Delivery in day(s): 5
The present ACNB Assignment is an attempt to provide a better understanding of the various factors that lead to breach under civil law. The two major areas of civil liability are contract and tort. The elements of breach under contract and negligence and tort are to be studied simultaneously to identify the associated factors of breach. The two types of liabilities are also to be distinguished so as to understand the similarity and differences between the two. The knowledge so gained is to be used to solve the case studies.
Introduction: This task requires to identify the different terms involved while forming a contract. It would also be necessary to ensure that the different types of contract are studied while determining the nature of a contract. The effect of the terms n relation with the performance of the contract is to be studied and the elements forming a contract are required to be analysed as well.
Peter Abraham while working as an independent contractor needs to know that the contract so created between the parties is formed from the presence of various elements that form a standard contract. These elements are namely as follows:
Offer: The offer is referred to a statement that allows the party to present the terms of the contract. The offer is to be made by the interested party known as the offeror. The offer so made by the offeror shall be clear to understand and appropriate in the meaning. Offeror should ensure that the offer is made using simple language in order to ensure no confusion. It should be noticed that the offer is different from an invitation to offer. An offer is clear in its intent to create a contract including the terms so presented in the offer. An invitation to offer ensures that the invitation is made to anyone that may see and interpret the meaning. Its purpose is to create awareness of the possibility to generate a contract for the said purpose of the interested party make an appropriate offer. The invitation to offer does not intent to create a contract but the mere possibility to create one. An advertisement in the newspaper or a display in the shop window is considered to be an invitation to offer Carlil v Carbolic Smoke Ball. (Collins, 2008)
Acceptance: A contract may only be formed if the party so presented with an offer, presents the acceptance. The acceptance is made as an agreement to create a contract with the party offering the contract. It should be clear in intent and meaning and shall be used with a simple language. The acceptance is as essential element to the contract as it ensures the creation of the contract. It should be made by the offeree. (Collins, 2008)
When the acceptance is being communicated, it should be ensured that it is done so through the discussed means of communication. This would allow the parties to be certain of creation of the contract. The same may be communicated through mail, telephone, post or such other means. When the acceptance is made through the post, it shall be considered valid when the offeree posts the letter Accordingly, it is not necessary that all the contracts require to be notified with acceptance. Whereby the acceptance is made only for a selected set of terms the contract is not accepted entirely. It would mean that the offeree makes the counter offer to the original offeror whereby not the offeree becomes the offeror. The counter offer would continue to be so unless the final offer is accepted or rejected by the party. This would mean that the contract is to be created through the complete acceptance of the offer.
Consideration: The amount that has some value attached to it is referred as the consideration. This amount requires to be sufficient, present and not part of any other duty. A consideration is said to be an exchange between the parties to ensure that the risk so undertaken is compensated by the parties under the same arrangement. It may either be a profit or interest. The consideration should ensure that it creates a relationship to restore the values so lost from the same arrangement. The consideration ensures that the contract so created is valid under the law and helps to be recognised as one.
Intent:The intent to create a contract enables the parties to ensure the enforceability of the contract under the law. Two types of contracts are identified under the law such as the commercial contracts or social contracts. The commercial contracts are assumed to be intended to create a legal enforceability as the parties come together only for a specific purpose and do not trust the other. The social contracts are created between friends or family and are assumed to be not enforceable under the law if it is not mentioned because the parties already know each other and have trust and faith as the basis of enforceability. (Giliker, 2010)
Capacity: Whereby the parties are creating a contract it should be ensured that they are of capacity at the time of the formation of the contract. The capacity ensures that the contract so created is valid and enforceable as the parties not of capacity are not able to interpret the meaning of the contract. The capacity of the party may be determined to be the age, soundness of mind and financial status to create the functionality of the contract. The contract created between parties that are incapacitate are namely void.
Privity: The contract may not always be fulfilled as agreed between the parties under the contract. Sometimes when the parties are not able to fulfil the contract it may lead to a breach. This would allow the parties to file for a breach of contract to void the same or recover the damages. When the breach is sorted only the affected parties under the contract would be able to claim for the breach and not a third party. The privity of contract provides that the parties to the contract owe each other for non-performance and no outsider can make a claim for such breach (Meyer, 2010)
Peter Abraham while forming contracts may come across different parties with different expectations and arrangements. The different types of arrangements may be made through the following types of contract:
Face to face
Contracts that are created between the parties in the presence of each other. Whereby the parties to the contract discuss the contract terms through a conversation, it is said to be a face to face contract. These contracts are to be presented through an offer and the acceptance may be made at the same time or different depending on the terms discussed between the parties.
The advantage of the contract is that it saves time for creation of the contract as the process is instant and no paperwork s involved.
The disadvantage of these contracts is that the creation is oral and does not involve a written document stating the terms to make it concrete. Therefore, the implication is the enactment of the contract under the law. (Pratt, 2000)
Contracts that are created through written terms are known to be written contracts. This allows the parties to sign the written document to provide the parties with the signatures to imply the validity and existence of the contract.
