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Unit 5 Aspects Contract Law Negligence in Business Assignment Sample
This report has presented the understanding of the contract law and also the law of tort. In this report, the different aspects, as well as elements of laws, are discussed for the process of determining the liability that is provided in order to collect an idea of the functioning of the law. In order to analyze the various aspect of the contract, different types of terms and conditions have been elaborately described in this report. The liability that takes place is different in mostly two factors of law, even that it would be considered particularly. The different types of liability provided in the law of tort are to be study and identified in order to collect the information as well as an appropriate understanding of the non-performance od the duty of help and safety.
1.1 Explain the essential elements of a contract
Offer- An offer is the first most steps for the creation of the contract. An offer moves along with the support of promisor that contains the contractual conditions that when accepted with the help of the offeree leads for making a contract. An offer helps and supports for starting the contract between the parties(Cooke, 2009). It is very important in order to derive the offer in the different form of an invitation for an offering. An offer is a reflective statement regarding the conditions and terms of the contracts where an invitation to offer is very informative statement about the possibility of the creation of a contract. The offer moves through the promisor where an invitation to offer can be created through any person which would like to be a promisor to the offer created for the same cause. In the case of Fisher v Bell, it was analyzed that the varieties of knifes were presented in the window in the store. Therefore, according to the law and rules sale of that type of knifes is not allowed and not permissible in the book of law. The judge, in this case, portrayed that the knife which was showed in the window store was for the invitation to offer and it is not an offer itself. Moreover, it would also not be analyzed to be an invitation instead of a portion of decoration to be sold at the choice of individual owning it. So, it is unacceptable as well as the owner has no purpose for selling the same. No business laws were dishonored, so formulating no liability on the portion of the individual having the knife in the display window. This is analyzed for the purpose for an offer to be particular; it is significant for recognizing that the party has purpose of selling for a particular amount of negotiating as well as create a contract. As the offer for buying the knife is unacceptable and illegal, so no law is stated to breach without being receiving a lawful offer.
Under the case of Carlill v Carbolic Smoke Ball, the firm provided advertisement for the precaution of influenza. The firm also levied that if the treatment would not operate, customers can demand to the bank where their amount has been placed. Mrs. Carlill, while utilized the Carbolic Smoke Balls, were not comfort with the treatment and went to demand the money. She was informed that she can’t be able to demand because she had not informed of her acceptance. This case comes within the regulation of offer to public in that it is signified that the aspect of the acceptance is abandoned. Moreover, the advertisement created through the firm was quietly clear for changing the meaning of an offer as well as the firm’s purpose of promising the amount of money as published in the advertisement.
Acceptance- Acceptance originates after an offer is planned. The acceptance of an offer originates forms the other party. This is the final stage towards the formation of a contract. Acceptance is basically like an offer that should be clear, expressive as well as legal. The acceptance of a lawful offer must be started by an accepted means of conversation. Acceptance is quite an essential element because it suggests in the formation of the contract(Cooke, 2009). All lawful contracts which are formulated and planned to be formulated should engage the existence of acceptance performed by a second party. The acceptance must be performed in the way which it legalizes the offer as well as portray the common like the offeror party. Without a valid acceptance, a contract can be formulated amongst the parties. The term acceptance cans wonderfully précis for the case of Day Morris Associates v Voyce. Under this case, the lead of the opposition party was enough for letting the offeror for recognizing the existence of mental purpose for developing the contract.
For the parties for getting included within a contract, there are mainly two kinds of contracts available, that bilateral and unilateral. A bilateral contract can be referred as simple contract under which two individuals along with a lawful acceptance, consideration, and offer for formulating legal relationship through a particular intention. And the unilateral contract does not contain the element of acceptance. It is for the reason because the offeror creates an offer to the entire world. This offer is quite clear in their sense as well as includes a contingency. This is performing to do so while a role is performed within the terms of the offer, the party will actually come within the contract without signifying any acceptance to the offeror. Parties enter into the contract as rapidly performed the particular work. So, the element of acceptance does not exist within the case of unilateral contract.
Consideration- For the creation of lawful contract, the existence of a lawful consideration has the greatest significance. All contracts have the element to be a legal contract. Consideration is the stage under which the basis of the contract is created. A consideration to be legal must be of lawful nature; enough to the both parties should not be consideration of the previous as well as must derive from the certain responsibility presented within the contract. This is an important element in order to determine the validity of the contract in terms of its presence. A consideration should be enough if not passable to the both parties(Cooke, 2009). As per the example, the case of Chappel v Nestle would be the perfect example for the term consideration. Under this case, Nestle signified that at least three wrappers of the chocolate bar must be delivered for claiming a record. Chappel had the copyright of one of the record, demand that the consideration of the contract is not passable to him and so create an unlawful and null contract. The last decisions that emerge from the case portrayed that the consideration of a contract to be legal should be enough if not passable. Under the case, the wrappers of the chocolate help to the sale as well as add value to the chocolate. The wrappers have little value and so created the consideration portion enough. So, the contract is created and stated to be lawful.
