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Contract And Negilence

Aspects Of Contract And Negilence

Introduction to Contract And Negilence

A Contract is a legal agreement with certain terms between two or more entities in order to exchange something in return of some valuable things. Existence of the contract requires some of the essential elements like offer, acceptance, consideration and many more. In this project report, essential elements of a valid contract have been discussed (Howie, 2014). Along with this, certain specific terms that are included in the contract have also been mentioned. In addition to this, various case studies have been solved by considering various terms and elements of the contract. Lastly, various elements of vicarious liability, contractual liability and tort liability have also been mentioned.

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Task 1

1.1 Essential elements of a valid contract

There are various essential elements of a valid contract. Some of them are as follows:-

Offer

It is an act of presenting something in front of a person with an aim to reject or expect somerthing against valuable goods.

Case

Case of {Hyde v Wrench, [1840] 3Bea 334; 49 ER 132.1} According to this case Wrench made an offer to Hyde for the sell of property for £1200 which was refused by the Hyde. Afterwards, Hyde offer the Wrench to sell this property at £950, which was not accepted by the Wrench. Thus, in this case offer was there from Hyde side not there was no acceptance from Wrench side.

Acceptance

It is a process of accepting the offer made by the offeror in return of some valuable goods or services. Acceptance can be in oral and written form.

Case

Case of {Felthouse v Bindley [1862] EWHC CP j35 Court of Common Pleas} According to this case Nephew offer his uncle to sell his horse to her. But, uncle did not reply and at the same time, horse was sold out in an auction. Therefore, it can be said that silence cannot be treated as acceptance.

1.2 Impact of different types of contract

Bilateral contract

In this, both the parties are liable to perform the terms and conditions of contract in an equal manner.

Impact

A contract cannot be cancelled at any time. Both the parties are liable to perform the act. If, any party fails to perform his duty of care then in that case, other party is obliged to sue the defendant party.

Unilateral contract

These are the type of contracts in which only one party is liable to perform all the terms and conditions of contract. Another party is completely free from following the terms and conditions of contract.

Impact

Such type of contract can be cancelled at any time when it requires. But if anyone party has started performing the act then in that case, contract cannot be cancelled.

1.3 Analysing the terms of contract

Implied terms

These are the terms that are mentioned in the contract but not expressed as the time of formulating contract. These terms and conditions are included by the law. These terms can be expressed in oral or written form.

As per the case of Poussard v Spiers[1876] 1 QBD 410. the claimant party has the right to cancel the whole contract if the performance of the another party is not good.

Expresses terms

These are the terms that are mentioned and expressed in the contract at the time of its formation. These are the clauses that are included by both the parties with mutual trust and understanding.

According to the case of Hutton v Warren [1836] EWHC Exch J61 if any implied terms mentioned in the contract are not satisfied then in that case a whole contract is said to be void right from the beginning.

In nominate terms

These are the terms that can be considered as a condition or a warranty. Change in this term highly depends on the situation.

  • Warranties- if warranties are not satisfied then in that case the claimant's has the right to claim for a compensation from the defendant party but is not at all liable to cancel the contract (Brack, 2014).
  • Condition- If condition is not meet up both the parties then in that case the claimant party has the right to cancel the entire contract and is also liable to claim for a compensation.

Task 2

2.1 Element of contract in the given case scenario

As per the given case scenario, Ivan went into a Todor bookshop where he likes the book displayed and want to purchase the same which cost £50. Ivan took the same to the Todor and showed his intention to purchase the book. But Todor refused to sell the book to Ivan. He said that he has already sold out the book to Carl and he simply forgot to remove the book. He also said that it was the last piece he has to sell. it can be said that it is the case of offer and acceptance. Here, Offer was made by Ivan but, it was not accepted by Todor. Therefore, in this case, a valid contract could not be formed.

  • Offer- On the basis of this case, it can be said that an offer was made by the Ivan to purchase the book liked by him.
  • Acceptance- According to this case no acceptance was made by Todor for the offer made by Ivan.
  • Written contract- In this case, no written contract was formed between Ivan and Todor.
  • Express term- Condition of express term could not arise because a contract has not been formed between both the parties with mutual trust and understanding.

