Delivery in day(s): 5
Law of Tort and Contract Law Assignment
Diploma in Business
Unit Number and Title
Law of Tort and Contract Law Assignment
Following law of tort and contract law assignment is an attempt to analyse the various aspects of contract law and law of tort. The contract is said to be between the parties that have agreed to the terms and conditions so discussed. The contracting parties have to be bound by the performance of the contract. If the same is not performed the contract is said to be breached and the affected party may claim for the damages. The liability arising under law of tort arises from the non-performance of a duty already exiting for being part of the society. Both the types of liabilities are to be discussed in order to determine the basis. The liabilities arising under law of tort are to be discussed with respect to concerning legislations.
According to the scenario provided it may be stated that Peter Abraham has to run a business as a contractor. As he is the sole person running a private business he has a very little knowledge about the legal functions of the contracts. The following details would help him determine the validity and enforceability of the contract so formed while carrying out his business.
While forming a contract, it is important to make sure that the first step is present to begin a complete process. Every contract is entered through an offer. An offer is a statement that includes the purpose of the contract and the terms that would have to be performed by the parties for which the contract is being presented. The offer should be express and clear to understand. It is important to know that the offer provides the foundation to the contract. It initiates the contract from discussing the offer to finalise the contract terms. The offer may be presented with a counter offer by the offeree to negotiate the contract. The counter offer may be made by each party until an acceptance of rejection of the final offer takes place. An offer is to be determined specifically for the contract. The offer differs from the invitation to offer. An invitation is determined to be a statement intimated by the seller for the availability of the product to be sold if the right offer is made. The invitation to offer may or may not include the sale price. Invitation to offer is not an offer and if the party approaches the seller it would be said to be making an offer for the production question. (Andrews, 2011)
The acceptance of the contract is the second marketing essential element of a contract. An acceptance explains that the offeree agrees to the terms of the contract. The acceptance shall suffice that the contract has been created wherein the parties have a common intent and purpose for coming together under the contract. The acceptance shall be clear to understand and determine to gather the right meaning. Thecounter offer would mean that the terms are only partially accepted for the reason which the alteration or addition is made under the counter offer. All the offers do not necessary need the acceptance. When an offer is made to the world the action so performed by the accepting parties is said to be the acceptance wherein the acceptance is not necessarily to be intimated but performed to create the contract. (Adams, 2008). When the acceptance is made the same shall be communicated through the acceptable means of communication under the type of contract. If the contract is to be accepted it shall be made orally, in writing or through post or mail. If the communication is through post the acceptance is said to be valid as soon as it is posted. It therefore is elemental to accept the offer to create the enforceability of the same.
Every contract shall contain the element of consideration that is exchanged between the parties. The exchange of the same is to be undertaken to provide the other party with the value so lost under the transaction so undertaken for the contract. The consideration is to be exchanged between the contracting parties only. The involvement of consideration ensures that the contract so made is valid under the law and categorised as a contract. The consideration is to be exchanged for being present, sufficient and free from any duty or obligation. The absence of consideration affects the contract as without it the contract is only a promise. (Collins, 2008). When the contract is being entered, it is important that the party’s laydown the purpose of the contract. The purpose and intent to enter the contract shall be known so that the enforceability of the contract can be determined under the law. The party’s intent in the contract shall be common in nature. The types of purpose that are identified under the law are commercial or social. The commercial agreements are entered by the parties that are not related with each other besides the contract. The social contracts are entered by the parties that are friends or family and know each other, other than the contract. It is an assumption that the contract so entered for commercial purposes are enforceable under the law unlike the social contracts. The social contract requires the same to be determined if the party want to create enforceability in the law at the time of breach.
The parties entering the contract shall be of capacity to determine the legality of the contract. If the party so entering the contract are not of capacity, then the contract is said to be void. The capacity of the party is judged based on legal age, financial stability and mental soundness. The party shall be fit while entering the contract or else the contract cannot be enforced under the law. The parties should enter the contract in their senses to avoid any confusion. (Meyer, 2010)
Contracts that are entered by the parties’ in person are known as the face to face contract. Such contracts are often known as oral contracts. These contracts are to be discussed through a conversation. The offer may be made in one conversation and the acceptance may be made in another conversation certain time later. The conversation shall be time limited by the offeror or the reasonable time so deemed fit under the law for the type of contract. These contracts are to be discussed in a way that the intent and purpose is clear in terms of the type of contract is clear. The face to face contracts are oral in nature and harder to be presented under the law for enforceability. The presence of the contract can only be made through the witnesses. The terms and conditions of the contract may only be established by the parties themselves that may vary per the memory of each party.