The advantage of such contracts is that these are easier to be enforce for the presence of the written document stating the terms so agreed to between the parties.
The disadvantage of these terms is that the enforceability of the same may take time for the detailed terms of the contract so present in order to be fully assured of the creation of the contract. (Giliker, 2010)
Distance selling contracts
Whereby the parties to the contract are not in the same place or time for the creation of the contract such contracts are known as the distance selling contracts. These contracts are to be created through online, mail order, telephone, letters or such other means of communication. The seller implications are that the product details, payment methods and delivery arrangements are to be determined at the time of the creation of the contract.
The advantage of these contracts is that it might allow the parties from different parts of the world to enter a contract without being personally present.
The creation of the contract may take time depending on the uncertainty of the means of communication for such contracts.
Peter Abraham shall ensure that when a contract is being created the term and its importance to the contract is derived to determine the remedy at the time of the breach. The following table will allow him to gain a better understanding of the same:
The terms under a contract that are primary to its performance are considered to be condition of contracts. These terms are to be performed as they are directly linked to the contracts purpose.
The non-performance of the condition may allow the parties to void the contract and claim for the damages. This is because the breach of condition is a breach of contract as it defies the purpose of the contract.
The terms part of the contract in order to facilitate the performance of the condition is considered as the warranty. Such terms are required to be performed in order to fulfil the condition. (Richards, 2006)
The warranty when not performed is considered to be a breach of warranty only and not the entire contract. It allows the damaged party to claim for the damages but not void the contract entirely.
The terms that are not clear in its meaning for a contract is said to be the innominate terms. Such terms differ in meaning under different situations. (Collins, 2008)
The effect of these terms is only certain once a wrong is committed.the importance of the term is studied in relation to the breach. Therefore, if the importance is of condition then the contract may be voided and if it is a warranty then the damages may be claimed.
The terms that are included in the contract in order to limit the liability of the contract for non-performance is said to be exclusion clauses. These terms should be included through signatures, previous course of dealings or notices. The person including the exclusion clause would be responsible to notify to the contracting party regarding it. (Cooke, 2007)
According to the UCTA, the contracts should only have exclusion clause with respect to the performance of the contract. The same shall not be for the injuries or death so caused under the contract.
The terms that are not determined under the contract but still are applied in the contracts are said to be the implied terms. These terms may be implied under the custom or law or previous dealings.
The implied term may either be a condition or a warranty. Such terms may have their respective effects according to the breach of the term.
It is determined that under the given case the seller had advertised for a couch wherein the details of the same were provided. The said advertisement is recognised as an invitation to offer. Further, Carol had sent a mail to the seller stating her intent to create a contract for the purchase of the offer. The same would be recognised as an offer being made by Carol. The details of the acceptance of the contract are not determined. Therefore, if the same is accepted the contract would formed or otherwise it would not be a contract as only the offer had been made and not the acceptance Partridge v Crittenden.
It is observed that Devi had been called for an interview at a firm and had asked of his father not to involve himself with the same. Devi had interviewed and gotten selected for the same on 12th April. On 13th April, the father made an offer to the company stating his intent to pay a certain sum in return of hiring his son as an employee for the positon Re McArdle. The offer so made was for an event that had already taken place and the consideration is past in nature. Therefore, the contract so formed is invalid and cannot be enforced by the company Lampleigh v Braithwait. (Collins, 2008)
The couple were made to keep their coats at the reception as soon as they entered. After doing so they were allotted a ticket stating that the restaurant takes no responsibility of the items in the coat so kept at the receptionChapelton v Barry Udc. The couple realise the wallet was kept in the coat at the time of paying for the meal. They come to know that it is missing from the coat and the restaurant take no responsibility of it. The term in question is regarded as the exclusion clause. The same shall be valid only it is included at the time of creating the contract. As it was provided after the contract was already created it would not be valid under the present circumstancesOlley v Marlborough Court.
The tenancy contracts imply the term wherein the expenses are undertaken by the tenant the landlord is obligated to provide for the same in return Currie v Misa. The contract so created in the present case is for the tenancy whereby the tenant had spent the amount on the maintenance of the place and the landlord agrees to keep the rent as it is for five years. A year later, after his death the new landlord hikes the rent. The tenant in these situations would have the right to claim for the amount spent on improvements and discontinue the contract for the rejection of new terms Dunlop v Selfridge.
The policy terms so provided by the company would be said to be an invitation to offer. The filling out of form would be considered as the offer that when agreed to by the company would be termed as a contract. The policy terms are therefore considered to be contract terms. One such term was regarding the previous claim so made by the party for the theft in the last five years that wasn’t rightly provided. The details being misrepresented is considered to be a breach of the contract as the term is a condition to the contract. Therefore, the company would be able to void the contract and not provide the said compensation.(Cooke, 2007)
The policy terms in the present case contained regarding the previous claims so made for the car theft and the condition of the car parts with respect to originality. The two terms were not provided accurately. The terms so breached were conditions and warranties and misrepresented by the policy holder as was found on investigation. The mis representation for the previous claim is a breach of condition and the originality of the parts is a warranty as the same was not primarily related to the purpose of the contract. Therefore, the company would be able to void the contract and discontinue the same for providing misrepresented information while creating the contract.
