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Tort and contract are two branches of law. They both are civil wrong but despite their various similarities there are various dissimilarities between the two which have been enumerated in the report herewith in brief on the ground nature of right, consent of parties and on the type of remedies. This Essential Elements of Contract Law Assignment comprises of all the elements of contract, negligence and vicarious liability discussed in brief.
There are following four elements of contract-
Face to face contract is a contract where the parties negotiate the terms in contract in their physical presence. There can be contracts such as the Distance Selling contract whereby the parties are unknown to each other such as online shopping.
The Distance selling Regulation properly known as the Protection (Distance Selling) Regulations 2000 was passed in UK for the protection of the consumers who enter into Contracts and Liabilities with the supplier at a distance. The underlying principle for proving such protection to the consumers is that the consumer are not benefited to meet the supplier face to face for inspection of goods or services that has been offered for sale (Out-Law.com, 2010).
The effect of the words in the advertisement placed by the company in the case of Carlill v Carbolic Smoke Ball Company 1892, informing the readers that it had placed £1000 with Alliance Bank to meet any possible claim was that it constituted a binding unilateral offer that could be accepted by anyone who performed its terms. In a unilateral offer the party making promise to reward is under obligation to perform their promise on the completion of the performance of the act.
In the very first agreement between David and William, dated 01/05/2014 there was no elements of contract because an advertisement is an invitation to treat and does not amount to offer (Partridge v Crittenden, 1968). William made an offer to David after which David wanted 10 days for quotation.
On 10/05/2014, the acceptance of offer took place when David accepted the instructions given by William about the size of the gym and the facilities required. Since this is a commercial contract, the intention of David and William is to make a legal relationship (Esso Petroleum v Commissioners of Customs & Excise, 1976). The consideration that William was required to pay to David was £18000.
Even if William claims that David did not oppose, then also William cannot treat this as a contract because it is necessary that acceptance of the offer is very essential to complete the formation of a contract and the same must be communicated. Any inactivity or silence and silence will not amount to offer. When William informed David for the requirement to complete the work before 31 July 2014, it cannot be said that David accepted the term, because he did not say anything and silence does not amount acceptance (Felthouse v Bindley, 1862). Hence, no contract was formed between William and David.
David has not violated the terms of contract when he informed William on 25 June 2014 that he would not be able to complete the work before 31 July 2014 because no contract was formed between William and David regarding acceptance of this term.
David cannot claim for the extra £2000 for completion of his work because he had an existing contractual duty to complete the gym and this act cannot be used as consideration for new promise. An existing contractual duty is not a valid consideration (Stilk v Myrrick, 1809).
The contract between the parties is contrary to public policy and is void for want of consideration.
The liability in tort arises when the wrongdoer violates some interests vested in another person which has been imposed by law (RMTSA, 1998).
For example- A negligently drives a car and thereby met accident with B injuring B very badly. It is imposed by the law that a person should take reasonable care while driving. A is the wrongdoer who has committed tort.
Tort is different from contract in the following manners-
The claimant must prove the following so that the court will establish occurrence of negligence-
Vicarious liability- Vicarious liability is basically where a person is held liable for the tort committed by another person. To make an employer vicariously liable for the tort committed by its employee the following three elements are required to be established-
Examples where employer liable for action of their employee-
Examples where employer was not held liable for action of their employee-
Both the cases of Donoghue v Stevenson 1932, and Hill v Chief Constable of West Yorkshire 1989, are the case of negligence whereby in the former the duty of care was established on the defendant while in the latter case, the duty of care by defendant was not established.In Donoghue v Stevenson 1932, and Hill v Chief Constable of West Yorkshire 1989 case, the defendants contended that they did not owe a duty of care towards their respective plaintiff.
I agree on the verdict passed in the case of Hill v Chief Constable of West Yorkshire 1989, where it was established that the police did not owe a duty of care. The police was not negligent in their detection and detention of the plaintiff. There are various functions involved when a police discharges their duty, and at times they may make mistake. Since it is in the interest of general public, liabilities cannot be imposed on the police for such negligence.
According to me, the verdict was just, fair and reasonable because I believe that there was no cause of action because there was no duty of care owed by the police in the detection of crime as it was in the interest of the general public.
Vicarious liability is a liability imposed on the employer for tort committed by their employee during the course of employment and for the acts authorized by the employer (Law Reform Commission Act 1968, 2001). Even if the taxi service is instructing the drivers that there should not be any negligent driving, yet the taxi service will be vicariously liable for any negligent or reckless driving if any of its drivers commit during the course of environment R v Seymour (E), 1983.
The taxi service some of following certain circumstances will not be held vicariously liable-
Contract is an agreement between two or more parties binding them legally. Offer, acceptance, intention and consideration are few elements that together constitute a valid contract. Negligence is basically carelessness and vicarious liability is a liability imposed on the employer for tort committed by the employees during their course of employment. Tort and contract are two branches of law with various differences.
ACCA. (2014). KEY ASPECTS OF THE LAW OF CONTRACT AND THE TORT OF NEGLIGENCE. Retrieved 11 2, 2014, from http://www.accaglobal.com/in/en/student/acca-qual-student-journey/qual-resource/acca-qualification/f4/technical-articles/key-aspects-of-the-law-of-contract-and-the-tort-of-negligence.html
Balfour v Balfour , 2 KB 571 (1919).
Beard v London General Omnibus Co., 2 QB 530 (1900).
Bugge v Brown , 26 CLR 110 (1919).
Carlill v Carbolic Smoke Ball Company, EWCA Civ 1 (1892).
Cheshire v Bailey , 1 KB 237 (1905).
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