Unit 5 Aspects of Contract and Negligence Assignment Merit Copy

Unit 5 Aspects of Contract and Negligence Assignment Merit Copy

Introduction

In this Unit 5 Aspects of Contract and Negligence Assignment, the researcher has described the understanding of the law of contract along with the law of tort. The following report will also provide the various aspects and factors included in the process of the determining the liability are given for collecting a perception of the performances of the law. For analyzing the different nature of contracts, various kinds of contract and terms have been concentrated in this report. The liability which occurs is quite different in two factors of law and that is would be determined specifically. The various kinds of liability given within the law of tort are to be analyzed for collecting a detail and effective understanding of the non- functioning of the responsibility of support and protection.

Task 1

1.1 Explain the essential elements of a contract

Offer- An offer is the initial stage for the formulation of the contract. An offer transfers with the help of promisor which includes the contractual terms which while accepted through the offeree leads to make a contract. An offer supports and guides for the beginning of the contract amongst the parties. It is quite significant for deriving the offer in various form of invitation to offer. An offer is a reflective statement about the terms and condition of the contracts where an invitation for offering is quite an informative statement regarding the probability of formulation of a contract. The offer transfers from the promisor where an invitation for offering can be formed by any individual who would like to be an offeree to the offer formed for the same reason(Cornford, 2008). Within the case of Fisher v Bell, it was analyzed and identified that a knife varieties was showed in the window within the store. So, the on the basis of the law and legislation sale of that kind of knifes is forbidden within the law book. The jury in this case stated that the knife that was displayed in the window shop was for the invitation for offering and not an offer itself. In addition to this, it would also not be identified to be an invitation but rather a piece of decoration to be sold at the option of person possessing it. Thus, it is invalid and the possessor had no intention to sell the same. No laws were violated, thus creating no liability on the part of the person having the knife in the display window. This is identified because for an offer to be specific, it is important to recognize that the party has intention to sale for a certain price to negotiates and form a contract. As the offer for the purchase of knife is invalid and unlawful, no law is said to breach without being accepting a valid offer.  

In the scenario of case Carill v Carbolic Smoke Ball, the company gave advertisement and promotion for the cure of influenza. The company also imposed that if the treatment would not work, customers can make a claim from the bank where their money has been deposited. Mrs. Carill, when used the Carbolic Smoke Balls, was not satisfied with the treatment and went to claim the money. She was notified that she cannot claim as she had not notified of her acceptance. This case falls under the rule of offer to public in which it is specified that the element of the acceptance is waived off(McLean, Mason and McLean, 2004). In addition to this, the advertisement made by the company was clear enough to change the meaning of an offer and the company’s intent to promise the sum of money as published in the advertisement. 

Acceptance: Acceptance comes after an offer is proposed. The acceptance of an offer comes from another party. It is the final step towards the entrance of a contract. Acceptance just like the offer should be clear, lawful and expressive.  The acceptance to a valid offer should be commenced by an accepted mans of communication. Acceptance is a very important element as it helps in creation of the contract. Every valid contract that is created or going to be created must indulge the presence of acceptance done by a second party(Lindemann, Kadue and Lindemann, 2012). The acceptance should be done in such way that it validates the offer and convey the same as the offeror party. Without a valid acceptance, a contract can be formed between the parties. The term acceptance can beautifully summarize in the case of Day Morris Associates v Voyce. In this case, the conduct of the defendant was sufficient to let the offeror to recognize the presence of mental intent to develop the contract.

For a party to get involved into a contract, there are two types of contracts available, namely, unilateral and bilateral. A bilateral contract can also be termed as a simple contract in which two parties involved with a valid offer, acceptance and consideration to create lawful relationship with a specified purpose. On the other hand, a unilateral contract does not contain the element of acceptance(Schmerler, 2008). It is mainly because, in unilateral contract, the offeror makes an offer to whole world. These offers are very clear in their meaning and contain a contingency. It is done to so when an act is performed under the terms of the offer, the party will automatically come into the contract without notifying any acceptance to the offeror. Parties come into the contract as soon as they performed the specified task. Thus, the element of acceptance is not present in the case of unilateral contract.   

