Unit 5 Contract Law and negligence cases Assignment

Task 1:

1.1

A contract can be elaborated as a negotiation between the parties in presence of their voluntary consent wherein the expressed terms of the contract are decided by the parties involved. The salient feature of a contract is reflected by whether the contract is valid, void, voidable and unenforceable. Furthermore important to highlight, a legally valid aspect of contract comprise of both expressed and implied terms. A contract can be unilateral, bilateral and can be developed by writing or by verbally communication between the parties. In case of bilateral contract two promises are evident to be immediately changed while in unilateral contract the agreement s primarily dependent on the completion of an act by one party (Fafinski and Finch, 2010).

 

• Offer:  For a contract to be developed presence of an offer is mandatory which is also considered as half of the said agreement. Hence an offer in this context can be defined as the willingness to be bound on specific terms and conditions keeping its certainty. However an offer is distinct from an invitation to treat that is delivered through advertisement, display of good, auction etc (Fafinski and Finch, 2010). The case of Harris versus Nickerson can be reviewed that discussed the difference of an offer from statements of intent. Revocation of the offer should be effectively communicated to the offeree as highlighted in the case of Byrne versus Van Tienhoven. The case of William versus Carwardine highlighted the legal implication of an offer that is made to the global audience (McKendrick, 2005).
• Acceptance: The other counterpart of an agreement is acceptance that must be complete and unconditional. However acceptance to an offer cannot vary from the original offer. The case of Northern Airlines versus Dennis Ferranti Meters can be cited that discussed the legal aspects of counter-offer.  Furthermore it is mandatory for an offer to be open at the time of acceptance and also it is essential for proper communication of the acceptance to the offeror by the offeree. However the offeror   may hold the right to waive the right of communication in this context (Stone, 2003).  The case of Powell versus Lee can be   reviewed in order to understand that acceptance to an offer should be communicated by a dependable third party ("Powell v Lee [1908]", 2016).  Communication of acceptance being a potential requirement can be done either verbally or by conduct. The case of Brogden versus Metropolitan Railways is an example showing communication of acceptance to an offer by conduct (swarb.co.uk, 2016). Time being of the major concern it is essential for the acceptance to be made within a justified time frame. The case of Ramsgate Victoria Hotel versus Montefiori is an example of this kind (E-lawresources.co.uk, 2016).
• Intention to bind into a contract: The presence of clear intention of the parties or individuals to enter into a contract and to keep the contractual terms and conditions is important that is supported the mutual consent of the parties. However considering the case of commercial agreement rebuttable intention to establish a legally binding agreement is observed although domestic or social agreements are not intended to create a legal relation. The case of Balfour versus Balfour is a good example to be reviewed (The Law Handbook, 2016).
• Lawful consideration: This particular aspect can be identified as a two-way thing in simple or Parol contract. Lawful consideration hence can be either executed or   remain in the form of executory, in the latter case promise is exchanged for another promise. Formation of a contract demand a lawful consideration that should not be past, must move from the promisee (Stone, 2003). The    case of Lampleigh versus Braithwait can be cited in this respect. Another key essential in this respect is consideration in a contract should be sufficient in nature (Webstroke.co.uk, 2016). The case of Collins versus Godefroy can be reviewed that highlighted consideration if not sufficient should be in accordance with a legal duty already owned (E-lawresources.co.uk, 2016).
• Capacity: In the eye of law an individual who is interested to enter into a contract should not be minor and they are excused from bearing the contractual responsibility. Furthermore mentally challenged individuals and drug addicted people are also not legally permitted to form a contract or enter into any contractual obligation (Peel and Treitel, 2011).
• Free consent: It is both unethical and illegal if an individual enter into a contract as a result of coercion, undue influence, fraudulent activity, misrepresentation or by mistake. Hence free consent should be given by the individuals during forming a contract (Peel and Treitel, 2011).
• Legality: In the process of contract formation the concerned parties are not permitted to enforce contract that reflect an illegal act. Important to note such contract if identified are considered as illegal and the parties involved are subjected to face legal penalties. Hence legality of a contract is one of the key elements of contract formation (Peel and Treitel, 2011).