Contract that are discussed in written form are written contracts. The written contracts are entered by the arties through signing the document containing the terms and conditions of the contract. The terms of the contract are common between the parties and are to be established through a common intent of the document. The written contract can be presented in the court for the enforceability of the contract. He party shall not require to remember the terms by heart since the same are available under the contract document. (Richards, 2006)
Contracts that are not entered in person or being in same distance as each other are known as distance selling contracts. These contracts are entered from a certain distance that makes it difficult for the parties to interact otherwise. These contracts are mostly entered through online selling portals whereby the interested parties negotiate with the sellers to purchase a certain product. The seller must make the sure that the payment details and break-up are provided accurately. The Other such distance selling contracts are that of the telephonic contracts. The suppliers sometimes send free locusassignments.to advertise for the product. This advertisement is an invitation to offer whereby the interested parties would approach the supplier to enter a contract. The contracts that are sent through mail are an offer to the world whereby the parties that fill out the form provided enter the contract with the seller. (Collins, 2008)
While dealing as a contractor, Peter Abraham would come across various parties that want to form different types of contracts. These contracts might have different terms to be included that are common for every contract. These important terms to be noted are as follows:
- Condition: A condition is that part of contract which not performed renders the contract void ab initio. The condition is important to be performed under the contract because it is directly related to the purpose of the contract. The condition lays down what and why the contract is to be performed. It is the main reason the contract exists. The condition maybe performed at different stages of the contract such as the condition precedent, condition subsequent or condition concurrent. The conditions if breached may allow the damaged party to discontinue the contract from further performance.
- Warranty: Terms that are indirectly related to the contract are said to be warranties of the contract. These terms influence the performance of the contract but do not determine the complete performance. The non-performance of the warranty would not amount to voiding the contract. In such a case the damaged party may be able to claim damages, or specific performance. The warranties so offered may be of different types such as the lifetime warranty or the product warranty or performance of warranty.
- Innominate: Terms that are not able to be determined unless the same is breached is regarded as the innominate term. These terms are neither condition nor warranty. The effect of these terms changes under different situations and the same is determined when the breach takes place. If the breach affects the contract directly it is a condition and if not, then it is a warranty. (Cooke, 2007)
- Exemption: Terms that lay down the liability in regards with non-performance of the contract are the exemption clauses. The exemption clauses should be directly related to the contract’s performance for it to be valid. The terms restricting liability for the death or injury so caused from the performance of the contract are invalid. The enforceability of the exemption clauses is determined through the UCTA. If the exemption clauses are to be included under the contract through signatures, notices or previous dealings of same nature between the parties.
As per the case so provided it is determined that Carol needed a couch. She came across an advertisement for the same. Carol had read that the couch was being offered at a certain price. She approached the advertiser by sending a mail stating that the she is willing to buy the couch at the given price under the advertisement. It may be said that the advertiser had provided an invitation to offer when providing for the availability of the couch. When Carol posted the mail, she was presenting the advertiser with an offer which may either be accepted or rejected by the advertiser. Thereby, unless an acceptance of the offer is made no contract is said to have been entered.(Collins, 2008)
As per the case facts, Devi had an interview with an IT company for which he was excited. He had asked his father to not interfere with the hiring process as he might have an influence. After the interview the company was satisfied with Devi’s performance and thereby, he was presented with an offer letter on 12th April. However, Devi’s father not knowing this had offered the company a certain amount of money to hire his son on 13th April that was accepted by the company and now being claimed. It is observed that the offer made by Devi’s father had been for an act that has already been taken place. Therefore, the contract so formed for the past consideration is invalid not allowing the company to make the claim for the price so offered by Devi’s father. (Richards, 2006)
According to the case study it is observed that a couple had visited a restaurant for dinner. The couple were asked to check in the courts at the counter. After checking the same a receipt was handed over to the couple containing the clause that the loss of any nature from the coats would not be the responsibility of the restaurant. After the couple finish their dinner, they realise that the wallet had been left in the coat pocket and that the same is not present at the time of payment. It would be held that the restaurant should have provided the unsigned document before the coats were checked in. The exclusion clauses are only valid if they are timely presented. And if the same is not specified at the time the contract is being formed it won’t be a part of the contract.
