Aspects of contract and negligence

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Aspects of contract and negligence

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Table of Contents Introduction ............................................................................................................................... 3 Project A....................................................................................................................................... 3 Task 1........................................................................................................................................3 Task 2........................................................................................................................................5 Project B....................................................................................................................................... 6 Task 3........................................................................................................................................6 Project C....................................................................................................................................... 8 Task 4........................................................................................................................................8 Conclusion ............................................................................................................................... 10 references................................................................................................................................. 11

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INTRODUCTION Contract is a legal agreement between two or more competent parties to do or not to do a particular thing. It creates contractual obligations for parties to perform. Tort law is a part of law which is established for act of negligence (Clarkson and et.al., 2010). It arises in absence of contractual relationship between parties. Present project report is focused on Contract and Tort Law of UK. The report comprises of legal clauses and precedents to provide effective judgment for given case studies. Various laws have been discussed such as Vicarious Liability and Occupiers Liability Act to support judgment for given scenario in the assignment.

PROJECT A Task 1 Contract and its essential elements Contract can be defined as an agreement between two parties which creates obligation for each party to do or not to do certain thing (Oughton, Marston and Harvey 2007). Examples of contract are rental deed, purchase document, promissory note etc. An agreement is said to be contract if essential elements are present in it, these elements are enumerated belowOffer- An offer is an expression of willingness of a party to other, for entering into a contractual relationship. It can be general or specific.

Offer is required to be certain and legal in the eyes of law.

Acceptance- Acceptance is the positive indication of the party to whom offer was made. There should be no conditions in the approval (Elements of Law of Contracts. 2012). If there is conditional acceptance then it will be considered as counter offer, which must be accepted by the other party.

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Consideration- For validity of contract, it is essential that promise should be made in exchange of something which can be measured in value. In legal terms it is known as Pro-Quo (i.e. something for something). It is not vital to be sufficient.

Legal intention- There should be legal intention of parties to enter into contractual relation. Thus, agreement made out of love and affection has no legal biding. If there is no intention to create legal relations in a contract, the contract could not be subject to a lawsuit (Clarkson, and et.al., 2010).

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Impact of types of contract Oral and written contract- Contractual agreement can be formed in oral or written form. Oral contracts are verbal agreements which are made on faith. Written contracts are more formal comparative to verbal. In situation of contradiction of oral contract, judgment depends on the situation while in written contract, deed is referred to determine award.

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Face to face and distance contract- In face to face contract, all the parties are present while formation of deed. In distance contract agreement

is

prepared

through

communication.

Distance

contracts

mailing are

and

more

telephonic complicated

comparative to face to face contract.

Express and implied contract- If contracts are formed with specific terms and conditions then it is considered as express contract. Sometimes party does not specifies what the terms are, but their actions are considered as the conditions of the contract. In such situations there may be an implied contract.

Unilateral and bilateral contract- Unilateral contracts are one sided contracts in which promise is made by one party without having consent of other party. There is no obligation on other party to perform, but if performance is given by other party then first party will be obliged to give performance (Oughton, Marston and Harvey 2007). Bilateral contracts are created on the basis of mutual exchange of promises.

Case study 1 In the given scenario advertisement is given by Jess for the sale of the care on a trade website for ÂŁ2650. This will be considered as invitation to treat. On the reference of advertisement Mr. Powell provided offer to Jess for the purchase of the car. In this situation, there was a distance contract between Mr. Powell and Jess. Advertisement will be considered as invitation to offer on which offer was given by Mr. Powell. Due to distance factor Mr. Powell said he will come after 3 days but Jess said if anyone comes before you then I will sell the car. On this Mr. Powell said he will pay advance if Jess promises that she will not sell the car for next three days and Jess agrees to Get Assignment Help from Professional Aussie Writers

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this. This will be considered as counter offer. On this offer acceptance is provided by Jess on the counter offer of Mr. Powell for a consideration. All the essential elements of contract are present in the agreement of Mr. Powell and Jess thus there is valid contract between them which binds them in contractual relationship.