Certainty of meaning

• Possibility of performance: Feasibility to address the contractual obligations should be kept on focus while deciding the terms and conditions in a contract. Hence contractual obligations should be as such that they can be practically achieved by the parties involved.
• Legal formalities: In order to successfully establish a contract it is essential to focus of its documentation part. The expressed contractual terms should be properly documented along with complete identification details of the parties involved (Ruff, 2002).

On the concluding ground it can be conveyed that if any one of the above discussed elements are not incorporated the contract   is legally invalid or can also be declared as a void contract.

   1.2:

An affirmative response can be given addressing the task question. In addition to formation of written contract and by face to face communication, through distant selling approach a contract can be developed between the distantly located parties. However postal rule is not applicable in this context. For a contract to be developed through distant selling approach demand the immense use of electronic media like internal and social communication platform. Telephonic conversation also commendably contributes in contract formation by distant selling approach (Fafinski and Finch, 2010). In this context it can be also highlighted that distant sales or service regulation scheme are applicable for execution of contract formation through distant selling approach. Although this mode of contract formation do not have the benefits of contract formed by face to face communication but through this approach instantaneous communication between the parties is possible. Business expansion greatly favours the incorporation of contract formation through distant selling approach. Apart from this in distant selling contract the consumers own the legal right to ask for inspection of the products before delivery although written communication is essential in this context. Cancellation of contract formed through distant selling approach also follows similar procedure. The consumer contract regulations have formulated certain criteria that a seller must meet while entering into a distant selling contract (Peel and Treitel, 2011). Hence it is mandatory for the seller to provide a good description of the goods or services, the price of the same, minimum duration of the contract and information regarding the seller to the purchaser.

1.3: 

The phenomena of invitation to treat and offer are two separate aspects of contract formation. Advertisements, auctions, display of goods and mere statement of price are all examples of invitation to treat and should be not confused with an offer. however the words used while advertising a product or a service play a pivotal role deciding whether the advertisement reflect an invitation to treat or it is presenting an  unilateral contract (Stone, 2003). Referring to the case of Carlill versus Carbolic Smoke Ball Co. (1932) it is observed that the plaintiff believed in defendant’s advertisement and brought the said product. However the plaintiff was infected with flu virus following the intake of smoke ball purchased from the said company. She further claimed for the compensation that was already declared by the defendant through his advertisement. Hence this case can be considered as an example that highlighted expressed contractual promise to pay the claimant. The court’s decision was given in favour of the plaintiff in this case because it was observed that that words used in the concerned advertisement reflected a unilateral offer to the global consumer (Casebriefs.com, 2016). Also acceptance to this unilateral offer was only by satisfying the conditions for using the smoke ball. However the purchase of the concerned product was identified as a good consideration because a determinant incurred. Clear benefit of the carbolic smoke ball company was also evident as many consumers purchased the product relying on the given advertisement. Another important fact supporting justified compensation for the claimant was the company’s claim to deposit £1000 at a particular bank indicated serious intention to be legally bound (Australiancontractlaw.com, 2016). Hence the advertisement of this cited case   cannot be considered as an invitation to treat but can be represented as a unilateral contract. The cited case therefore mirrored the significance of the words used in an advertisement.