Capacity- Another essential element is needed in the creation of a lawful contract is the ability of the parties. The indulged parties of a contract must be of lawful age and at the same time must be sound minded. Both the individuals should have a financial status in the society for creating the contract enforceable within the laws and rules of the contract law(Cooke, 2009). The capacity of the parties suggests in analyzing the validity of the contract thus that it can be enforceable. If the parties are not through the particular capacity, then the contract created would be null as well as will not be enforceable through the law of contract.
Intent- The purpose or intention of the parties for entering in a contract is quite an important element for the creation of the contract. It is for the matter as the main purpose of the party is to support in creating the contract enforceable through laws and rules. Contracts established within to commercial behavior are supposed to be established for the lawful enforcement. It is essential for noting that the both parties have united understanding for creating the contract as well as no party is being compulsory to be within the contract(Smith, 2011). Without united understanding and also united acceptance a lawful contract cannot be formulated. For any contract to be enforceable through the law, it is essential to ensure that the every element of the contract is existed at the time of creating the contract. If any of the single elements is missing from a contract, then that contract undoubtedly termed as unlawful and null.
1.2 Is it possible to have a contract without face to face contact?
A contract can be created without involved under face to face contract. A lawful contract can be created while the individuals enter into the contract with the help of distance selling contract. In the distance selling contract, a supplier, as well as a buyer, enters into a contract with the help of written communication(Austen-Baker, 2011). Under this form, the purpose of formulating a lawful contract is present. The same thing is valid in distance sales of service control schemes. The interaction for creating the contract is performed with a distance. In the distance selling contract, the customer has the freedom for inspecting the services and commodities before accepting the similar services and goods. For making a distance selling contract lawful, a written rudiment regarding the acceptance, consideration, offer and various terms must be the portion of the contract. Contracts which are established on online stages are also determined as distance contracts. This is also determined by distance contracts as in some circumstances manufacturers send sample commodities in mail for making the contract. If the agents of the parties come across on behalf of the original parties, then the contract created is still a distance selling contract because the original parties are at distance(Netk.net.au, 2016). Under distance selling contracts, the quite essential portion is the written rudiment which is existed through the both distance parties. The largest point of distance selling contract is that it is not done in person but still is done from a distant location.
1.3 Describe the effects of the words in the advertisement.
There is a quite a bit variation amongst an invitation as well as an invitation to offer. An advertisement while posted in a newspaper and in any mass meeting posters, it is considered as an invitation to offer. An invitation to offer is the invitation to someone for creating an offer(E-lawresources.co.uk, 2016). An invitation to offer is when a person expresses anything to the other individual in order to invite him to create an offer. The most important objective of invitation to offer is for receiving offers from the individual as well as converts the conditions and terms under which the contract is to be formed. For an invitation to offer for becoming an offer, it should be responded by the person to whom it is created. When a person response properly to an invitation to offer, it becomes an offer through that individual(Legislation.gov.uk, 2016). Invitation to offer is basically created for the public along with the objective for receiving offers through then and then converts for developing a legal contract.
According to the case of Carlill v Carbolic Smoke Ball Co, the firm advertised an offer to the entire individual conveying that the small ball would protect the influenza disease. If the smoke balls didn’t protect the disease, the accepting party would be permitted for claiming for damages that he or she may have survived. In the case, Mrs. Carill who was the utilizer of the smoke balls didn’t get satisfied along with its treatment as well as demanded the damages(Schmerler, 2008). The firm after the demand conveyed that there was no acceptance obtained from her, thus a lawful contract cannot be formed. The advertisement is basically determined as an offer to the entire globe. It also considers that if a party desired to play a role into an offer, then the individual will eventually become the party of the contract. The actions played though the individual will be determined as an acceptance(Lindemann, Kadue and Lindemann, 2012). Under Carlill v Carbolic Smoke Ball Company case, the firm had suggested utilizing the carbolic smoke balls on the basis of their terms and conditions. The performance stated by Mrs. Catlill is being preserved as the acceptance of the offer created by the firm.
Carlill v Carbolic Smoke Ball Company case conveyed that the firm has advertised it carbolic smoke balls in a quite clear way. The firm addressed that person will get price of £100 if the person did not get protect and treatment by using the smoke balls on the basis of the suggested way. The firm conveyed that in a quite confident and clarified way. It is assured though the firm illustration that £1000 has been submitted to Alliance Bank, viewing their honesty(McLean, Mason and McLean, 2004). The judgment of the case was played in the favor of Mrs. Carlill as it was conveyed that the advertisement and promotion was played to the entire globe, but still to the section of individuals who plays the actions on the basis of the conditions and terms of the firm. The element of acceptance was also showed through satisfying the terms and condition for utilizing the smoke ball. The other essential element for creating a lawful contract, consideration was even showed that can be conveyed the buying of the carbolic smoke balls(Cornford, 2008). The advertiser has submitted the price to bank that viewed the honesty of the firm for entering into a contract soon the accepting party plays the particular signified work.