Further there was conditional acceptance between the parties (Schaffer, 2009). At the end acceptance is provided by Jess on the counter offer of Mr. Powell for a consideration. All the essential elements of contract are present in the agreement of Mr. Powell and Jess thus there is valid contract between them which binds them in contractual relationship.

Task 2 Terms of the contract Terms are the duties and obligations of the parties which are required to be fulfilled while giving performance. It can be expressed or implied.

Expressed terms are more specific, which are inserted by mutual acceptance of parties (Best and Barnes, 2007). It should not be contradictory to law.

Implied terms of the contract are inserted by law of custom. It is assumed to be present in the agreement of parties. If there is contradiction between expressed and implied term of contract then expressed term will prevail. In certain situations implied terms prevail when expressed terms are against the public policy.

Case study 2 In the given situation, Barry went to the park to hire a chair.

Commercial activities of park were managed by local council. Barry paid 50p for the ticket for use of chair in park. After some time his chair collapse and caused damages to his clothes (Mann and Roberts, 2012). For this, Barry went to the attendant for complain. The attendant pointed towards the Get Assignment Help from Professional Aussie Writers

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clause at the back of the ticket which states “no liability will be accepted by local council in situation of failure of any hired equipment�.

In the given scenario there is implied contract between Barry and local council. Offer was given by Barry by paying 50p. It was accepted by local council by giving him ticket. There was proper consideration and legal intention of parties to enter into contractual relationship. Thus, there was valid contract between them. They both are obliged to follow terms and conditions of the contract.

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Clause written on the ticket will be considered as the exclusion clause of the contract, as it is reducing obligation of local council in situation of nonsatisfactory performance. Implied terms in the contract are local council should take care of their equipments that it may not harm the users of it (Clarkson and et.al., 2010). In the given situation both terms

are

contradictory. In the given situation exclusion inserted by local council is not fair and valid. For this aspect case of Barry V Chapleton can be considered.

As per this case, ticket is merely a receipt term stated on it will not be considered as part of the contract. As a consequence, council is not entitled to avail the benefit of exclusion clause.

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To avoid contradictions in future, customers of local council should carefully read the terms written on the ticket. Council can write the terms on the board near the park which should be clearly visible to the visitors (Clarkson, 2010). Along with this, they should modify the terms to eradicate contradiction in expressed and implied terms.

PROJECT B Tort is the civil wrong which arises from the act of negligence of defendant party. Tort law is applicable when there is absence of contractual relationship between parties. Torturous liability is imposed by law.

Task 3 Contrast liability of tort with contractual liability Contractual and tort liability both are part of the civil law. These liabilities are established to provide damages to innocent party from the act of the defendant. Liability can be removed if there is bilateral mistake or negligence of parties. Differences among them are as followContractual liability is established at the will of the parties while tort liability is imposed by law. Obligation for damages in contract arises due to breach of terms and conditions which are pre determined by the parties. In torturous liability it arises due to act of negligence. Damage under breach of contract is provided due to bring claimant in position if performance was given by defendant (Clarkson and et.al., 2010). Damage under torturous liability is provided to bring claimant in position if negligent act was not occurred. In contractual liability claim can be done for minor damages but it is not possible in tort.

Nature of liability in negligence Liability due to act of negligence are established for defendant by the case precedent of Donoghue V Stevenson, 1932. In this case study Mrs. Get Assignment Help from Professional Aussie Writers

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Donoghue went to the café for ice-cream and ginger beer. In his drink a decomposed snail emerged out of it. On this claim was made for damages on Stevenson for the injury (Bar, 2009). It was held by the court that manufacturer failed to hold duty of care thus he will be liable for damages.

According to this all persons should perform their duty with care. Their act should not be the reason of injury for other innocent parties. If a person fails to hold duty of care then he will be liable for his negligent act under law of negligence. Liability under Act of Negligence can be imposed if following conditions are satisfied➢ Defendant should owe duty of care to claimant ➢ Negligent act of defendant should be the primary reason for harm of claimant ➢ There should not be contractual relationship between parties ➢ Damages should not be too remote for claim Defences are provided to defendant in the following situations➢ Volenti-non Fit injuria- Risk is taken by claimant at his own will. ➢ If there is contributory negligence of both the parties then damages cannot be claimed by either of the party. ➢ If there is written and legal clause in agreement then liability of negligence can be excluded. But such clauses should not be against of law and custom.