Task 2:

2.1:       

Prior entering into a detailed discussion on the given topic Contract Law and negligence cases Assignment. it is essential to convey that a  valid contract is formed between the parties in presence of an offer, acceptance to the placed offer by effective communication lawful consideration, free consent of the parties, capacity and intention to enter into a contract. In this case an individual named William is presented as the off eror and David is presented as the offeree. Both the offeror and the offeree are evident to be adult with mentally stable condition. This reflects the legal capacity of the involved parties to enter into the said contract (Stone, 2003).  William through placing an advertisement that indicated invitation to treat initiated an offer that as later properly communicated to the offeree. This present case situation also indicated the offer made by William to be certain. The case of Gunthing versus Lynn is an example in this respect.  On the contrary presence of effective communication from David’s side also indicated the acceptance to the offer (Scribd, 2016). The offer accepted by David was evident to be complete and unconditional. Hence both offer and acceptance to the offer are evident in this case. Also the case of Errington versus Errington can be reviewed in support of the fact that David was evident to begin his work as an acceptance to the offer and hence it cannot be revoked (Casebrief.me, 2016).  Meeting of minds is crucial for a contract to be formed the communication between the involved parties clearly indicated this particular aspect. In this context the case of Brinkibon versus Stahag Stahl (1975) can be cited as an example wherein acceptance to an offer was communicated instantaneously (Australiancontractlaw.com, 2016). 

Free consent was also visible as the contractual terms and conditions were decided with mutual consent by William and David. Consideration being another potential element for contract formation was also clearly visible in this case. In support to this the price consideration can be highlighted. The advance paid by William to David and its subsequent acceptance indicated the intention of the parte to develop a contract. Another consideration that was evident in this case is the tie consideration as William mentioned the specific time by which the work should be completed (Peel and Treitel, 2011). Hence this particular case comprising of all the key element of contract formation can be considered as a bilateral contract wherein both the involved parties are required to remain obliged to the contractual terms and conditions.

2.2:  

Learning from the information provided in the given case it is clearly evident that David remained silent following the offer of faster delivery placed by William. On a legal aspect the key elements for formation of a valid contract is offer and acceptance to the offer wherein proper communication by the offeree is mandatory. Silence of the offeree cannot be considered as an acceptance. Hence the offeree need to either verbally communicate the acceptance to the proposed offer or can accept the said offer through conduct (McKendrick, 2005). This particular case situation can be suitably aligned with the case of Felthouse versus Bindley wherein the sale offer of a house was not communicated as the offeree remained silent. Hence the case has highlighted that silence of the offeree cannot be legally implied as an acceptance to the offer placed (E-lawresources.co.uk, 2016).  Therefore it can be inferred that although William has verbally communicated his offer to David but received no response from the offeree’s side; no valid contract was developed between both the concerned parties. 2.3:

• As already highlighted in the previous segment of this assignment presence of capacity to perform is one of the key element required for contract formation and failure to perform by any one of the involve contracting party indicate breach in contract. Compensation claim for recovery of damages hence become the right of the injured party suffering breach in contract. In this context it can be further added that breach in warranty is distinct from breach in conditions of the contract and in the former case, the injured party has no right to terminate the contract. However in conditions of the contract direct the injured party to terminate the contract with immediate effect (McKendrick, 2005). In this case a situation is presented wherein William requested David to complete the work in an earlier date and for which William also agreed to pay David an additional amount of money. Completion of the assigned task can be considered as a request that William made and this cannot be considered as a contractual term. In this context it can be conclude that if David fails to complete the assigned work on the date specified by William, legally is not responsible for breach in the said contract. It can be affirmed that as David’s consent to complete the assigned work at an earlier date was only a response to William’s request. Therefore if David fails to complete the work in due date as requested by William legally he cannot be made accountable for breach in contract. However it is also essential to understand that if David fails to complete the work within the initially decided time frame, then David can be held responsible for breach in contract and under such situation the offeror is eligible to file a compensation claim.
• Learning from the information provided in the given case study it is clearly observed that David has asked for extra payment following the completion of the task assigned by William on an earlier date. However one of the important points in this case is the fact that the offeree encountered shortage of labour in the middle of his contractual performance although that was not intentionally done by David. It can be further added that William delivered his consent to pay an additionally sum of £2000 as asked by David on completion of the work with a delivery date as requested by William.  David’s completion of the assigned work on the exact date without causing any delay in delivery strongly reflected his obligations towards the contractual terms and conditions decided between him and William. Hence on the concluding ground it can be inferred that David has right to claim the quoted amount because William has already conveyed his consent to this.  In this case the amount of consideration can be considered playing the pivotal role that has undergone certain alteration. The changes with respect to contractual conditions were made with consent from both the involved parties. Also it is equally important for the concerned parties to remain obliged to the contractual terms without escaping from it (Mulcahy, 2008). Therefore, if William remains persistent towards refusing to pay the extra money as decided previously, David can surely proceed for judiciary action as a recovery to the breach incident.