2.1: Give a clear opinion on whether the essential elements of a contract were present.
After analyzing the situation provided in the given case scenario, it can be identified that both David and William entered into the contract with their mutual consent and a valid consideration. Parties get involved into the contract after an advertisement was posted by William. This advertisement was an invitation to offer that was posted by William. David, from his side, accepted the invitation to offer and proposed an offer to the William. For a valid contract, a lawful consideration is essential, so David asked for about ten days to prepare the quotation of the contract. After its completion, David proposed a quotation of amount £18000, which was accepted by William. As the acceptance has been made, there was a formation of a valid consideration(Cartwright, 2007). For starting the work, William paid an advance payment of £1000 to David. This advance can be taken up as a timely consideration. As the consideration was accepted by William, and the contract was formed with the mutual consent of parties, all the terms and conditions formed in the contract was also accepted by both parties.
As all the major elements, namely, offer and acceptance, a valid consideration, capability of the parties, and mutual intent was present in the given case, the contract formed between the David and William was valid and lawful in nature. And the contract was formed on 10th May 2014.
2.2: Was a contract formed between them?
As all the major elements were present in the case of David and William, there was a formation of the contract between the two. There was a formation of a legal and valid contract between David and William on 10th May 2014. After the formation of the contract, the work initiated from the 10th June. During the work, it was informed by William that the work should be completed before 31st of July as he had ordered all the materials for the gym and he has to open the gym after the described date. William also informed David, as he has an inauguration party for the opening of the gym, the work needs to be finished before 31st July. On the other hand, David didn’t give any response to the William statement. So, as there was no response given by David to William’s word, the amendment or the changes described by William will be terminated(Cartwright, 2007). If any changes have to be made in a contract, it should be done with the mutual intent of the parties, and if any party doesn’t give any response to the changes mentioned, it would be terminated. From the case of Felthouse v Bindley, it can be identified that a silence cannot be termed or defined as an acceptance. The silence of the party to any amendment stated by another party should not be evaluated as an acceptance of the contract. The modifications should be done and enabled from both the parties in the existing contract. Silence will never be supposed to an acceptance of a contract. As David had not accepted the modification mentioned by William into the existing contract, the modifications will not be created.
2.3 a) Discuss the position of David
The commencement of a contract is directly associated and linked with the commencement of the condition. The injured party of a contract has the legal right to terminate the contract. A warranty in a contract is considered as a less important portion of the contract and when it is breached, it will only be termed to compensation for damages and loss of the particular thing. When David had explained the situation regarding the cost that needs to be summarized for meeting the additional requirements and for completing the work before 31st July, the same was accepted by William and thus a new contract was formed amongst the parties. This contract will be different from the contract that was initially formed.
The terms and conditions involved within the contract are termed as the guidelines of the contract. Any breach of terms and conditions of the contract will be termed as the breach of the contract(Cartwright, 2007). There are namely two terms in the contract, namely, implied terms and express terms. In contract law, express terms are considered as the terms initiated within the contract, whereas, express terms are considered to be the terms outside the contract. Express terms of the contract are termed as the warranty or conditions of the contract, which when breached will be liable for a sum of compensation. A warranty in a contract smooth’s the functionality of the contract. It is not directly associated withthe contract and is an additional part to it. When the terms of the contract conduct different impacts within the different situations, then the terms are considered as innominate terms. Exclusion term is the term that bounds the enhancement of the liability for the breach of the contract(Extempore.ie, 2016). Through the incomplete work on the given period of time, David has not violated any term of term mentioned in the contract. There is no violation of any term of the contract, as the statement mentioned by William for a change in the contract is a request and cannot be termed as term or condition.
b) Explain the situation to David on his claim.
From the scenario of the case, it can be considered that David, in the middle of the functionality of the contract falls short for the labor force. It was mentioned by William that he need the work to be finished within 31st July; on which David stated that he cannot complete the work on the specified time and if he wants the work to be completed on time, he needs to pay an additional cost of £2000. It is considered that the silence doesn’t to be evaluated in a contract but yet an answer in the agreement should be considered as the portion of the contract(Jewell, 2002). At the same, there was a positive agreement made by William and he cannot back step during the time of doing the payments. William had accepted the statement declared by David because; he does not want the commencement of the work to be extended anymore and alsodoesn’t want to postpone the inauguration of the gym. So the additional cost mentioned by David was accepted by William and pay him the amount of £2000 for completing the work on time. William having the acceptance of the modification will now be limit by it. Another point to mention here is that David can claim for the losses and damages if William disagrees to pay the rest of the amount.