2.2 law of terms in different contract

Adam advertised in a newspaper about a reward of £1000 to a person who first swim across the English channels from Dover to Calais. In lieu of this, Brian started swimming from Dover to Calais.. But on the next day, Adam again placed an advertisement in a newspaper announcing that the reward has been withdraw. But unaware of that, Brian continued to swim and reached Calais. After that, he claimed for reward money from Adam. But, Adam refused to pay. Therefore, as per the law, it can be interpreted that it is the case of unilateral contract. In addition to this, Adam is also obliged to pay sum of compensation to Brian.

  • Offer- On the basis of given case, it can be concluded that offer has been made by the Adam.
  • Acceptance- After considering the above case, it can be said that acceptance was made by the Brian. But at the same time, Brian was obliged to inform Adam about his acceptance.
  • Unilateral Contract- A condition of unilateral contract occurs in the above case. Such contract cannot be cancelled at the time when another party has started performing the act (Howie,, 2014).
  • Express term- In this case, condition of express term does not arise, because contract is not made by the mutual understanding between both the parties.
  • Legal intention- There was no legal intention of Adam to hurt or cheat Brian. He cancelled the offer without knowing that Brian has started performing the act.

2.3 Effects of different terms on a given case scenario

According to this case Barry went to a p[ark where he saw a notice on which it was written that the “chair are hired for 50p/hr. After seeing which Barry went to the local council and paid 50p and took the ticket. Later on when Barry set on the chair the chair collapses and he was injured and his clothes were also damaged. In regard to which Barry claim for the compensation for the damage caused to him (Kodilinye, 2014). But the local council refuses to pay, because an exclusion clause on mentioned on the back side of the ticket which states that “no liabilities for the damage or injury caused due to failure of the hired equipment. However, it can be concluded that Barry is not liable to claim for a compensation for the damage caused to him.

  • Exclusion clause- It is the clause that is generally mentioned at the back side of the ticket. Thus, as the above case exclusion clause was mentioned at the back side of the ticket. It was the Barry mistake that he haven't read the information.
  • Bilateral contract- As per the case a bilateral contract has been formed between Barry and local council with shared understanding.
  • Express term- A contract has been formed between both the parties mutual trust.
  • Condition- No situation of “condition” arise between both the parties.

Task 3

3.1 The nature of liability in negligence

Liabilities in negligence is the breach of duty of care which in turn may result in the damage or injury of the individual. It can also be said as a failure of duty of an individual to perform his basic duty of care (Overgoor and et. al., 2015). It can be said as a negligence of care of the employer towards his employee. Suppose- An employer fails to inform his driver about the failure of the break in the car and he lieu of which driver was badly injured after the accident.

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As per the given scenario it has been found out that the Roger the dishwasher has been complaining about the skin rash developed to him due to washing utensils for a long period of period. In regard to which he claim for a sum of compensation from Ben the owner of Regent hotel for the rashes caused to him. But Ben refuse to pay him because Ben has already taken into consideration all the safety measures. Ben has provided rubber gloves to all this employees. Thus, on the basis of the above case it can be concluded that Ben is not liable is pay compensation to the Roger under the law of negligence. In addition to this, it can be said that Ben owe a non-delegable duty of care towards his employees and is also oblige to provide a safe working environment to its employees. Therefore, in respect to this concept Ben has performed his duty in an effective way by providing all the employee the rubber gloves.

On the basis of the employee liability act very employer is mandatory to provide a safe working environment to all its employee (Uddin, 2015). Along with this they should also see that no employee in the organisation is injured by any act within an organisation. Apart from this it is the duty of employee too follow the safety measure provided by the employer.

3.2 How business can be vicariously liable

Vicariously liabilities is the liabilities in which an individual is obliged to pay the compensation to a injured person who has a direct relationship with the defendant person. In other words it can be said that employer is liable for the act and omissions of this employee.