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Task 3:

3.1

The fundamental concept of tort can be explained as a civil wrong responsible for harm or injury or damage to another individual in an unfair manner. Important to highlight that tort committed result in tort liabilities and the accused individuals is entitled for serve the legal penalties as directed by the judiciary body. As there exist numerous variant of tort each of such are sufficient to give rise to tort liabilities. The incidents of trespassing, battery causing intention harm to another individual, assault and creating nuisance are the example of diverse types of torts. Interesting the case of Nash versus Sheen has exemplified a situation that highlighted it is not always necessary to involved violence while committing a tort. Hence tort liability can be considered as the result of a negligent act caused due to absence of duty of care (Edwards et al., 2012). Furthermore based on the extent of damage caused due to a tort, the tort liability issue is found to be evaluated. Hence it can be inferred that tort liability is primarily based on fault where in majority of situations the individual incurring tort liability is evident not to match his conduct to an objectively reasonable standard. The McDonald’s coffee case is a classic example that depicted tort liability and its legal implications (Cooke, 2011).

The liability that arises due to a contract formed between the parties can be defined as the contractual liability. On the other hand the liability that emerges from a tortious activity is considered as tortious liability. The potential difference between the phenomena of contractual liability and tortious liability is in the nature of duty executed. Important to convey that in case of tortious liability the duty are usually fixed by the law while the duties that arise as a part of contractual liability are determined by the parties involved in the contract. Another distinction between the above mentioned phenomena is in a tortious claim it is not essential for the defendant to possess a relation with the claimant which is one of the key requirement for placing a claim with respect to contractual liability. Moreover in case of contractual liability the claimant and the defendant must remain associated with a contract while in case of tortious liability both the claimant and the defendant may be unrelated or distantly related to each other. Presence of a contract is not important in this case (Swan, Reiter and Bala, 2006).

3.2

In the eye of law the phenomena of negligence is considered as one of the major tort that encompass different situations. Hence the act of negligence can be better explained as a breach of legal duty to take reasonable or justified care giving rise to consequences like physical or mental damages or material or property loss to another individual. However a successful negligent claim can be placed provided the claimant or the injured party has given supporting evidences indicating the defendant owned them a duty of care, the duty of care was breached causing damage and also the damage was not too remote. Whether the damages caused are foreseeable by the defendant is another important point for establishing a negligent claim (Swan, Reiter and Bala, 2006). Duty of care with respect to a negligent claim is further evaluated in according to the type of loss or damage incident Caparo test is conducted in negligent claim cases related with personal injury and property loss while Alcock test is applicable for examining the psychiatric injury. However the other consideration with respect to negligent claim is pure economic loss, policy considerations and liability relating to an omission. In order to understand the proximate cause to support negligent claim the ‘but-for’ test can be executed. The case of Barnett versus Chelsea & Kensington hospital (1969) can be reviewed in this aspect (E-lawresources.co.uk, 2016).

Examination of remoteness of damage is very crucial for a negligent claim as this particular aspect is found to be related with the requirement that the damage must be of foreseeable type. Hence a negligent claim is successfully if it is established that the damage caused was not too remote. In this context the case of Re Polemis versus Furness Withy & Company Ltd can be cited. Furthermore the case of Doughty versus Turner Manufacturing company (1964) can be reviewed to have an insight about the wagon mound test that finds its application in examining the remoteness of damage (Galligan, 2007). The case of Smith versus Leech Brain & Co. can be considered as an example that discussed a situation where in the court was evident to award damages in accordance to the Fact that the issue was foreseeable where public policy demand was also present (Hodge, 2004).

