Delivery in day(s): 5
A contract is regarded as a relationship between two parties for the purpose so defined under the contract. Such purpose may be of different types giving rise to different types of contracts. The contracts however are standard in formation as each contains similar elements. Unit 5 ACNB Business Contract Assignment discussed relationship between two or more parties for a determined purpose including an exchange of goods or services is known as a contract.The details of the contracts legislation are to be provided under the present assignment. The non-performance is to be studied and contrasted with respect to that of law of tort in order to derive the true nature of the civil liabilities arising from the breach. The tort legislation is also required to be discussed with respect to types of torts present such as tort of negligence and vicarious liability.
Under a contract an offer is regarded as an important element that initiates the contract. An offer shall be precise and contain terms of the contract so offered to the offeree. It should be clear in understanding and determine the explicit nature of the contract. An offer shall be differed from the invitation to offer. It would mean that the invitation to offer is for the purpose of inviting offers from the buyers who interested in making the same. An invitation to offer is merely a statement presenting the availability of the product in the marketing analysis. There are two types of offers that may be made such as the general offer and the special offer. The offer moves from the offeror. When the offeree accepts the terms of the contract then it is regarded as the acceptance of the contract. The acceptance should be clear and express in understanding. It should always move from the offeree. The same shall be presented within a reasonable time. The time so involved is as given under the contract or a suitable time under a contract if not mentioned. It should be made through an acceptable means of communication. If the communication is to be provided through the post then the same shall be done. If the communication is through post then the acceptance is valid as soon as the offeree posts it. (Andrews, 2011)
The contracts are required to include an exchange mechanism of promise in order to restore the balance of give and take. The values so exchanged are called consideration. The consideration may be the promise, profit or such other thing of value. While exchanging the consideration the same should be sufficient, present, not in obligation of contractual or social duty and move from the promise. It helps in deriving the enforceability of the contract. The parties while entering into the contract should ensure that they are qualified enough to enter into the contracts. The parties should be of legal age, sound mind and financial status to enter into a contract. The legal age for the contract is considered to be 18 unless the same is entered into, by a minor, for a necessity wherein such contracts would be valid. The contracts will be only valid if the same are entered into by parties in full awareness. (Adams, 2008). Furthermore, it is important to derive the intent of entering into the contract. Under the law only the contract that are entered into with the intent of enforceability of the law will be so. It is assumed that under a social contract if the enforceability of the law is not included it will not be enforceable under law. Under commercial contract even if no such clause is included it will still be enforceable under the law as the exchange takes place for a certain purpose. (Finch, 2007)
The contracts may be of different types depending on the nature and function of the contract. The manner in which the contract is recorded is also a primary factor in determining the nature of the contract. If the contract is present in the written form then the contract will be considered as a written contract. Such a contract is enforceable under the law for being present in written format to present the actual terms so entered into by the parties while forming the contract. It helps in determining the purpose of the contract and the rights and duties so included under the contract.
If the contracts are not present in the written format but are entered into from a conversation then they are considered as oral contracts. The oral contracts are enforceable under the law only on hearsay bases. Therefore, the establishment of the specific terms and conditions of the contract is a bit difficult. The offer in this case made under a conversation to which the acceptance is made through the same conversation or a subsequent one. The acceptance in oral contracts shall be made within a reasonable time. (Meyer, 2010). For Distance Selling Contracts parties enter into the contracts without being n front of each other. The parties generally enter into such contracts for the transaction to be carried out from a distance. The distance seller at the time of making the sale should ensure that the distance purchaser is provided with all the details of the transaction. The details regarding the product the amount, status of delivery and the tax details shall be notified at the earliest. Such contracts are enforceable under the law for being present in writing at most of the times. If the contracts are breached the remedies for the same are available under the Distance Selling Regulations of 2000 that were revised in 2013.
A condition of the contract is regarded as the most important part of the business environment. These terms derive the direct meaning under the contract therefore are important to be achieved to fulfil the contract. If the affect of the condition is not realised the contract may be voided by the party so damaged under the contract. A condition may be performed at various stages such as before, during or after the contract is achieved.(Andrews, 2011). The warranty is the second important term to the contract as it is indirectly related to the performance of the contract. The effect of the warranty is not for the fulfilment of the contract but only to support the contract. If the warranty is not performed then the contract cannot be voided by the damaged party but only be claimed for damages.
Sometimes terms are not clear in its meaning and effect as they might be important in certain situations and vague in others. Therefore, the contract may be interpreted on the basis of the nature of such conditions. If the breach in a situation amounts to voiding of the contract then it will be regarded as a condition and if the nature of the contract is not affected then it will be regarded as a warranty. Therefore, the innominate terms may be decided based on the affect they cause in a situation of the breach. (Adams, 2008). Clauses that restrict the liability in case of breach are regarded as the exclusion clauses. These clauses are included to define the extent of liability under the situation of breach of the contract. The exclusion clauses are to be included in accordance with the Unfair Contract Terms Act. If the clause includes restriction of liability for the injury or death then the same may be invalid. Such clauses are generally included through the signatures, previous course of dealings or notices.