As per the provided case it is important that to note that the contract so formed between the parties is that of tenancy. Accordingly, under the tenancy agreements it is an implied term wherein if any amount is spent by the tenant to maintain the premises the same may be repaid to the tenant by the landlord. The facts of the scenario present that a tenant has spent a certain amount to improve the premises for which the landlord promises not to increase the rent for the next five years. The landlord after passing away a year later cannot carry forward the contract. The new landlord increases the rent and the tenant now can claim for the amount spent on the premises in ratio for the next four years. The tenant may refuse to pay the increased rent as the same is a change in contract that has not been present in the prior contract and is not agreed to yet. (Adams, 2008)
As per the facts of the case, the policy for the car had been applied for by a party. The policy holder had been provided with a form stating the information for the car the policy is being taken. The policy questions were regarding the previous claims so made for the car. The questions so asked under the form are not trader’s puff or mere representations. They are directly related to the performance of the contract and the same shall be provided truthfully. The answers if found to be wrong shall be a breach of contract for a breach of condition as the necessary terms have been misrepresented. Thereby, the misrepresentation of such a term would allow the company to void the policy and not pay for the same in investigation.
According to the case scenario provided the policy holder had provided the details of the car under the policy form. It was asked about the previous claims so made for the car for theft and the replaced parts of the car. The policy holder not knowing about the answers provided the wrong answers. It was determined on investigation that the answers to the statements were not right. The same would be misrepresentation and not fraud because the party was unaware of the truthfulness of the statement to begin with and did not intentionally hide it. Thereby, the misrepresentation of the condition under a contract would be said to be the breach of contract for which the company may be able to reject the claim so made. (Andrews, 2011)
There are two types of civil liabilities under the law. The one is contractual and the other is tort. Both liabilities are strict in nature because the breach of the duty so owed directly creates the liability without checking the reason. The liabilities under contracts and tort may however differs on various grounds such as the following:
- Relationship of parties: The parties under contract have already included the duty they owe to each other wherein the parties under tort have no prior relationship of any type.
- Liability: The liability in contract is decision making based on the consideration amount whereas the liability under tort is based on the judgement passed by the court differing from case to case.
- Duty owed: The duty so owed to the party under the contract is discussed between the parties whereas the duty owed under tort are not discussed but assumed between the parties. (Bell, 2013)
- Right affected: The right so affected under the contract is that of right in personam and the right affected under tort is that of right in rem.
- Factors essential: The factors so discussed while determining liability for contract are offer, acceptance, consideration, condition, warranty and such other. The factors considered under tort are that of remoteness of damage, proximity, foreseeability.
- Claim of the breach: The parties to the contract have the right to claim the damages under the contract whereas the parties so affected from the breach can claim the damages for the wrongful act.
- Intent: The intent of breach is not considered under the contract whereas the intent of breach of is considered under the law of tort. (TAN, 2008)
The liability arising under law of tort is for thewrong so committed from the breach of the duty so owed to the neighbour under the society. The citizens owe a general duty of care while carrying out activities towards the neighbour to maintain the safety of the others and cause no harm to maintain a civil order. The tort of negligence is referred to a situation wherein a person breaches the duty of care so owed under the society. Such breaches that when occurred shall be harmful towards another person in a way that the affect is direct and is measured in terms of monetary loss, physical loss or psychological loss. The act of negligence is a punishable offence and arises from the act that is irresponsible, negligent or taken for granted by a person.