Consideration- For the formation of a valid contract, the presence of a valid consideration has an utmost importance. Every contract has the element to be a lawful contract. Consideration is the platform on which the base of the contract is formed. It ensures that each party had derived something from the commencement of the contract. A consideration to be lawful, should be of valid nature, sufficient to both the parties, must not be consideration of the past and should be derived from the specified duty mentioned into the contract. It is an essential element for determining the validity of the contract in terms of its existence(Legislation.gov.uk, 2016). A consideration must be sufficient if not adequate to both the parties. For illustrating the term consideration, the best example would be the case of Chappel v Nestle. In this case, nestle specified that at least three wrappers of the chocolate bar should be sent to claim a record. Chappel who had the copyright of one such record, claimed that the consideration of the contract is not adequate to him and thus forms an invalid and void contract. The final decisions that came from the case stated that the consideration of a contract to be lawful must be sufficient if not adequate. In the case, the wrappers of the chocolate aid towards the sale and thus add value to the chocolate. The wrappers had some value and thus formed the consideration part sufficiently. Thus the contract is formed and said to be valid.

Capacity: Another important element that is required in the formation of a valid contract is the capacity of the parties. The involved parties of a contract should be of legal age and should of sound mind. Both the parties must have a positive financial status in order to make the contract enforceable under the rules and regulations of the law(E-lawresources.co.uk, 2016). The capacity of the parties assists in examining the legality of the contract so that it can be enforceable. If the parties are not from the specified capacity, then the contract formed would be void and will not be enforceable by contract law.

Intent: The intention of partyers to enter into a contract is a very essential element for the formation of the contract. It is because the intent of the party helps in making the contract enforceable by the law. Contracts developed under to commercial nature are assumed to be developed for the legal enforcement(Netk.net.au, 2016). It is important to note that both the parties have mutual understanding to form the contract and none of the party is being forced to be into the contract. Without mutual understanding and acceptance, a valid contract cannot be formed.

For a contract to be enforceable by law, it is important to assure that all the elements of the contract are present at the time of forming the contract. If a single of the element are missing from a contract, then the contract would be termed as invalid and void.

1.2: Is it possible to have a contract without face to face contact?

A contract can be formed without getting indulges in face to face contract. A valid contract can be formed when the parties enter into the contracts through a distance selling contract. Under the distance selling contract, a supplier and a purchased enters into a contract through a written communication. In this form, the intent to create a legal contract is present. The same thing is applicable in distance sales of service regulation schemes(Austen-Baker, 2011). The communication to form the contract is done through a distance. Under distance selling contract, the customer has the right to inspect the goods and services before accepting the same goods and services. But for making a distance selling contract valid, a written document about the acceptance, offer, consideration and other terms should be the part of the contract.

Contract that are developed on online platforms are also considered as distance contracts. This is also considered as distance contracts because sometimes suppliers send sample products in mail first to prepare the contract. If the agents of the parties meet on behalf the real parties, then the contract formed are still a distance selling contract as the main parties are still at distance(Smith, 2011). In distance selling contracts, the most important part is the written document that is presented by both distance parties. The major point of a distance selling contract is that it is not performed in person but is performed from a distant place.         

1.3: Describe the effects of the words in the advertisement.

There is a huge difference between an invitation and an invitation to offer. An advertisement when posted in a newspaper or any mass gathering posters or journals, it is regarded as an invitation to offer. An invitation to offer is the invitation to someone to make an offer. An invitation to offer is when an individual expresses something to another person for inviting him to make an offer. The main motto of invitation to offer is to receive offers from the people and negotiate the terms and conditions on which the contract is to be created(Cooke, 2009).  For an invitation to offer to become an offer, it must be responded by the party to whom it is made. When an individual respond appropriately to an invitation to offer, it becomes an offer from that person. Invitation to offer is generally made for the public with a motto to receive offers from then and then negotiates to develop a lawful contract.