Case 1: In the given situation it is presented that the seller posted the advertisement for the sale of couch in the newspaper. Such an advertisement is regarded as the invitation to offer wherein the seller posts the advertisement in order to notify the interested parties to make the offers. Carol then made the offer to buy the couch by sending e-mail to the seller. She did not hear back regarding the couch. It would be stated that the contract is not entered into, as the seller did not respond to the e-mail and no acceptance was made with regards to the offer made by Carol. (Collins, 2008)
Case 2 In the present case study it is provided that Devi wanted to join a company dealing in the cyber security expertise. Danny had got a call from the company for an interview. Devi had asked his father to not involve himself with the interview process. Devi had gone for the interview and was subsequently qualified for the position. He was offered the job on 12th April that was then accepted by him. On 13th April, Devi’s father had offered the company a sum of 150,000 Pounds if the company hires his son for the job. The company now wants to enforce the contract. It may be stated that the contract so present is invalid. This is because the sum so offered is for an event that has already taken place therefore consideration of past nature is invalid making the contact unenforceable. (Vettori, 2007)
Case 3: According to the facts of the case, a couple were out for dinner and reached the restaurant. At the entrance they were made to deposit their coats at the desk. The couple were given a slip as a token to claim the coats later. The slip contained a clause stating that the exclusion of liability in case of loss or theft of the coats or the belongings so deposited along with it. The couple after having the dinner realised that the wallet was left in the coat. It was found that the wallet was missing from the coat. The Hilton hotel holds no liability against the said incident. It may be said that the exclusion clause limits the liability for the loss that may occur. The exclusion clause would be valid but not enforceable. This is because the clause contained under the slip is not part of the main contract and was determined after the contract was entered into. Therefore, the restaurant would be liable for the loss of the wallet occurring at the premises. (Andrews, 2011)
Case 4: According to the facts of the case study provided it could be determined that the tenant had invested into the improvements of the property owned by the landlord. To this the land lord had agreed to make the rent permanent for the next five years. It was then realised that the new landlord had increased the price after the death of the landlord a year later. The landlord now refuses to pay for the improvements or reduce the rent amount as promised. It could be determined that under the tenancy agreements it is an implied term and duty of the landlord to pay back for the improvements so made by the tenant. Therefore, the tenant would be entitled to claim for the remaining amount for the four years for which he does not occupy the property. (Meyer, 2010)
Case 5: In the given case study it could be determined that the policyholder wanted to acquire a policy for the car with reference to the theft. The policyholder was asked to fill out the form containing the details of the car and the previous claims. The policyholder under the form denies of the claims so made of similar nature in the past. On theft of the car an investigation was carried out that determined that the claim was in fact made for the same purpose in the previous five years. It may be said that the answers so provided under the policy form was untrue. As the terms of the policy form are directly related to the effect of the contract it may be regarded a condition. The condition is said to have been breached. The policy company may be able to void the contract for the breach of a condition. (Collins, 2008)
Case 6: According to the case provided it may be determined that a policy form was presented to the policyholder in order to provide the information regarding the car. The terms so determined under the form are directly related to the purpose of the policy. The policyholder had denied about the previous claims or the change of parts of the car. The policyholder may be said to have misrepresented the terms despite of knowing the nature and facts. The misrepresentation may be for the condition of the contract and thereby the breach of the same is regarded as the breach of the contract. Therefore, the company may be able to void the contract. (Meyer, 2010)
The liability so arising under the law of contract and law of tort is similar in nature as both are civil liabilities. Such liabilities are strict in nature as the breach so committed is civil in nature the person being affected has to merely establish the breach and not the reason behind it. The breach so occurring is for the existent duty or right for the contractual basis or social basis. The difference so present under two types of liabilities is explained below:
The tort of negligence is regarded wherein the breach of a duty already existing takes place because of the ignorance, carelessness or the forgetfulness. The negligence so arising is for the breach of duty that exists against the society. The duty so existing is for maintaining the care while undertaking actions under the society. The duty should be breached in order for it to be a tort of negligence. The breach so occurring shall lead to damages that are serious and measurable in terms of economic, physical or psychological damage. Such an act of negligence is whereby the car driver is recklessly driving on the road. Under the case of Donoghue v Stevenson the concept of negligence was presented in order to understand the nature of the liability. Herein, Mrs. Stevenson had gone to a café with a friend whereby her friend had bought an ice cream and an ale beer for her. On pouring some of the content of the beer she saw a decomposed snail that led her to mental shock and stomach infection. It was then derived that the manufacturers are responsible for the welfare of the direct as well as the indirect users. This rule is now universally applicable as the scope of use is not limited to the direct users itself. (TAN, 2008)
In the case of Caparo Industries the it was derived that to determine the liability under the tort of negligence three principles should be considered such as the remoteness of damage, causation and proximity. The remoteness of damage determines the possibility of the influence of the act to he relative damage, the causation determines the nature of relationship and the proximity illustrates the extent of affect the wrong might have on the damage. It is to be noted that if the breach so present was foreseeable then the duty of care exists. (Cooke, 2007). The defences so available under tort of negligence are the contributory negligence, volenti non-fit injuria and minor negligence. If a minor commits the negligence it is considered that the same is excusable as the minor is assumed to not have the intelligence to determine the effect of the wrong so committed. If the claimant has participated in the damage from the wrong so committed then he would only be entitled to the extend of involvement of the defendant. If the person were committing negligence on a studied knowledge then no claim would stand against him as the wrongful acts were taken on purpose. The same is excusable under law if it is carried out to keep a more important or moral obligation.
