Delivery in day(s): 5
Every contract involves the presence of certain elements with regards to the offer and acceptance process. The basis of a contract is the exchange of goods and services at a price regarded as consideration. A standard contract requires for it to be inclusive of all the basic elements. The contract may be of different types such as bilateral and unilateral. The impact of such contracts is different depending on the nature. The liability so arising from the breach is dependent on the types of terms involved under a contract. The liability arising under contract is different from the one arising under law of tort. The different liabilities arising under tort of negligence and vicarious liability are to be studied in the present assignment.
An offer is a statement containing the terms and conditions of a transaction to be undertaken between the parties. The transaction shall contain the elements of the consideration, intention and acceptance. The offer is regarded as the valid offer if it is clear and expressive to understand the meaning. The offeree shall be specifically presented with the offer and not merely an invitation to offer. The invitation to offer is merely an express of the possibility of the transaction to the prospective offerors. Therefore, when the invitation to offer is made it is merely inviting the offer from the buyers. For a contract to take place it is required that the offeree has presented the acceptance to the offer so made. An offer may be rejected, withdrawn, failed through death or lapse of time or be accepted. When the offer is accepted, it may be said that the contract is entered into. The acceptance shall be made on time, be communicated and be expressed. If the same is done through post then it will become valid on being posted. (Adams, 2008)
The contract furthermore requires the parties of sufficient capacity and has the intent to enter into a contract. The capacity of the parties to the contract is determined based on the eligibility to understand the purpose and nature of the contract. When the contract is being entered into the parties shall be of sufficient capacity that the contract is understood. Therefore, the parties are expected to be majority of page be of sound mind and financially sufficient to be able to enter into the contract. The parties entering into the contract should also exchange an amount for causing the detriment in exchange. The amount of consideration will help restore the value so lost by the parties at the time of contracting. It is necessary for the consideration to not be of past nature be sufficient, move from the promise and not arise from an existing contractual or social duty. If the contracts so entered into is breached on basis of any term or condition then the same may be claimed for if the intent of the contract is determined between the parties. If the contracts are entered into to fulfill social transaction then the same may not be enforceable under the law for being social in nature. However, if the same is entered into for commercial purposes then the same will be enforceable under the law even if the same is not mentioned. As the commercial contracts are assumed to be for legal enforceability the clause regarding the same may or may not be present in such contracts. (Andrews, 2011)
Face-to-Face contracts are those contracts that are entered into by the parties’ existence around each other. It would mean to be that the parties are in front of each other and have a common intention to enter into a contract. The parties shall be in proximity that they can converse and discuss the contract and design the acceptance as agreed. If a contract is entered into face to face then the same would be enforceable under law a it is presumed to be existent with a common intention however in case of breach it would be considered to be lacking the enforceability for the lack of written presence in case of oral contracts. These are easier to enter into as they prove to be time saving. (Finch, 2007) When the terms and conditions are presented in writing and the same is agreed to in writing then such contracts are considered to be written contracts. These contracts are easier to be established under business law for having written evidence regarding the duties and obligations of the parties to the contract. The breach thereby may be determined explicitly by studying the contract. Such contracts however, are time consuming and lengthy to study.