Under Donoghue v Stevenson, two friends had gone to a café to have something to eat. One friend ordered and paid for the items. The friend that did not pay for the items consumed beer which had a decomposed snail. The sight of such snail left the woman in shock and infection. He when approached the court to claim damages, the court determined that a duty of care is owed on the part of the manufacturer. This is because, the friend was a standard consumer equally exposed to the consumption of the product as any other person deemed fit for it. The affect so caused was standard and uncalled for. Such defects are manufacturing defects creating the liability on the manufacturer’s part. Similarly, under the case of Caparo, a three-factor test was introduced to determine the extent of liability on the wrong doer’s part. If the wrongful act is remotely connected to the affect of the act, then liability may arise. The wrongful act shall be least connected under the proximity of the act and the breach that the breach is a possibility. The cause and effect of the wrongful act shall be direct to establish the liability.(Cooke, 2007)
The concept of vicarious liability is that liability whereby the party performing the act of wrongful nature is not responsible for the liability. The liability so arising is the responsibility of the person that delegates the party the responsibility to perform the wrongful act. The act may or may not take place per the act so delegated. It may happen that the wrongful act arises from the official delegated duty or not. If the same arises from the personal motivation, then the performing party will be responsible. Such liability generally occurs under the employer-employee relationship. The acts of illegal nature or acts that can only be completed through illegal means would be not covered under the vicarious liability. (Giliker, 2010)
According to the Health and Safety at Work etc. Act, it is if the employer is responsible to maintain the safety of the premise in a way that the employees working on the premise are safeguarded. To do the same the quality of water, food and sanitation shall be of standard quality. The equipment so used on the premise shall be industry approved with necessary precaution taken. Under the Occupier’s Liability Act, it is important that the occupier or the employer has taken necessary steps to maintain the safety of the visitors and non-visitors on the premises. The occupier should ensure that the necessary warning notices are placed in a space equally visible from everywhere to keep the people well informed of the dangers so present at the premises.
Under the present case study, the doctor was working an employee at the hospital. The doctor however, is an employee at the hospital, he is free to practice his work freely as a professional. The duty so owed by him is not only for being part of an institution but also the profession. The patient had approached the hospital for chest pains but the doctor had not attend to him to provide the medicines on check-up. The doctor instructs the nurse to provide certain over the counter medicines to the patient. The next day it is found that the patient dies. It may be stated that the doctor herein is guilty of the professional negligence as for being a doctor he has an obligation to only prescribe medicines after examining the patient. However, the but-for test suggests that the wrongful act shall be directly influential in causing the damage. In the present case, the death is not due to the wrong medicines and therefore, the doctor is only responsible for professional negligence and not the death of the patient. As the hospital is the employer of the doctor the hospitality provision would also be liable for the wrongful medication as the same is part of the duty designated to the doctor for being a part of the hospital. (Vettori, 2007)
The present case facts determine that the driver is an employee of the company that had been asked to pick up the client from the airport. He had reached early and made a personal choice to have drinks. After the client was received the driver drove back the client. On the way,back since the driver was drunk, he was unable to make a better judgement and caused anaccident damaging the car as well as the client. The responsibility of the accident will fall on the company for the negligent act of the driver. This is because the driver is not performing the duty so far away from that was delegated that the company could use it as a defence. As the driver, had caused the accident at the time of the official duty the company would be liable for the damages so caused Rose v Plenty. (TAN, 2008)
According to the facts of the case, the Supermarket had delegated the duty of health and safety to another company. The employee had a duty to de-board the planks during which he slipped and the plank fell over to another employee causing him injuries. The supermarket did not want to pay for the damages stating that the duty of health and safety had been delegated. The Mersey Docks case had laid down that the original employer has a duty towards the employee even if the part of the duty is delegated. Thereby, the supermarket will be liable for the same as the accident had occurred on the premises of the supermarket creating the direct control over the act so performed. (Vettori, 2007)
The assignment so provided above studies the aspects of contract that are involved when two parties come together for a common purpose. The contract may be entered into by one or several parties. The different types of terms involved under a standard contract are provided for a better conception of knowledge. The contract has to be performed in a way that the entire contract is performed by the parties. The breach of contract may lead to creating liability on the part of non-performing party. The liability so arising under tort is related to the non-performance of a social duty. These two types of liabilities are analysed to be different on various grounds. The different liabilities existing within the law of tort are also studied.