In case of Carlill v Carbolic Smoke Ball Co, the company advertised an offer to the whole people stating that the small ball would cure the influenza disease. And if the smoke balls didn’t cure the disease, the accepting party would be entitled to claim for damages that he or she might have suffered. According to the case, Mrs. Carill, who was one of the users of the smoke balls, didn’t get satisfied with its treatment and claimed for the damages. The company after the claim stated that there was no acceptance received from her, so a valid contract cannot be created. The advertisement is normally considered as an offer to the world. It also determines that if a party wished to act into the offer, he or she will automatically become the party of the contract. The actions performed by the individual will be considered as an acceptance. In Carlill v Carbolic Smoke Ball Company case, the company had directed to use the carbolic smoke balls according to their terms. The actions conveyed by the Mrs. Carlill, is being treated as the acceptance to the offer made by the company.

Carlill v Carbolic Smoke Ball Company case stated that the company had advertised its carbolic smoke balls in a very clear way. The company addressed that individual will get reward of £100, if he or she did not get cured by taking the carbolic smoke balls according to their prescribed way. The company stated that in a very confident and clear way. It is confirmed by the company statement that £1000 has been deposited to Alliance Bank, showing their sincerity. The judgment of the case was done in the favor of Mrs. Carlill. It was stated that the advertisement was done to whole world, but to the segment of people who performs the actions according to the terms of the company. The element of acceptance was also present by the satisfying conditions for using the smoke ball. Another important element for forming a legal contract, consideration was also present which can be stated the purchasing of the carbolic smoke balls. The advertiser had deposited the amount to bank that showed the seriousness of the company to enter into a contract as soon as the accepting party performs the certain specified task.           

Task 2

2.1: Give a clear opinion on whether the essential elements of a contract were present.

From the scenario of the case between David and William, it can be identified that the parties get involved into the contract from the advertisement that was posted by William. The advertisement can be considered as an invitation to offer that was posted by William. David thereafter accepted the invitation to offer and then its gets converted to offer from his side. The consideration price was to be prepared for which David asked for about 10 days to finalize it. After 10 days, David presented an amount of £18000, which was agreed by William. For the commencement of the work, William paid an advance of amount of £100 to David. This advance can be considered as timely consideration. As the quotation amount was agreed by William, both the parties agree to the contracts terms and conditions. The consideration was fixed for an amount of £18000. The mutual commencement to prepare the contract was also available in this case(Casebrief.me, 2016). As all the major elements were present in the case, the contract formed between David and William is fair and valid. Bothe the parties were fairly determined to be involved in the contract for a common purpose. Both the parties have a fair capacity as well.

The advance payment done by William so his seriousness to enter into the contract and it is enough to show parties determination. Both the parties were also in majority of the case with suitable mind and stable financial status. Thus, as all the elements were present here, a valid contract was formed by the David and William on 10th May 2014. 

2.2: Was a contract formed between them?

As the entire major and marketing essentials elements that are required to form a valid contract was present, it can be justified that a valid and law ful contract was formed between David and William on 10th May 2014. After the contract is formed, the work began from 10^th June. After that it was informed by William that the work should be finished by 31^st July as he had to open the gym after few days. David didn’t give any response on that. So, as there was no response from David to the William statement, the amendment or the statement in the contract is considered as rejected. If the term contract is being modified then the same will be performed along with the agreement of the parties to the contract. On the basis of the case of Felthouse v Bindley, an offer is provided the silence of the offeree shall not evaluated for being an acceptance of the contract. The modification is to be enabled through the both sides to involve it in the existing contract. The same modification shall form a portion of the term contract. Silence is not to be supposed as an acceptance. David had not accepted to the same then the contract modification is measured to be not having been created.