3.3

The legal implication of vicarious liability of the employer mirror the doctrine of respondeat superior which literally mean ‘let the master answer.’ According to this particular doctrine an employer or an organization can be held vicariously accountable for the tort committed by his employees. The master-servant role can be aligned to this context. Hence on a detailed note, vicarious liability is a variant of strict and secondary liability that has made its emergence from the common law doctrine of agency, respondeat superior. However vicarious liability is distinct from contributory liability which is another form of secondary liability.  The case of Vaughan versus Taff Vale Railway Co. (1860) can be cited wherein a railway company ran a railway across the plaintiff’s land which was under the authorization by statute. Woods of the plaintiff’s land were blazed with the sparks that came out of the engine. In this case the railway company was not held vicariously liable for the fire as care has been taken to prevent the sparks. The statutory authorization issue was applied as a defence in this case (swarb.co.uk, 2016). Another case wherein the employer was not held vicariously responsible for the act of its employee is the case of Heasemans versus Clarity Cleaning (1987). According to the case fact one of the cleaners from an outside company used the office phones that generated a bill amount of £1,411. In this case the cleaning company was not held vicariously responsible because the accused was evident to use phones outside her   work responsibilities as a cleaner (Osborne, 2003).

In contrast to the above cited cases wherein the employer was not held vicariously responsible, two more cases shall be cited that shall discuss how an employer was held vicariously responsible. The case of Beazley versus Curry can be cited that emphasized on issues related to business enterprise risk and hence the applicability of vicariously liability. The case of Barker versus Corus Plc can be considered as an example wherein the employer was held vicariously liable for the negligent exposure to asbestos that resulted to a material risk of mesothelioma in one of the employee (swarb.co.uk, 2016).

4.1

Addressing the task question an illustrative note shall be produced presenting a comparative analysis of the verdicts given in to cases namely the case of Donoghue versus Stevenson (1932) and the case of Hill versus Chief Constable of West Yorkshire (1989). The former case was also famous in the name of ‘snail in the bottle case’ that depicted the negligent act of a ginger beer manufacturer that subsequently caused serious illness of the claimant. The facts of this cited case presented a situating wherein Mrs. Donoghue the claimant discovered a decomposed snail in the bottle of ginger beer bottle she purchased. This sight was so upsetting that the claimant suffered from physical illness. The House of Lords held the manufacturer of owned a duty of care to her ad it was breached. Furthermore it was also held that treasonable foreseeability existed in this context and it is the responsible of the concerned manufacture to ensure safety of its consumer. Hence the verdicts produced in this particular case highlighted the presence of negligence from the manufacturer’s side along with absence of duty of care (Scottishlawreports.org.uk, 2016). Another major and perhaps the most prominent outcome of this popular case was the formulation of ‘neighbour’s principle’. According to this principle, every individual should take reasonable care to avoid acts and omissions that foresee damage of injury to the neighbour. However the case of Marc Rich & Co. versus Bishops Rock Marine (1995) can be reviewed in this context to understand the test applicable to evaluate the presence of duty of care (Edwards et al., 2012).

 The case of Hill versus Chief Constable of West Yorkshire (1989) presented a situation where in an individual named Jacqueline Hill was murdered by the famous Yorkshire ripper who was also held accountable for previous 13 murders and 8 attempts to murder cases for a period of last 5 years. Contrasting with the previously cited case, over here the victims’ mother did not filed the case against the culprit but a legal procedure was initiated against the police professionals of the town. Negligent claims were placed by the victims’ mother pointing that the police were negligent in detection and detention of the murderer. However according to the defendant’s statement as there was no cause of action no duty of care was owned by the police in detection of the said crime. The decision of the jury for this case was a contrast to that of the snail in the bottle case. The decisions produced in this case supported no duty of care was owned.