3.1 Describe how a liability in tort may arise?
The accountability of the law of tort occurs from the civil law and legislation. The obligation within arises of tort forms the public breach have within the municipal. The civil breach is typically associated to the fissure of accountability of protection represents in public 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. 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 of the parties of in a contract is measured by the means of consideration. The contract law and the legislation party enable the injured party to dissolve the contract and also to compensate for the losses. This is also measured by the costs of the considerations included. Every contract which is to be formed should be a legalized with all aspects that need to be enforced for the formation of a valid contract. The liability of the damages is decided by the courts. The elements that need to be considered while analyzing the depth of the damages are causation and foreseeability. The presence of the contractual relationship among the parties is checked by calculating the damages happened to the innocent party(Routledge-Cavendish., 2008). The contract rationality is verified while determining on the accountability through the offer, acceptance, and intent.
3.2: Describe what have to be proved by the claimant.
Under the law of tort, an act of negligence contains three specific elements that need to be categorized. A duty of care needs to be present to fulfill the requirements of the party. The neglect done in the contract should be resulted in terms of damage that may be qualified in terms of monetary funds, physical harm or any psychological harm(The Law Handbook, 2015). The tort of negligence occurred towards the neighbor that may be directly affected by the wrongful act as committed by the party that owns the duty of care. The duty of care is owned by any person that is reasonable exposed or present to the actions so undertaken.
In the case of Donoghue v Stevenson, it can be identified that the defendant should be in violation of the duty of care and the same violation should be related to the harm caused by the plaintiff.Thisharm should be avoided by the reasonable person for being foreseeable and owns the duty of care. It focuses on the creation of the manufacturer’s liability towards the general consumer and only to the consumer that buys the product. This would allow the consumers to be protected towards the harmful products as agroup. In the case of Caparo industries, it is determined that at the time of examining the tort of negligence, mainly three principles are considered. These principles are damage, causation, and proximity(Young, 2010). The remoteness of the damage implied the possibility of the harmful act. The causation here is referred to the direct relationship between the wrongful act and the damages happened. And proximity here is defined as the least actual possibility of the influence of the act to cause the damage.
3.3: Describe the concept of vicarious liability.
From the rules of vicarious liability, the employer would be held responsible for any actions done by any of his or her employees. The administrator would be held responsible for breach of duty done by the employees as the actions of the employees during the work time is mentioned and controlled by the employer. Any negligence during the business would be held under the regular course of business environment and it should also be ensured that the employer had delegated the duty which is responsible for happening in the breach(Andrews, 2011). According to the law, an employer should provide a healthy and safe environment to his employees so that no harmful accidents can be taken place. An employer must provide a safe place of a workplace to its labors. An employer should maintain a first-aid kit and other essential medications for the minor harms and injuries of the employees. All the equipments should be modern and safe for the working of the workers. In the case of Deatons v Flew, it can be identified that the vicarious liability only comes into action when the employees are performing the task assigned or given by the employers(Andrews, 2011). When the act is identified as personal and not professional, then the liability will fall on the employee (Jewell, 2002). According to the case of Battistoni v Thomas, if the act devoted by the worker is deliberate or outside of his assigned duty, the proprietor would not be held accountable for any harm caused to anyone or anything.
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 general liability of the workers towards their products has been established. Manufacturers are held to be responsible for the damages caused to the customers due to the effective products(Cornford, 2008). As in the case, when Mrs, Stevenson as affected by the damaged product, the manufacturer would be liable for the damages caused to her by the damaged products.In the case of Hill vs. Chief Constable, it can be noticed that police owned no liability towards the victims. It was due to the absence of proximity(Burrows, 2011). Victims were greater in number and the government doesnot assign the required number of worker force to protect the civilians. Thus, in the case of Donoghue vs. Stevenson, the harm which is caused falls under the liability of the manufacturer. In the case of Hill vs. Chief, the police owned theduty of care towards the whole citizens.
4.2: Discuss his position from the vicarious liability point of view.
After understanding the given case scenario, it can be identified that the taxi service would not be held liable for any accident that is caused by the taxi drivers during their job. Thus, in the scenario, it is given that the taxi service would not be held responsible for the damages or the accidents with any citizens. The statement mentioned by the taxi service is completely wrong as under the contract law, any action performed by an employee during the assigned job would be held under the accountability of the employer(Casebrief.me, 2016). This can be illustrated by the case of the Limpus v London General Omnibus Co., where the bus driver was found to be driving negligently during his duty hours. Thedriver committed an act which not falls on the driver but also to the bus service provider. If the action happened when he is not in his duty hours, then only the driver would be held responsible for the action.
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. Various examples have also been provided for understanding the different aspects of the contracts.
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