2.3 a) Discuss the position of David

The functioning of the contract is directly associated to the functioning of the condition. The injured party has the freedom for terminating the contract. A warranty is termed as the less important portion of the contract which when breached will only termed to compensation of damages and losses or particular functioning. Whereas David had explained regarding the maximum costs to be summarized for meeting the need of the additional expenditures, the same was agreed by William occurs to a new contract amongst the parties. This contract will be distinguish from the initial contract so formulated amongst the parties initially.

The terms and conditions involved within the contract are termed as a combination of various kinds of contract. These contain both implied terms and express terms. Express terms are considered within the contract whereas the implead terms are not considered within the contracts. Express terms can be considered as a warranty or a condition(Burrows, 2011). A condition is considered to be an important nature which are to be function as well as which are directly associated to the contract. A warranty is considered to be a term which smoothens the functioning of the condition.  This is not directly associated to the contract as well as the injured party will not have to null the contract within the condition of breach. It is quite problematic situation of verifying a condition from warranty. When terms conduct various impacts within various situations then it will be considered as an innominate term. Exclusion term is a term which bounds the expansion of liability in the breach of contract. Through incomplete work on a provided time period, David is not in violation of nay term, there is no breached contract as the statement created by William was not a term, it is a request.

b) Explain the situation to David on his claim.

According to the case, it is considered that David within the middle of the functioning of the contract falls short of the work force. It is stated by William before that he needed the tools by 31^st July, David had asked for doing the same if William offered for the additional costs of 2000 Pounds. It is considered before that silence does not to be evaluated to a contract but yet an answer in agreement considered it a portion of the contract. Eventually, there was a positive agreement by William for the same he cannot back out during the time of doing the payments. William had accepted to the same because he did not want to postpone the opening time(Cornford, 2008). So, as the extra costs were accepted by William it will be considered to the contract as well as the same will be compensated by David. William would pay the costs of 2000 Pounds to David for the performance given by him within the contract. The costs of consideration can be modified but still not issued by the parties. William having accepted to the modification will now be limit by it. The aspect of consideration is a condition within any contract. It will be pointed that not paying for the same will be a contract of breach for that David can be able to claim for losses and damages.

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Task 3

3.1 Describe how a liability in tort may arise?

The liability occurring within the law of tort occurs from the civil law and legislation. The liability within arise of tort form the civil breach have within the community. The civil breach is typically associated to the breach of responsibility of protection represents in community to be assumed by all citizens. The damages and losses so caused in this particular amount cannot be settled and evaluated according to the wrong so committed. All these torts are nuisance, negligence and much more of these categorize. The liability so caused within the tort is that for the breach of freedom in rem because it is freedom occurs against the community(Andrews, 2011). The losses and damages for all breaches are varied in the provided condition. The liability for the losses and damage is determined by the courts. The parties associated with wrong have no prior association earlier the wrongful activity. The aspects to be determined when assessing the expansion of damage are that of the remoteness of causation and damage.

The liability within the contract is measured according to the consideration. The contract law and legislation enables the injured party to null the contract and compensate for losses according to the costs of consideration included. The contract should be a legalized contract along with every aspect of the contracts to be enforceable. The contractual association occurs amongst the parties when the losses occur. The losses quite rising are claimed on the basis of the costs of consideration included. The existence of a contractual association is verified when evaluating the losses. The contract time period is verified and identified when determining on the liability by offer and acceptance.

3.2: Describe what have to be proved by the claimant.