Whereby the sale is made online or a distant place then such contracts is regarded as distance selling contracts. These contracts are entered into without any physical interaction or verbal interaction between the parties. When a sale is made through distant part of the world the distant seller is required to provide the details of the product, delivery details, contact details and such other aspects in writing. Furthermore, the delivery arrangement and the complaints shall be handled through the provided address The expiry of the goods and delivery time shall be clearly stated at the time of making the sale. For such contracts to be enforced it is required that the same are governed by the Distance Selling Regulations 2000. (Meyer, 2010)
Conditions are regarded as an essential and primary part of the contract. The condition is the basic purpose of the existence of the contract. If the contract conditions are not fulfilled then the contract would be considered as void. Therefore it is important that the condition of all types such as the condition subsequent, condition concurrent and condition precedent are complied with. A warranty is regarded as that element of the contract that if goes unfulfilled then the same would be met with damages, injunction or in some cases specific performance. The damaged party may not be able to discontinue the contract but continue with the same after claiming the damages. (Andrews, 2011)
Whereby it becomes difficult to judge whether a term is a condition or a warranty the effect so caused from the same because of the breach determines the nature of the contract. Such terms are classified as the innominate terms and are important in certain situations and unimportant in others. The damages so to be applied are different depending on the nature of the term. Exclusion clauses are clauses restraining the claim to be made in case of breach of contract. Such clauses shall only restrict the affect of breach that is fair and reasonable. Clauses restricting the liability in case of death or injury are considered invalid. Such clauses are required to be included either through notice, signatures or the previous course of dealings. (Adams, 2008)
Case 1: A couch was advertised in the newspaper for the purpose of sale. The advertisement so made was at a price. It will be considered as an invitation to offer. The mere intention of the advertiser was to inform the people of its availability and the interested buyer quotes that it may be sold if a good price. Carol wanted to acquire the couch at the given price and therefore, made an offer to the advertiser. Subsequently the advertiser did not accept the same. As no acceptance was communicated it may be stated that the parties entered into no contract Fisher v Bell. (Collins, 2008)
Case 2: Accordingly a position was open with the cyber-security firm that Devi was interested in. He applied for the position and instructed his father not to interfere with the hiring process. Devi after completing the interview was successful in gaining the job and was made an offer on 12th April that was accepted by him the same day. However, his dad was uncertain and thought of making an offer of 150,000 Pounds to the company for hiring his son. The company now wants to claim the sum from offer made on 13th April. It may be stated that the offer so made by the father is not a valid offer as it contains the event that has already occurred in the past and the past consideration is considered invalid thereby, making the contract invalid. Therefore, the company and the father do not enter into the contract Lampleigh v Braithwait. (Vettori, 2007)
Case 3: In the present scenario a couple had gone to a restaurant to have a dinner. At the entrance desk they checked in their coats and were handed over slips in exchange of the same. After having the dinner at the time of making the payment the man wanted to reach for the wallet but realized it was still in the coat. When he went back to check it was present in the coat. The slip so handed over stated that the coat will not be responsible for the theft or loss from items kept in the coat at the time of checking in and the hotel now denies of having any liability. Therefore, the couple now suffers from the loss of wallet. The exclusion clause so inserted was after the coats had already been checked into and do not form part of the contract. It would mean that the hotel will be liable towards the couple to compensate them for the loss suffered Curtis v Chemical Cleaning. (Andrews, 2011)
Case 4: The tenant in the present case had paid for the improvements so done to the property. In turn the property owner decided not to increase the rent for the next-five years. It so happened that the property owner died a year later. It was then the new owner has increased he rent and denied to pay for the improvements so included in the property because of which the value of the property increased. The tenant now wants to claim for the improvements. It can be stated that the tenant would be entitled to the cost of improvements as under the tenancy agreement the it is an implied duty of the property owner to reimburse the tenant for the amount spent on improvements of the property as it is not owned by him. Therefore, the new property owner would be liable to pay for the amount so spent by the tenant Lowe and Another v W Machell Joinery Ltd. (Meyer, 2010)
Case 5: In the given scenario it is required to analyse the effect of different terms is to be studied. The policy holder at the time of filling out the policy forms had provided the wrong information interpreted to be intentionally as the answers were known to the policy holder. Therefore, when an investigation was conducted and was found that the information did not match the actual status then the policy may become void. This is because the questions so asked were directly related to the nature of the contract and the concerning terms were considered as a condition. Therefore, for the breach of a condition the company may be able to void the policy so undertaken by the user Poussard v Spiers.
