duty is termed as duty of care under law of negligence and was established in Donoghue v Stevenson .
Breach of Duty and Harm - If the duty of care is breached and the plaintiff sustains damages or injury then the defendant is liable to compensate the plaintiff for the resultant injury . There are several leading cases that help in understanding the law of negligence, these are, Caparo Industries v Dickman&Smith v Littlewoods Organisation Ltd.
Negligence in Master servant relationship - Further, the law of negligence has full applicability in cases of master servant relationship. Ant if the employee causes injury under the law of negligence then the employer is liable for the same under vicarious liability. The concept was held in the leading case of Home Office v Dorset Yacht Co.
Click to explore Unit 6003 Managing the change process AssignmentFurther many times there are instances wherein one person has a control over the other, such as, master –servant relationship or parent-child, wherein the controller has an obligation that the conduct of the other person must be so controlled so that no damage is caused to any third party. But if damage is caused then the controller will be held liable under the law of negligence.
Thus, the law of negligence is extremely important and if the duty of care is breached which results in harm then the defaulter can be held liable under the law of negligence and the rule also applies in cases of driving as well.
After understanding the law of negligence the same is applied to the given facts.
Application of analysis
As per the given facts it is because of the actions of the driver that the crash took place. It is submitted that there exists a duty of care upon the driver that the train must be driven with such precaution so that no injury is caused to the passenger. However, if such duty of care is not taken care of off and injury is caused because of such breach then the driver is liable under the law of negligence. However, instead of driver the owner of the train can be held accountable if it can be proved that the actions of the driver are controlled by the owner under vicarious liability. In the present circumstances, the accident took place because the driver of the train fell asleep. Thus, Patricia can bring a claim in negligence against the train driver and the owner of the company.
Advice to the client
It is advised to the client that it is because of the breach of duty of care of the driver that she sustains injuries thus she can validly bring an action under the law of negligence against the driver of the train and the company.
Task 4
Task involved
As per the given facts of the case, Paula was invited to a job interview with “Pushing and Pulling Ltd.”The building under which the interview is being conducted is solely occupied but not owned by “Pushing and Pulling Ltd.”, when Paula entered the building for interview, she tripped over a cable that was running across the reception area at floor level. Further, there were no warning notices advising visitors to the building to take care with regard to the exposed cable.
Paula now wants to bring a claim against “Pushing and Pulling Ltd.” under occupiers’ liability legislation. But she is worried that she might have fallen because she wrongly took the medicine which she used to take for a virus and thus worried whether she will succeed in her claim or not.
Task 4 involves the question of occupier’s liability and defences and whether Paula can succeed in her claim or not? Whether the defence of contributory negligence will prevail or not?
Analysis
Occupier’s liability means the owner or the occupier of the land has a duty of care towards all such persons who visits his land. Thus, even if the person is not the owner of the land but is in its occupation then he also stands on the same footing as of the owner and duty of care must be furnished towards the visitors. In United Kingdom, the occupier liability is dealt under the Occupiers Liability Act 1957 and Occupiers Liability Act 1984. The first act deals with lawful visitors and the second act deals with persons other than his visitors.
Further, whether the person is an occupier of the land or not is factual in nature and is held in the leading case of Wheat v E Lacon& Co Ltd . Also, it is not necessary that the occupier must be in physical occupation of the property and is held in Harris v Birkenhead Corp.
The act of 1957 deals with lawful visitors and submits that the occupier of the property (fixed or movable) has a duty of care towards his lawful visitors. The occupier must protect the visitor’s so that no death, damage to property or personal injury is sustained by the visitors. A person is considered as a lawful visitor when such person is an invitee, licensees, persons allowed to enter as per the terms of the contract or under the right conferred by law. The concept of lawful visitorswas held in the leading case of Lowery v Walker & Edwards v Railway Executive.However, the act has no application over visitors, who are not lawful, such as, trespassers, persons who extend their power to enter the propertyetc. and is held in McGeown V Northern Ireland. The duty that is imposed upon the occupier is a common duty of care and is mentioned under section 2 (2) of the act. The concept was held in the leading case of Salmon v Seafarer Restaurant.
See solution of ECB College Aspects of Contract and Negligence in Business
Further, the occupier of the property can discharge his duty to take care if warning signs are placed at the premises and the visitors then chooses to visits the property at his own risk. The concept was held in the leading case of Roles v Nathan but the concept is not extended to obvious risk.
The occupier can though protect his position in few cases and are termed as defences. These are:
- Volenti non fit injuria – when the visitors willingly accept the risk then the occupier is under no obligation to provide protection and thus there is no occupiers liability;
- Contributory negligence- when the visitors is theme self involve for the risk then the compensation that is claimed from the visitors can be reduced under the concept contributory negligence. It means that there is contribution of the plaintiff because of which the loss is sustained by him and thus the negligence is contributory and is held in White v Blackmore;
- Exclusion of liability- Thus, the above mentioned law of contributory negligence guides the given facts and circumstances.
Application of analysis
As per the given facts Paula was a lawful visitors in the premises of the building as she was invited for interview thus, it becomes the lawful duty of the occupiers of the premises to give adequate protection to their lawful visitors. Further, the company has nit placed any warning signs with respect to the cables. Thus any injury sustain by Paula will make the occupier of the premises liable. However, if it can be proved by the company that there were actions of Paula that had resulted in the damage caused than the company can take the defence of contributory negligence in order to mitigate their compensation.
Advice to the client
It is advised to the client to Paula that Paula can claim compensation from the company on the ground of occupiers liability but the company may mitigate the compensation amount if they can prove that Paula was contributory negligent in the damage sustained by her.
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