As per the given case Colin the head chief of the Regent hotel hit the Roger the dishwasher with a frying pan. In regard to which Roger was badly injured and he also refuse to go to the hospital. In lieu of which Roger claim for a compensation from Ben against the irrelevant act of the Colin (Raine, 2014). Thus, after taking into consideration the concept of vicariously liabilities Ben is completely liable to pay to Roger for the injury caused to him on behalf of Colin. Because it is the responsibilities of the employer to see that no irrelevant action take place between the employees. In addition to this Roger also has the right to sue Colin.

Task 4

4.1 Elements of tort of negligence and defence & vicarious liability

Some of the elements of negligence are as follows:-

  • Justification:- As per the act no entity is liable to pay for the claim made by the injured party, if defendant party is able to prove them as a innocent against the claim made.
  • Illegal:- According to this element every injured party is liable to claim for a compensation for the injury caused to him due to any illegal act performed by the defendant party (Tadros, 2014).
  • Volenti-non Fit injuria:-This element states that claimant party is obliged to claim for a compensation for the injury caused to him. Besides this the claimant party has also the right to file a case against a defendant party.
  • Necessity:- As per this element no employer is obliged to pay for a damages to the injured party on behalf of the employee, if any immoral act has been performed by the employee themselves.

Occupier's liabilities act 1957 works for the welfare of the injured party. As per this act every defendant party is liable to pay a sum of compensation to the claimant party irrespective of the fact whether it was the mistake of defendant party or not (Eftestøl-Wilhelmsson, 2015). Thus, in order to overcome the drawbacks of this act Occupier's liabilities act 1984 was established. This act work fopr the betterment of the defendant party. According to this act a defendant party is not liable to pay for a compensation if there was no mistake of them.

The given case study interpret about the irrelevant behaviour of visitors towards a hotel authorities. The hotel management of Regent hotel places a notice in front of a pool which states that ' the pool will be closed between 7.00pm to 7.00am. Entry of visitor is restricted. Hazardous if not followed'. But Mark one of visitor went to a pool by ignoring the notice. He directly jumped into the pool and was badly injured because there was no water in the pool. In lieu of which designer sun glass of Mark has also been broken. Mark files a case against Regent Hotel for the damages caused to him.

Therefore, according to the Occupier's Liabilities Act 1957 Mark is liable to claim for a compensation from the hotel management. While on the other hand Regent hotel is liable to pay to Mark for the damages caused (Hogg, 2015). Thus, according to the Occupier's liabilities 1984 Hotel management is not liable to pay for the compensation to Mark because it was the mistake of Mark himself. Hotel management has considered consider all the safety measures.

Therefore, at last it can concluded that in accordance to the Occupier's Act 1957 Mark is liable to claim for the loss of this expensive sun glass (Izhak, 2015). While on the other hand as per the Occupier's liabilities Act 1984 Mark is not liable to claim for a sum of compensation, because it was his own mistake.

Conclusion

From the following report it can be concluded that availability of offer and acceptance is very important at the formation of a contract . If any one is missing then in that case a valid contract cannot be formed. In addition to this can be concluded that not every time it is the mistake of the defendant party many a time it is the mistake of claimant party itself. Therfore , at last it can be concluded that element of contractual liabilities, tort liabilities and vicariously liabilities are very important in order to solve out the various case study. Therefore, in order to solve the case in an effective manner the Occupier's liabilities Act has been taken into consideration.

References

  • Ciccarelli, J.K. and Ciccarelli, J.C., 2005. The legal aspects of parental rights in assisted reproductive technology. Journal of social issues.
  • Brack, G., 2014. Nurse prescribing and vicarious liability. Nurse prescribing.
  • Howie, F. ed., 2014. Safety in museums and galleries. Butterworth-Heinemann.
  • Kodilinye, G., 2014. Commonwealth Caribbean tort law. Routledge.
  • Nijem, R. M. and Galpin, A. J., 2014. Unilateral Versus Bilateral Exercise and the Role of the Bilateral Force Deficit. Strength & Conditioning Journal.
 

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