Case 6: He policy holder in the present case had filled out the information wrongly in the form. Herein, the previous claims and details f the car were kept hidden which would amount to being a misrepresentation of the condition. The misrepresentation is of a condition term because it directly affects the nature of the contract. For being untrue and dishonest the breach could be said to be undertaken by the policyholder for whom the company would be allowed to void the policy ab initio. A misrepresentation is considered as a term if it directly affects the contract and motivates to enter into a contract Bisset v Wilkinson. (Andrews, 2011)
Contractual liability and liability under tort are both similar yet different in some aspects. The nature of liability in two legislations is strict. This would mean that the liabilities so arising arederivative from the breach of duty itself. The claimant has to merely prove that a duty is breached. This would mean that the purpose of breach is not considered while determining the liability. The duty to perform has been voided and for that the breach is to be claimed for by the damaged party. However, following are the differences between the two branches of law concerning liabilities:
Liability under the tort of negligence arises from ignoring a duty that already existed. It means that the obligation to perform a certain thing is existing under a situation that when breached amounts to negligence. The duty of care so existing is present against the society and the same is breached causing potential harm to anyone in the society. The breach so cause should be so great that it results in causing physical, psychological or monetary damage. The reason behind the breach of a duty of care arises from the ignorance or failure to perform or undertake the duty. When a driver is driving recklessly on the road he would be considered to be risking the safety of the pedestrians and people present on the road. Therefore, the driver would be considered to be driving in negligence for which he would have to compensate for the damages so caused. (Giliker, (2010)
It may be discussed under the case of Donoghue v Stevenson that the relationship between the affected party and the damaging party may or may not be direct but the duty of care is owed to anyone who may be affected from the supply of the product. This would mean that the manufacturer is required to under take the duty of care towards direct and indirect users to maintain the safety of the same against the society. Furthermore the different aspects that may be considered under the tort of negligence are determined under the case of Caparo Industries. Herein, it was determined that if the negligence is to be determined then the three factors are to be considered that are, remoteness of damage, causation and proximity. The proximity of the act and the damage shall be present. The cause and effect shall exist even if it is remotely related. If the act so causing the damage were foreseeable then the damaging party would owe a duty of care to lookout and avoid the same. (TAN, 2008)
The types of defences available in such circumstances are that of contributory negligence, minor negligence or the volenti non-fit injuria. The contributory negligence determines that both the parties are involved towards the breach so committed thereby contributing towards the damages so suffered. The damaging party would only be liable towards the extent of involvement under the situation. If the negligence is committed by the minor it would be said that the same was not in the entire awareness as the minors are assumed to be lacking the judgement of the situation in order to realise being negligent. The defence of volenti non-fit injuria would mean that the act of undertaking the duty of care was voluntarily waived off whereby the damaging party would not be liable unless the same is done to keep the duties that were more important at the time. (Cooke, 2007)
The liability under the tort that makes one party liable for another is known as vicarious liability. This would mean that the actions performed by one person would be responsibility of another party for which it would be liable. Such responsibility is generally arising from the employer- employee relationship . Herein, the responsibility to perform the functions is delegated by the employer for his own benefit. The employee merely does that is asked of him. Therefore, the affects so arising are the responsibility of the employer for delegating the work. The employer would only be liable if the employee breaches in the course of employment and not the personal motivation. The vicarious liability may not be applicable if the act to perform is illegal or the means to achieve it is illegal. (Morgan, 2011)
Such type of liability also exists in the relationship of master-servant, partnership or agency. The relationship is said to be such under master servant according to the Salmond’s test because the servant is expected to be performing the acts in its official capacity for most part of the day making it unable to be differentiated between personal or professional. The partners are expected to be performing in their official capacity on behalf of each other making each responsible for the acts of the other partner. The agent is regarded as performing the duties so delegated to him by the principal for his own benefit. Therefore, the same would be considered as performing in the official capacity making the relationship vicarious in nature. (Cooke, 2007) Accordingly, under the Health and Safety at Work Act, 1974 requires the employer to make sure that the living standards and working conditions are maintained for the welfare of the employee. For the same the equipment, water and sanitation facilities shall be of standard. According, to the Occupier’s Liability Act it is essential for the occupier to make sure that the visitors both permanent and temporary are safe on the premises. For the same purpose the occupier is required to warn the visitors by putting up warning signs on such places whereby the same is visible and accessible by everyone.