Both the above cited cases mirror a very contrasting situation although incident of a tort is common in both the cases. The verdicts produced in the case of Donoghue versus Stevenson’s case successfully addressed the negligent claim and it was affirmed that duty of care was owned by the defendant towards the claimant. Hence on a reflective note it can be stated that the next cited case should also support presence of duty of care of the police professionals towards the citizen. Additionally it is justified to consider that the police professionals bear a social responsibility towards the well being of the citizen. Hence duty of care should be exerted by them in protection and prevention of criminal offenses.                                                       

4.2

In compliant with the task given an attempt shall be undertaken to analyse the given case in light of vicarious liability of the employer or an organization. Employer should remain thoroughly informed regarding the legal consequences they might face with respect to vicarious liability wherein they can be held accountable for the tort committed by their employee. The rationale behind implication of this legal procedure is supported by the fact that the employer act as the controlling body of this employee; although to impose this legal process it is essential to examine whether the tort committed the individual is employed by the defendant and whether this wrongful act is incident in course of the employment tenure of the accused. However vicarious liability cannot be imposed to an employer or an organization for the tort committed by an independent contractor (Brodie, 2010).

The given case can be suitably aligned with the legal implications of vicarious liability wherein the concerned call taxi service centre can be held accountable for the tort committed by its employed drivers. Important to note that the tort committed should be a part of his professional duty and also during the course of his employment.

Addressing the issue it can be further added that in order to ensure the accountability of the concerned organization it should conduct integration test to evaluate whether the concerned driver’s work was an integral part of the concerned business strategy. The other tests applicable in this respect are control test and economic reality test. By performing control test the judiciary body is capable of examining who has the control over the way through which the work was executed. On the contrary   economic reality test enable the court to evaluate the status of relations exist within the concerned individual and the organization in question. Another frequently implemented test in this respect is the Salmond test on torts through which it is possible to investigate whether the incident tort was committed in the course of employment (Brodie, 2010). In this context the case of Bugge versus Brown can be reviewed that highlight the presence of ‘course of employment’, ‘scope of employment’ and ‘sphere of employment’ holding the employer vicariously responsible (swarb.co.uk, 2016). However, through application of the guiding principles of common law the concerned call taxi service centre is entitled to recover the   damages from the employees under certain situations. In this respect the case of Lister versus Romford Ice Cold Storage can be cited (swarb.co.uk, 2016).

Although for a number of reasons the concerned call taxi service centre can be held vicariously responsible for the tort committed by its drivers but it is equally important to understand that the said organization cannot be held vicariously liable for the tortious act of an independent contractor. However the organization can be held vicariously accountable for delegation of non-delegable duty. The case of Rarry versus Ashton (1876) is a good example in this context (Wells, 2001).

References:

Australiancontractlaw.com. (2016). Australian Contract Law | Julie Clarke. [online] Available at: http://www.australiancontractlaw.com/cases/carlill.html [Accessed 18 Nov. 2016].
Australiancontractlaw.com. (2016). Australian Contract Law | Julie Clarke. [online] Available at: http://www.australiancontractlaw.com/cases/brinkibon.html [Accessed 18 Nov. 2016]
Brodie, D. (2010). Enterprise liability and the common law. 1st ed. Cambridge, UK: Cambridge University Press
Casebrief.me. (2016). Errington v Errington | Case Brief Summary. [online] Available at: http://casebrief.me/casebriefs/errington-v-errington/ [Accessed 16 Nov. 2016].
Casebriefs.com. (2016). Carlill v. Carbolic Smoke Ball Co. | Casebriefs. [online] Available at: http://www.casebriefs.com/blog/law/contracts/contracts-keyed-to-calamari/the-agreement-process/carlill-v-carbolic-smoke-ball-co-2/ [Accessed 18 Nov. 2016].