Embed Size (px)
Citation preview
Contents
Introduction......................................................................................................................................1
TASK-1............................................................................................................................................1
P1.Understanding the essential elements of a valid contract in a business context.....................1
P1.1 explain the importance of the essential elements required for the formation of a valid
contract.....................................................................................................................................1
P 1.2 Discuss the impact of different types of contract............................................................2
P 1.3 Analyze terms in contracts with reference to their meaning and effect..........................3
Task – 2............................................................................................................................................4
P2. Be able to apply the elements of a contract in business situation..........................................4
P2.1 Apply the elements of contract in given business scenarios............................................4
P2.2 Apply the law on terms in different contracts..................................................................6
P 2.3 evaluate the effect of different terms in given contracts.................................................7
Task-3..............................................................................................................................................8
P3. Understanding the principles of liability in negligence in business activities.......................8
P3.1 Contrast liability in tort with contractual liability............................................................8
3.2 Explain the nature of liability in negligence......................................................................8
P3.3 Explain how a business can be vicariously liable............................................................8
Task-4..............................................................................................................................................8
P4. Be able to apply principles of liability in negligence in business situations.........................8
P4.1 Apply the elements of the tort of negligence and defences in different business
situations using the scenarios 5 and 6 given below..................................................................8
P4.2 Apply the elements of vicarious liability in given business situations given in the
business scenarios 7 and 8 below.............................................................................................8
Conclusion.......................................................................................................................................9
Refrences.........................................................................................................................................9
Introduction
This report contains all the provisions which is related to the law of contracts, law of tort,
negligence and others. Law of contracts contains all the essential elements which are necessary
for the valid of the contract, and there are also various different types of terms which are used in
the contract. It also contains the vicariously liability under which various duties and liabilities of
the employer and employee is mentioned.
TASK-1
P1.Understanding the essential elements of a valid contract in a business context
P1.1 explain the importance of the essential elements required for the formation of a valid
contract
Contract: contract is the legal agreement which is held by the two parties. And after entering in
to the contract both parties are legally binding on each other. Contract creates various obligations
and rights on both parties.
The essential elements of the valid contract are:
1. Offer: For entering in to the contract there must be made an offer to the other party, and
offer must be accepted by the other party. The offer contains all the terms and
conditions of the contract, when the offer is accepted by the [parties then it will be legally
binding upon the parties. For the existence of the contract offer must have these point:
Offer must be in definite form for the acceptance.
Any person who has the intention for making the offer is not the offer.
If any price is in the supply of good then price should be mentioned in the offer.
Case: Gibson V Manchester City Council [1979] . [Collins et. Al., 2008]
2. Acceptance: Acceptance is the second essential element in the valid contract. The offeree
accepts the offer and contract has been made by the acceptance of the contract.
Acceptance can be made through any written, orally, or by any conduct, or through any
written e-mail. The offeree who accepts the offer must be communicated to the offeror if
it is in the silent form then it will not the legally valid.
Case: Yates Building Co v J Pulleyn Sons [1975]
3. Consideration: consideration must be very important for the valid contract. One person
gives promise to the other party for the consideration money has to be given. Any social
and domestic agreements are not enforced by the court. It is the exchange of money by
one party to another for the good and services which is provided by the other party. One
party has to pay the consideration money in return of the goods and services which is
provided by the other party.
Case: Chappell and Co Nestle Co Ltd [1959]
4. Intent: Both the parties must have intention to create a legal relationship. Court can only
enforce those agreements which have intention to create legal relationship. . [Collins et.
Al., 2008]
5. Privity of contract: under the common law the privity of contract is that in which parties
are under the contract and they have certain right and liabilities under the contract. This
contract give not right and obligation to the other third party which is not party of the
contract. . [Collins et. Al., 2008]
P 1.2 Discuss the impact of different types of contract
Face to face contract:
● Face to face contract is those contracts in which the parties stated their terms and
condition in the contract are made in the oral form not in the written form. It is made by
the physical appearance of the parties. The advantage of the face to face contract is that
both parties are easily understood the terms and conditions of the contract. The arty who
accepts the offer must not be under the influence of the other party or any force.