Case 7: According to the case facts, the patient suffering from chest pains and breathing problems approached the hospital to be treated for the same. Being a busy hour the doctor asked the nurse to prescribe him over the counter medicines without performing a thorough check up. The patient then want back home and found dead the very next day. The relationship however under the present case is not direct. Herein, it is noticed that the cause of death is the toxic mould and not the medicines. On looking closely we will observe that the doctor had performed negligence in his course of employment but the same did not cause the death. (Giliker, 2010)
Applying the but-for test it may be derived that the doctor should have undertaken a check up for the patient as it may have led to be a serious illness. In the similar circumstances the over the counter medicines may not necessarily be sufficient. Therefore, the doctor will be considered having conducted a professional negligence. The but-for tests apply that the cause and effect shall be direct. The cause was pneumonia from a toxic mould and not the medicines. The doctor will be liable for the professional negligence but not for the cause of death. (TAN, 2008)
Case 8: It can be determined from the given case study that the driver was an employee of the company that was asked to pick up the client from the airport. The driver on his way over stopped to drink while he waited. He then received the client and drove back wherein the accident was caused and the damage was caused to the car as well as the client. It is required to be determined whether the damages so caused werefrom professional duty or personal. The act of drinking was not a part of his employment. But to pick up the client was. The accident so occurring arises from the act of driving while performing the professional duty. Therefore, the negligence so occurred was during the course of employment. The scope of employment and the damages are related thereby giving rise of vicarious liability in the given scenario. The factors such as foreseeability and causation are directly influential in causing the accident. The driver could have judged the result of driving when drunk. Therefore, the damages so arising are the responsibility of the employer even if the same occurred from drinking it was for the a duty so assigned by the company. Thereby, the client may be able to claim the damages from the company. (Cooke, 2007)
Case 9: In the case of Ready Mix Concrete (South East) V MPNI, it was determined by the judges that the if the employee is employed by more than one employer at the same time then the employer having he direct control over the actions of the employee would be responsible for vicarious liability in case of damages so arising from the performance of official duties. In the given case study it is determined that the supermarket had delegated the responsibility of the health and safety standards to another company. However, one day when the employees were loading and unloading the truck, one such employee trip and fell while the plank fell over on to another employee. The employee was injured and damaged. He now wants to be compensated. It may be determined that the employee when fell over while causing the damage to a fellow employee he was performing in its official capacity. The Supermarket states that it won’t be liable as the same was delegated to another company. But according to the case law presented it may be stated that the employer having the direct control over the actions of the employees was that of the supermarket and not the other company. Therefore, this may give rise to a vicarious liability towards the supermarket and not the other company. The employee so damaged may be able to claim the damages from the Supermarket. (Morgan, 2011)
In conclusion, the process of entering into a contract has been discussed in the given assignment. The various elements involved and the different types of contracts and terms have been illustrated with the help of examples and legislations. The importance and impact of the contracts has been defined while studying the case studies so provided. The breach and its effect under ac contract is determined. Furthermore, the liability under contract and tort is considered different yet similar in certain situations. The relationship between the two liabilities has been explained. The different types of liabilities arising under law of tort is studied and presented to solve the case studies so provided.
Andrews, N. (2011). Contract law. Cambridge: Cambridge University Press.
Meyer, L. (2010). Non-performance and remedies under international contract law principles and Indian contract law. Frankfurt am Main: P. Lang.
Collins, H. (2008). Standard contract terms in Europe. Alphen Aan Den Rijn: Kluwer Law International.
Vettori, S. (2007). The employment contract and the changed world of work. Burlington, VT: Ashgate Pub.
Giliker, P. (2010). Vicarious liability in tort. Cambridge, UK: Cambridge University Press.
Cooke, P. (2007). Law of tort. Harlow: Longman.
TAN, S. (2008). Vicarious Liability. Internal Medicine News, 41(24), pp.36-37.
Morgan, P. (2011). Distorting Vicarious Liability. Mod. L. Rev., 74(6), pp.932-946.
Bell, J. (2013). THE BASIS OF VICARIOUS LIABILITY. C.L.J., 72(01), pp.17-20.