Vicarious liability Vicarious is the Latin word which means alteration and modification.

Vicarious liability is an aberration from the norm of holding, in this innocent party is liable for damage caused by tortfeasor (Employer Vicarious Liability.

2013). Legal relationships which can lead to imputed negligence are covered

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in this law for example relationship of parent and child, husband and wife, and employer and employee etc.

Business can be held vicariously liable for the tortuous act of employees which are committed during the course of employment. This encourage accident prevention by giving employer legal duty to take care of their employees and their acts (Morgan, 2011).

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Case study 3 In the given situation advertisement was

given

by Adam for

announcing reward for the person who will cross the English Channel first from Dover to Calais. On the basis of advertisement Brian purchased bath and went for the accomplishment of the task (Oughton, Marston and Harvey 2007). Meanwhile another advertisement was given by Adam for termination of reward announced in the previous commercial. Brian was unaware about the second advertisement and he completed in performance. Now Brian is claiming for reward and Adam is refusing for the same.

In the given situation unilateral offer (i.e. general offer) was given by Adam, which can be accepted by anyone. Performance was given by Brian shows acceptance by him for the contract. There was a proper consideration Get Assignment Help from Professional Aussie Writers

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and legal consideration which is sufficient to create contractual obligation for the parties (Faure, 2009). Hence there was valid contract between Adam and Brian. Given situation can be linked to the case precedent of Carlill v Carbolic smoke ball company 1893 1 qb 256. In this case prize was declared by the company for any person who will use the smoke ball three times in a day as intended in tapered infection, colds, or any other disease. On the basis of advertisement Carlill purchased a ball and used as per directions and claimed for prize. Company refused to pay. Award was declared by the court that the company is liable to pay Carlill and they cannot refuse for the same.

Correspondingly in this situation Adam is liable to pay prize announced by him for the performance given be Brian.

Qualities of managing and organizing responsibility All persons should hold duty of care while giving their performance so their ignorance or negligence cannot harm other innocent parties (Harpwood, 2009). According to the principle of negligence, every person must take sensible care to avoid act of omission which can cause injury to the other party. Under this law neighbor are the parties who can be directly or indirectly affected from the actions of primary person.

To prevent vicarious liability business should take care of environment so their action should not cause injury to their visitors. They are also responsible for the negligent act of their employee. Thus business should take responsibility of the act of employees in the tenure of employment to prevent such actions.

PROJECT C Task 4 Occupier’s Liability Act

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Occupier’s Liability Act was established in 1957 to enhance the duty of care and avoid negligent act. According to this Act owner is responsible for the injury of visitors of his premises.

Case study 4 Given case study is on the Poshplace hotel which is owned by Ben. Mark decides to check in at hotel for a night. At that night a man entered in his room and threatened him to harm and to ask him to handover is antique jewellery. Robber was none other than gardener of the hotel who has master key of the hotel (LaMance, 2013). Meanwhile in the kitchen Roger was complaining due to skin infection. Although gloves was provided by employer, that was not used by Roger. Colin gets irritated by the act of Roger and hit him with the pan. In meantime Mark went to pool to cheer himself. There was a sign board with a warning that Pool is closed from 7.00 P.M. to 7.00 A.M., entry is restricted for visitors as it will hazardous when unattended.

Mark ignores the warning board and got injured and tears his expensive designer swim wear.

In the given situation four negligent acts occurred on which judgment will be provided through vicarious liability, occupier’s liability act and negligence (Journal of Tort Law. 2007). First incident happened with Mark of robbery in this vicarious liability will be applicable. Second incident is with roger in which defense in provided to employer of contributory negligence.