[Emanuel et. Al., 2012]
● Distance sale contract: Distance sale contract is that in which parties are made shopping
through the online like online hotel booking, online air tickets booking etc. under the
distance sale of contract party under the contract have no right to see the or make inquiry
about the goods and service which they purchase. It can be terminated by the party if the
copy of the contract is not received within 15 days after the contract has been made.
[Emanuel et. Al., 2012]
● Written contract: written contract are those contract in which the terms and conditions
of the contract are in the written form. The parties can use them as evidence against the
other party. The contract of the parties is include the written statement. If any dispute is
arising between the parties then they can solve their dispute by the written statement
easily. [Emanuel et. Al., 2012]
● Contract by conduct: contract by conduct is that contract in which the contract is made
by the conduct of the party. It is neither written nor in oral form. [Emanuel et. Al., 2012]
P 1.3 Analyze terms in contracts with reference to their meaning and effect
The parties under the contract are bound to perform all the conditions which is laid down for the
valid contract otherwise it will be breach of c contract. The terms which are in the contract are
the part of the contract between the contracting parties.
1. Condition term: Condition terms are those terms which are used by the party for making
the valid contracts .condition term is the most important part of the contract agreement. If
any party breach the any condition term of the contract then it will b liable for pay the
damages to the other party. He can refuse to carry out his liability under the contracts.
2. Warranties: warranties are the term which is not as much as important as the condition
term, is important for entering in to the contract. In this if any party breach the term then
the contract will not destroy by the party. The injured party has no right to terminate the
agreement on the breach of the warranty term.
The difference between the conditions and warranties are mentioned under the
section 11 of the sale of goods acts 1979.
Case: Bettini V Gye [1876]
3. Innominate terms: All the terms which is used in the contract in past are either
condition or warranties. But court also recognize the term which is known as the
innominate term. Innominate terms are depending upon the circumstances.
4. Express terms: Express terms are those terms which are in the either oral from or written
form but they are clearly stated in the contract.
5. Implied terms: implied terms are those terms which are not stated clearly in the contract
they are no need to mention in the contract.
The main sources of implied terms are:
Customs
Courts
Statute
Case: Hutton V Warren [1836] [Burrows, 2007]
6. Exemption clause: Exemption clause is also known as the exclusion clause. In this
clause party who are under the contract limits their liability if any breach is made by the
party. [Lawson, 2005]
Task – 2
P2. Be able to apply the elements of a contract in business situation
P2.1 Apply the elements of contract in given business scenarios.
Business scenario 1
Miss Kaur is the keen collector of the fine watches, pens, and luxury accessories. She saw a
notice of auction of the Montblanc, Catherine the Great, Limited Edition Patron of the arts series
of the fountain pen. She decides and travelled 264 km from London to attend the auction but
when she reaches at the auctions he found that the fountain pen auction has been cancelled on
second day of the auction. Miss kaur go to the antique shop where she find the same luxury
fountain pen but the cost of the pen is £ 1050 but she is able to pay the £ 800 for the fountain
pen but harry the shopkeeper is not agree with this price. He told him the final price £ 950 for the
fountain pen but she said to him that she would like to think about the lunch. But when she
returned back fountain pen already sold by the harry at £ 1000.
1. In the first case it is the invitation of offer from the auctioneer.
2. Mrs. Kaur himself gives response to the invitation of offer by reaching at the auction
palace.
3. Harry the shopkeeper made the open offer to all the customer and she think over the price
of the fountain pen after lunch but she did not accept the offer so there is not valid
contract has been made. So she is not the offeree. Offeree is the customer who buys the
fountain by the harry.
So according to my analyse Miss kaur cannot recover her damages form the harry or the
auctioneer.
Business scenario 3
Mia start his business of the builder his brother hakim who ran the real estate agency said to him
that renovate his bathroom by £ 2000 and one roof in one his properties. At the time Jane his
friend also asked for the work and he paid for that work for £ 1000. Mia completed his both
projects and after that hakim said that he only help his brother by offering him the work and the
Jane is also said to Mia that he also gives the work to the Mia for gaining the experience on the
basis of the friendship.
1. There is existence of the domestic agreement between the Mia and Hakim and it cannot
be enforceable by the court.
2. There is also social agreement between the Mia and Jane so social agreement is also not
enforced by the court.
3. There is no express term by the parties that the contract is the domestic and social
agreements and if any breached then plaintiff is liable of the damages then there is no
express term so Mia cannot claim the damages from both the parties.
