Delivery in day(s): 5
Concepts and aspects of law of contract and law of tort are discussed in the report. Report begins with stating the essentials of the contract. These essentials are indispensable for a valid Aspects of Contract Business . Then report goes on stating these essential by applying them to given situations or discussing them via cases. Online or contract via means of communication are also dealt with. Moreover, concepts of vicarious liability, tort and negligence are discussed. Liability in contract and liability in torts is tried to be differentiated. The report has view to provide ease to readers to understand the concepts.
Offer and acceptance: For a contract one party has to offer his willingness to be done by other person. This other person must accept the offer as it is. The mode of acceptance may be determined by the proposer. Moreover, here must be at least two parties
Consideration: Consideration paves the base on which contract flourish. It is main element instil life in the contract. Consideration is “a valuable consideration, in the sense of the law, may consist either in some right, interest, profit or benefit accruing to the one party, or some forbearance, detriment, loss of responsibility given, suffered or undertaken by the other.”
Consent: Free consent is must as it makes it clear that party is willing to form the contract. Consent means ‘meeting of mind’ of the parties. In other words, agreeing on same thing in same sense. Consent to be free should be devoid of misrepresentation, undue influence, threat etc.
Intention to create legal relation: People sometimes deal in social way and sometimes in commercial way. Promises made in case of former and not desired to create a legal relation but in later case they are desired to crate legal relation. The prevailing rule suggests that ‘intention to create legal relation is assumed in the latter case. To join friend in party is instance of former and to deliver four bags of tea for certain amount is the instance of latter
Legal capacity: Parties to the contract must be of sound mind, major, not restricted by law and should be solvent. These make the parties legally capable to form a contract.
Illegal and void contracts: A contract devoid of any of the requirement stated above would be of either void or illegal in nature. Hence, all these must be present for a contract to be a valid one.
Distance selling contract: Change in mode of biasness has changed and made new aspects of law also. To make an effective contract offer is to be accepted as mentioned. For this it is not necessary that parties should be present face to face. For instance, contracts by way of e-mail, online contracts, or contracts do not require parties to stand face to face. These are termed as ‘distance selling contract’
Carlill v Carbolic Smoke Ball Co., 1893: In this case company by advertisement stated that any one if caught influenza after having the balls in the manner prescribed would be awarded with £1000. Companyfor the same purpose deposited the amount with alliance bank. Court held that the words of the company have effect to give rise to legal relation. Intention was there and assumption is supported by the acts and words of the company. Further, unilateral contract can be made and means of acceptance may be rendered by proposer.
This is a case of invitation to treat. David placed the advertisement to allow others to make offer.
Offer was there when David stated quotation as per terms discussed among David and William. William gave unqualified and absolute acceptance to the quotation. Hence, willingness of David was accepted by William. Consideration instils life line to a contract and consideration of £18000 was quoted by David for the labour and material. Hence, consideration was there. Intention to create legal relation was there as it was a commercial transaction and David paid £1000 in advance for the work. Legal capacity was there. They were major, of sound mind and were not barred by any law.
If party is silent on any offer than such silence cannot be called as acceptance as stated by court in Bindley’s case
Given are the terms to be ascertained that whether there was any violation or not:
Condition: “A condition is a major term of the contract which goes to the root of the contract. If a condition is breached the innocent party is entitled to repudiate (end) the contract and claim damages.”
Warranty: warrantiesare important but unlike conditions. They are of fewer significance are not basic to contract. Its breach does not attract termination. They are minor terms
The date stated by the William was not accepted by the David. David maintained silence as to the offer. What William said was actually a request. Hence, there was no legal relation raised,no legal relation means there was not any violation.
According to my judgement, due to the shortfall of the labour David asked to William for extra £2000 in order to complete the work in time. William assented to that absolutely and unqualified manner. William agreed for £2000 asked by the David. This gave rise to contractual liability. Further, William made himself bound to pay £2000 and David put himself under the obligation to complete the work in time. Hence, it is evident that David has right to claim damages in case William breached to pay the amount agreed.
Liability in tort- “Torts are civil wrongs recognized by law as grounds for a lawsuit. These wrongs result in an injury or harm constituting the basis for a claim by the injured party.”
In torts unliquidated damages are provided. Unliquidated damages are those in cases where damage cannot be ascertained before breach. They are not fixed amounts.
Contractual liability- when parties form contract with intention to create legal contract relation, they also give rise to certain obligations and liabilities. This liability can be enforced through court f party breaches his promise. This force which secures the party in one way and push the party in another way as to the promises and consideration of the contract. Here both damages and penal provisions apply. Here, liquidated damages are provided
Negligence done by carelessness causing injury to another person is tort of negligence. Here, negligence is devoid of intentional act. Such injury when caused gives rise to liability in negligence
In order to establish tort, following elements are to be shown-
Vicarious Liability- When the employer has to face the consequences of the acts of the employee or subordinate person; such implication stands due to principle of vicarious liability
Respondeat Superior: This doctrine has its root in the aspect that a master has control over the servant working under him as he is employed to perform task appointed or said by the employer. Because master has the control, he is liable for the tort of employee
Within the course of business: The master has no absolute liability for the tort of the employee. One escape is that employee has to act in ‘course of businesses. If employee’s act was not in the line of employment that master is safe from being liable. Moreover, if employee is little divergent from the work assigned still employer is liable
Certain remedies are also there:
The case shed light over the issue of ‘duty to care’. In the case, manufacturer was held liable under the rule of ‘duty of care’. The manufacturer’s act caused injury to the claimant. Court observed that it was quite visible that the manufacturer has ‘duty of care’ towards ‘eventual consumers’ as goods is to be consumed by them.
(Hill v Chief Constable of West Yorkshire, 1989)Case rendered that police is immune from having ‘duty of care’ towards ‘individual victims’. Moreover, proximity can be absent if victims are large in member without implicating police.
Rule:Rots of ‘duty of care’ lie in the aspect that doer must know effect of his act and that’s so in a reasonable manner. Such reasonableness lies towards neighbours and does not include general public in its preview.
Defences: Manufacture contended that there is no ‘duty of care’. The injury could not be foreseeable reasonably. But court contented that it was very much evident that goods are to be consumed by consumers as they were manufactured for that only. On the other hand, police contended that they are under no ‘duty of care’ against public at large. The defence is very sound as it is in line with the rule i.e. ‘duty of care’ lies towards neighbours but not towards ‘general public’.
Driver does the negligent act and caused injury. Employer was implicated due to the negligent act of employee done in ‘course of employment’. (Limpus -v- The London General Omnibus Company,, 1862). In the same way, in the given situation employer would be implicated if driver acts negligently in ‘course of employment’ but if such act is not done under line of employment than employer has no obligation. Hence, in the given situation employer would have liability if employee does any reckless and negligent act in line of employment.
The report suggests the indispensable nature of the essentials of the contract. The elements are discussed by introducing them and by putting them in given situations and thus clear every aspect. The situation of David and William clears the essentials of the contract in a great way. Moreover, dynamic aspects of contract due to modern business law dealing are discussed via distance selling contract. Later, discussion over obligation arises under law of tort and obligation arises in the law of contract are discussed. They have differentiated also while discussing.
Vicarious liability concept is also focused upon.The reasons of liability and its escape are discussed. The same is depicted by applying them to given situation. Overall, the report is dedicated to clear the concepts and pave easy way to readers to clear the doubts.
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7. Felthouse v Bindley ((1862) ) 11 Cb (NS) 869.
8. Hill v Chief Constable of West Yorkshire (1989) 2 WLR 1049.
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