The vicarious liability arises from a duty to be performed by one party fro the benefit for the other party. The benefitting party delegates such a duty. Such liability arises because if the duty is performed correctly the delegating party enjoys the benefits. It is mostly present under the relationship of the employer-employee. Under such a relationship the employee is delegated to perform a certain work for which he is hired. Therefore, the liability so arising from the breach of such duties would be the liability of the employer. Unless the duty is illegal or the means of fulfilling the duty is illegal it would be the liability of the employer. The employer is only liable for the non-performance of the official duties and not for the personal actions. (Morgan, 2011)
The employer is expected to maintain the premises according to the Health and Safety at Work Act, 1974. The measures so required to be taken are for the provision of the clean water, certified equipment, and such other safety measures. The health and safety of the employees at the premises is the priority of the employer. According to the Occupier’s Liability Act, 1984 it may be determined that the employer is expected to maintain the premises for the visitors as well as the non-visitors of both permanent and temporary nature. Such other relationship wherein the vicarious liability may be applied is that of agency, partnership and master-servant. The liability is present under agency because the principal and agent are related for the performance of the specific duties. Such duties are performed by the agent for the benefit of the principal making the principal liable for the wrongful acts so committed under the agency. It is assumed that a servant performs the acts for the master for most part of the day. This would mean that the master would be liable towards the actions so performed by the servant during the course of employment. Also the partners tend to take decisions based on behalf of each other for a common benefit. Therefore the consequences of such decisions is the responsibility of the other partners. (Bell, 2013)
Case 7: Under the present case the liability of the doctor and the hospital is to be determined. The patient had approached the hospital to get treated for breathing problems and chest pains. The doctor was busy when the nurse called and he asked the nurse to give him over the counter medicine. The patient left the hospital on receiving the medicines. He was found dead at his home the very next day. It was discovered on investigation that the cause of death was the pneumonia caused from the toxic mould present in his house. (Giliker, 2010)
It may be said that the doctor for being an expert of medicine should only prescribe medicines on knowing the symptoms after performing the check up. The doctor did not perform a check up and prescribed the medicines without actually knowing the symptoms. The doctor will be said to have committed a professional negligence as the same has taken pace while performance of the official duties. The hospital will be liable for the same as the doctor is the employee of the hospital thereby giving rise to the vicarious liability. However, the but-for test may be applied under the present situation. The but-for test applies the relationship between the wrong so committed and the damages so occurring. The patient had died of the toxic mould and not the medicines however the same prescription could have been wrong it did not cause the said damage. Therefore, neither the doctor nor the hospital will be liable for the damages so arising. (Cooke, 2007)
Case 8: In the present situation the driver is regarded as the employee of the company. He was asked to make a pick up from the airport to receive the client. The flight had not arrived and thereby, he decided to drink a few glasses. On receiving the client the river drove back towards the hotel. On his way back for still being drunk he caused an accident causing damages and injuries to the client as well as the car. It may be derived that the employer-employee relationship did exist under the given situation. The driver had committed the accident while performing the official duties so delegated. The act of drinking in the personal capacity but the task of driving was within official capacity. As the wrong so committed is not far from the scope of the employment the company would be liable for the actions of the driver causing the accident. (Morgan, 2011)
Case 9: In the present case it is determined that the responsibility of the health and safety was delegated to another company. The employee while performing the official duties tripped and injured another employee at the premises of the supermarket. The supermarket beings no claim in the given situation as the heath and safety duties was delegated to another company. According to the case of Ready Mix Concrete, it was discussed that the primary employer would have the liability over the actions of the employee even if the same does not occur under its influence. However, whereby, more than one employer are there for a given employee the employer having the direct control over the situation at the time of damage so occurring would be liable for the employee. As the damages occurred while performing the official duties at the premise of the Supermarket, it would be held responsible for the liability. (Bell, 2013)
The present assignment studies the distinguished nature of variety of contracts according to its meaning and effect. The contracts are standard according to the elements of the contract as provided. The discussion related to the case studies was carried out in order to reach a solution. The effect of breach of the contract is compared against the breach of duty under the tort as both are civil liabilities in nature. The meaning and elements of the type of tort such as negligence and vicarious liability was further determined in order to solve the business case scenarios as 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
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