Under the civil law, two types of liabilities can be raised. One of the liabilities is termed as contractual liability and another one can be termed as tortuous liability. Contractual liability is the result of breaching of contract while committing a tort results in torturous liability. Both the liabilities described above are different in nature but the performance of the liabilities is similar. The first similarity in both the liabilities is that they both are under civil law and the other similarity is about the strict performance of both the liabilities. These liabilities need to be strictly followed because the party that is creating the breach has to pay for the damages that occur. The party that is creating the breach cannot make any defensive action to escape from hid duty. (Richards, 2006)
As similarities between the liabilities have been discussed, below are some of the differences in the liabilities:
The liability so raised under tort of negligence is the result of the breach of duty of care that exists in the society. The duty of care includes the actions that reduce the harm to the society in terms of safety of the people and the actions that does not cause any harm to the surroundings. When any of the individual breaches the duty of care, it falls under law of tort and is considered as the civil wrong. Breaching of duty of care may be because of the neglecting nature of the party or due to forgetfulness. The duty can be considered to be breached if the action so performed results in serious harm to the society in terms of monetary, physical and psychological loss. There should be no involvement of any other causes in the damage so occurred.
As far as the case is considered, it has been identified that for a market a manufaturer is responsible for the duty of care and this is not limited to the customers who is buying the product. This suggests that all the individuals who are capable of buying the product are to be considered while providing a product. Therefore, the manufacturer is also responsible in creating the liability as he breached the duty of care by manufacturing defective products. (Giliker, 2010)
The case of Caparo Industries also acts as the landmark for tort of negligence. The elements that were enquired in the case were remoteness of damage, causation and proximity. In case of duty of care, the duty so breached should be direct in nature. This means that the action that caused the breach should be the only reason for the damage so occurred. (Nel, 2004)
When the party that is committing, the wrong action is not liable for the action so performed then the tort is considered as vicarious liability. In this case, the wrong action that has been performed by the party is influenced by the instructions from another party. Therefore, the party who is instructing another party bears the liability as well as the benefits of the action so performed by its instructions. This type of vicarious liability occurrs when parties are involved with each other with business motives rather than personal.
UK legislations also consider the vicarious liability. The Acts like Health and Safety at Work etc Act,, suggests that the employer is responsible for the provision of safe working environment to the employees at the work place. Employer should ensure that all the health standards need to be maintained at the workplace and the equipment used by the employees should be checked in equal interval of time. Similarly, the occupier is responsible for provision of safe premises to the visitors as well as the trespassers. He should ensure that all the warning boards are properly placed to let the people know about any hazards or unsafe conditions.
The study of the case identifies that when an individual with the specialized information and knowledge of any professional study commits a wrong action while professional performance than it is said to be the act of professional negligence. If the medical profession has been considered, the doctor can be called as the doctor when he has the associated degree. This degree provides him some of the responsibility and binds him to act accordingly during his professional performance. The basic duty of the doctor is to check the symptoms of the disease before prescribing any medicine to the patients. As far as the case is considered, a patient with chest pain went to the hospital and was proposed to approach the doctor employed by the hospital. The doctor prescribed over the counter medicines of chest pain to the patient without performing any prior check-up. The patient died the next day. The reason of the patient’s death was found to be pneumonia. In this case, the act of doctor was considered as the act of professional negligence but the doctor is not liable for the death of the patient as another reason is associated with the patient’s death. Also, the doctor was the employee of the hospital so it develops the condition of vicarious liability to the hospital as well. (Nel, 2004)
According to the case, the company hires the driver to perform the task according to their instructions. The next day, driver was asked to pick a client from the airport. As the driver reached early to the airport, he consumed few drinks. After drinking, he received the client and driving back. During the drive, the car met with an accident and it results in harm to the client as well as to the other cars. This develops a condition of professional negligence by the driver. However, the driver was employed by the company so in this case, the company is liable for the losses and the damage so occurred according to the rules of vicarious liability.
The case study suggests that there is more than one employer for the employee committed the mistake. The case of Mersey Docks discusses about the fact that the direct employer of the employee is considered as the liable party in case of any wrongful act done by the employee. This is the case of vicarious liability and the liability exists even if the wrong act was committed outside the premises. As far as the case is considered, the wrongful action so committed by the employee during the practice of unloading pallets was directly controlled by the original employer at the premises. Therefore, the original employer was found to be liable for the act so performed by the employee. The company that has the duty to maintain the health and safety regulations was not found guilty or liable for the wrong act. (Richards, 2006)
For a contract to be valid it is important to have all the elements of a contract. Every contract must be standard in nature for its enforceability. The effect of the breach of contract is studied while defining the effect of different types of terms present under contract. The rules of breach are same under any type of contract. The breach so committed under the contract and tort have been provided in differentiation. The different types of liabilities have also been provided to study the effect of breach under law of tort.