Third incident is again with Roger for physical violence for which vicarious liability will be applicable. Fourth and last incident is with Mark of swimming accident in which defense is provided to the Poshplace Hotel of Volenti-non Fit injuria.

Judgment for given statements is as follow➢ Statement A: Given statement is true as there is not duty of care of Neil to Roger for providing safe working environment. Prescribed duty Get Assignment Help from Professional Aussie Writers

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is of employer i.e. Ben. He is responsible to provide safe and hygienic environment to employers. In the injury of Roger, owner cannot be held liable because safety gloves were provided by him to employees for use. There is situation of contributory negligence. Roger had not taken the safety precaution which is the reason of his skin injury. He cannot claim for damages for such injury. ➢ Statement B: Given statement is false. Roger can claim from the owner under Vicarious Liability for the action of Collin. It is the duty of employer to instruct employees to avoid such violent act in business (Faure, 2009). Ben will be held vicariously liable for the act of Colin and will be obliged to provide damages to him. This will not remove obligation from actual tortfeasor i.e. Colin, legal penalty will be attracted to him. ➢ Statement C:

No, The Poshplace Hotel is liable to Mark under

Occupier’s Liability Act, 1957. It was responsibility of hotel to take care of visitors and their antiques. Employee of hotel looted him and threatened him. Hence, Mark is eligible to claim for damages. ➢ Statement D: According to amended act of Occupier’s Liability, 1984 there is no liability of The Poshplace Hotel to Mark. In the given case Volenti-non Fit injuria will be applicable as risk was taken at the choice of Mark (Harpwood, 2009). He ignored the warning written on the board near the pool. Organization completed their responsibility by keeping their board for visitors. Hence The Poshplace Hotel will not be liable for the swimming injury of Mark. ➢ Statement E: No, Mark cannot use the ordinary principles of negligence for claim against The Poshplace Hotel as there was a contractual relationship between them. Mark was injured twice at that night. First injury was due to robbery and second was due to swimming Get Assignment Help from Professional Aussie Writers

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accident. For first injury he can claim under vicarious liability on the hotel for second defense is provided to hotel of Volenti-non Fit injuria (Hassett, 2012). ➢ Statement F: Given statement is true. Damages cannot be claimed by Mark for the cost of his swimming trunks under the Occupiers’ Liability Act. As his swim suit got damaged due to his own negligence. For this injury defense under negligence is provided to The Poshplace Hotel of Volenti-non Fit injuria. Mark ignored the warning and got injured, so for this hotel cannot be held liable.

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➢ Statement G:

Mark cannot use law of Vicarious Liability to bring

claim against the Poshplace Hotel for the loss of his jewellery. As Mark was looted by the employee of the hotel and it is criminal offense (LaMance, 2013). Vicarious liability does not permit transfer of obligation arises due to criminal offense of employee on employer.

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CONCLUSION From the present project report it can be concluded that essential elements are required to be present in an agreement to make it enforceable by law. Contract and Tort both are the part of the civil law which is created to manage contractual and negligent acts. Damages are provided to claimant in both the laws to recover damages of claimant (Elements of Law of Contracts.

2012). According to Occupier’s Liability Act and vicarious liability business can held liable for the injury of visitors caused due to the negligent act of employees. Thus to prevent such actions business should take care of environment and do their acts with duty of care by avoiding omissions and negligent acts.

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REFERENCES Books and Journals Bar C. V., 2009. Non Contractual Liability Arising out of Damage Caused to Another. Walter de Gruytre.

Bennett, L. and Gibbeson, C., 2010. Perceptions of occupiers' liability risk by estate managers: A case study of memorial safety in English cemeteries. International Journal of Law in the Built Environment. 2(1) pp.76 – 93.

Best, A. and Barnes, W.D., 2007. Basic Tort Law Aspen Publishers Online.

Clarkson, K.W., 2010. Business law. Text and Cases: Legal. Cengage learning.

Clarkson, W. K. and et.al., 2010. Business Law: Text and Cases: Legal: Text and Cases : Legal, Ethical, Global, and Corporate Environment, Cengage Learning.

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