P2.2 Apply the law on terms in different contracts
Employment contract is used for the application of the different contracts terms in the different
terms.
1. Implied terms under the employment contract
Safety of the workers under the health and safety act 2005
The wages of the worker has to be paid according with the employment right act
1996.
Factory will be liable for the damage which is suffered by the employee under the
premises of the employment. Under the Employer liability (defective equipment)
act 1969.
2. Express terms under the employment contract
Minimum wages should be given to the all the employees.
Working hours of the factory is 9 am to 5 pm.
Pension has not given to any of the employees.
Notice of termination has been given to the employee if there is any breach has
been made by the party.
If any employee comes late by 30 minutes or by half day they should inform the
employer.
3. Exclusion term under this contract
Pension is not given to any employee.
It is not the responsibility of the employer to give refreshment to the employees.
4. Conditions
Condition is term which is very important term for the contract.
The worker can take the sick leave or the maternity or paternity leave under the
act employment right act, 1996.
The salary has been given according with the number of attendance
5. Warranties
Al the employees are treated equally under the equality act 2010.
Problem which is related to the employment is informed to the employer.
.
P 2.3 evaluate the effect of different terms in given contracts
Business scenario4
In this Mr. X is engaged with eth Miss Y fro the 3 years. The salary of Miss Y is £25000 but
ether is written agreement that she should not wear the trouser in the employment place but she
has to dress smartly. The researcher has to complete his work whatever hours are necessary for
complete assignment given for her. X had asked to y that she has to complete the statistics for the
tomorrow meeting which is held on 9 am. She did not complete the work in spite she was staying
at the office at late midnight. When X arrived she did not complete his work before the X arrived
at 8. 30 am. X was angry on her. And he also noticed that she also wears the trouser and X
terminated the contract because she breaches the conditions of the contract. And form this Y was
humiliated and she is in depression and she get the medical treatment.
1. Both are under the valid employment contract.
2. Second is that she had not to wear the trouser in the employment place but she wear
trouser she breach the contract. It is the express term in the contract and also had the
exclusion term for the X.
3. It is the express term in the contract that she had to complete the assignment in the
working hours but she did not complete the work in the working hours. At the end it was
the open ended, innominate term as the contract time is not sufficient for the work of
research. It is depend upon the different different person.
4. So the contracts which is terminated by the Mr. x is valid because she breach all the
condition of the contract. And she has n o right to claim damages against the Mr. X.
Task-3
P3. Understanding the principles of liability in negligence in business activities
P3.1 Contrast liability in tort with contractual liability
Tort is the wrong which is committed by the individual in which the individual harm the other
person or harm the individual rights by the person who is under the duty of Statute. Under this
person suffers injury, damages or personal injury or death due to the wrongful act which is
committed by the individual. These torts are also made by the individual by the negligence of the
person. The person who do the tort will sued by the injured party for claiming the compensation
and court has power to make an order of injunction to stop the individual for the future act. Party
is compensated by the damages which are paid by the defendant.
Tortious lability is of two types
Vicarious: under vicarious liability employer is held responsible for the act done by his
employee. Liability is arising when there is employee and employer relationship is arises.
Employer is not responsible if any act done by the employee out of the employment
premises.
Negligence: negligence has been made by the individual who is under the duty of care.
The individual breach the duty of care and from the breach of the duty of care individual
is harmed.
Contractual liability: contractual liability is that in which the contract is breached by the party.
Liability under the contract is arising when both parties are under the contractual liability.
Tortious liability and contractual liability
1. In tortious liability the tort is committed by the individual whereas under the contractual
liability the contracting parties are under the legally binding and one party breach the
condition of the party.
2. Under the tort liability there is no need of consent but in contract liability consent must
have too be taken and consent must be free from any force, fraud etc.
3. In tort liability damages is not measured but in contract liability the damages are
measured and injured party compensated according to the damages.
4. There is no contractual relationship between the party under the tort and in contract there
must be contract relationship between the parties for claiming the compensation by the
injured party. [Blond et. Al., 2009]
P3.2 Explain the nature of liability in negligence
Negligence
Negligence is that in which one individual commits an acts or omission which causes injury loss
or damages to the other individual but the act which is made by the individual is not
intentionally. Any person who want to file the suit against the defendant then he has to prove
these things.