In the act of negligence, there are three specific elements that are presentable to be categorised. The law of duty of care should be fulfilled against the party. The neglect of duty of care should result to any form of damage that can be identified inthe terms of monetary funds, physical harms and psychological harms. The tort of negligence extends till the neighbours that may have directly affected by the wrongful act performed by the individual owning the duty of care(Young, 2010). The duty of care is owned by all persons that are reasonably exposed to the actions performed to the actions so undertaken. In the case scenario of Donoghue v Stevenson, it can be identified that the defendant should in violation of care and the same should be related to the harm caused to the plaintiff. If such harm is avoided or neglected by the foreseeable persons, then they owe the negligence of duty of care. When examining the tort of negligence, there are three principles that are mostly considered, namely, damage, causation, and proximity. Here, the damage is implied to the possibility of the wrongful act that causes the damage(The Law Handbook, 2015). The causation here refers to the direct relation between the wrongful act to the damaged happened. Here the proximity means the slightest actual opportunity of the act to cause the impairment.

3.3: Describe the concept of vicarious liability.

According to the rules of vicarious liability, the employer would be held responsible for the breach of duty done by the employees as their actions are controlled by the employers. Any negligence caused by the employees shall fall under the regular course of the business and it should also be ensured that the employer had delegated the duty which is responsible for making the employer to be held responsible for any breach. According to the law, the employer should provide a safe and healthy working environment to the employees so that no accidents can take place. A safe workplace must be providing for the working of the workers. The employers must maintain the first aid kit, and other essential medications(Routledge-Cavendish., 2008). All the equipment’s should be modern for the safety of the workers. The employer is also responsible to keep the visitors and trespassers safe from any harm inside the premises. Thus from the law of vicarious liability, employers are responsible for ensuring the safety of every individual inside the premises.

The act will not come into action if any wrong act is performed by the worker. In the case of Deatons v Flew, it was identified that vicarious liability only comes when the employee is performing the task assigned by the employers. When the act can be identified as personal and not professional, then the liability will also fall to be personal(Jewell, 2002). According to the case of Battistoni v Thomas, if the act committed by the employee is intentional or outside of his assigned duty, the employer would not be held responsible for any harm caused to anyone or anything. The act of any personal motives or any personal intent is not the liability of the employers.

Task 4

4.1: Compare and contrast the verdict in Donoghue v Stevenson with Hill v Chief Constable of West Yorkshire.

In the case of Donoghue v Stevenson, the universal accountability of all the workers towards their products was established. Manufacturers were responsible for the damages caused to the consumers due to the defective products(Extempore.ie, 2016). So according to the case, when Mrs. Stevenson was affected by the damaged product, the manufacturer was justified as the liable person for the negligence of his duty towards the consumers.

In the case of Hill vs. Chief Constable, it was identified that the Police owned no liability towards the victims. The main because behind this was the absence of proximity. Victims were greater in number, and the administrative didn't assign the police force to be responsible for wrong done to the citizens. The police were not liable for the duties of individual victims. The law for duty of care only extends to the neighbors not to the whole society. According to duty of care principles harm so caused to the citizens should be reasonable and foreseeable.

In the case of Donoghue vs. Stevenson, the harm so caused to the citizens didn’t fall under the duty of care. However, it was identified that harm is recognizable and manufacturer owns the liability towards any direct and indirect consumer of the products. In the scenario of Hill vs. Chief, it was identified that police owned the duty of care towards the whole citizens. 

4.2: Discuss his position form the vicarious liability point of view.

After analyzing the given case study, it can be identified that the taxi service would not be liable for any accident is caused by the taxi drivers during their job. Thus, the accident caused while driving would not be the liability of the taxi service. But under the law of vicarious liability, the taxi service would be held responsible for the actions performed by the taxi drivers during their job time. This can be illustrated from the case of Limpus v London General Omnibus Co., where the bus driver was negligently driving during his time of job. The driver committed an act which not falls on the driver personally but falls on the employer(Cartwright, 2007). If any action happens by drivers when they are not in the job, then they can be considered as culprit and the vicarious liability will not come in action.

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Conclusion

The above study has been structured to portray the outline of aspects of contract and negligence of business. The discourse also demonstrates the law of tort along with the concepts of negligence, vicarious liability, and contractual liability. Examples were summarised in the study to present the meaning and effects of the different laws under different situations.  

References

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