1. The act or omission is committed by the individual under the duty of care.
2. The act gives the loss, damages to the individual.
3. Individual breach the duty of care.
Duty of care: the person who was claiming under the tort of negligence than he has to prove that
the individual is under the duty of care. Duty of care is the relationship between the
manufacturers has liability towards the consumers.
If any person who suffers the personal injury and damages of property then Caparo test is
applied.
If any person suffers any psychiatric injury then the Alcock test is applied,
Case Hinz V berry [1970] 2 QB 40
In this case Mr. and Mrs. Hinz went for the picnic with their family in which they have
their four children’s and four others fostered children and her wife is also pregnant. Mrs.
Hinz went across the road with his one child for picking the bluebells but Mr. Hinz was
with the other children and a Jaguar car is drive by the Mr. Berry and he hit the Mr. Hinz
and other children’s her husband was died and she goes in to depression. So she has the
right to claim the compensation because of the psychiatric conditions.
The person who injured the other person must be under the duty of care like manufacturer
is under the duty of care for his consumers; employer is under the duty of care for their
employee at the workplace.
Breach of duty: The Second is the breach of duty which is also need to prove that individual
breach his duty of care.
Case: Vaughan v Menlove (1837) 3 Bing. N. C. 467
Cause damages: the people who do the wrongful act which is committed by the tortfeasor
which result the damages the damages has been measured or decide by applying the ‘ but for
test’.
Case: Barnett V chelsea and Kensington Hospital [1969] 1 QB 428
Remoteness of damages: The plaintiff has also proved that the damage which is suffered by him
is the foreseeable kind. The defendant is liable for the damages which are foreseeable kind.
Case: Wagon Mound Case [1961] AC 388
P3.3 Explain how a business can be vicariously liable
Vicarious liability is that in which the superior is always responsible for the act or omission
which is committed by his sub- ordinate. It is the English tor of law which imposed the strict
liability on the individual. Generally it is held within the relationship of the employer and
employee, principal and agent etc. employer is held liable for the wrongdoing is committed by
the employee. Employer is held responsible for the act which is committed by the employee
when he performs his duties. Employers are also liable for the bullying, harassment, violent or
any discriminatory act, copyright infringement by the employee.
Employer exempted from his liability if:
The person who caused injury or damages to the injured party is not the employee of the
employer.
Employee not harmed the individual in the course of the employment.
Employee is already prohibited not to the act.
If any person who is the independent contractor then employer is not held liable for the
vicarious liability.
In the driving case car owner is liable for the act which is committed by the driver, but
driver was acting outside the duty then car owner or the business owner is not liable for
the act which is act by the driver.
Task-4
P4. Be able to apply principles of liability in negligence in business situations
P4.1 Apply the elements of the tort of negligence and defences in different business
situations using the scenarios 5 and 6 given below
Business scenario- 5
A UK ship was taking the oil in the Sydney harbor. Oil was spilled in to the water and which
was spread out the wharf 200 yards away where the welding work is in use. The wharf owner
advised that oil was spread all over the ship and due to the sparks of eth welding work the fire is
set in to it due to the furnace oil but he ignore that statement and doing continue his welding
works. One sparkle came out from his welding work and it feel down on the cotton which was
fully floated in the furnace oil and the fire is set in to it.
On analyzing the facts of the business scenario I find that Uk ship chatterers gives advice to the
wharf owner that not do the welding work. The furnace oil was spilled out and it spread all over
the ship. There is neglecting the duty of care is existed. But wharf owner is neglect the statement
and continuing doing his work as he knowing the remoteness of the damages, if any spark fall on
the cotton it will be fired on. So based on my analysing wharf owner cannot claim the damages
which is suffers because there is the existence of the contributory negligence.
Contributory negligence is that in which the liability of the defendant is becomes less. The
claimant cannot recover the full damages which he suffered because he is also liable for the act.
The compensation of the plaintiff is reduced. So actual finding is that Uk ship owner is not held
liable for the compensation of the wharf owner.
Business scenario- 6
In this business scenario the bell is the worker of the shell which has one bad eye. The bell
performs his duty and normally there is no need to us eth protective goggles at the time of the
work because the risk of injury in the eye is very minimum. But at one day in the course of his
employment he suffered blindness due to the chip flew in his eye. It is the duty of the employer
that protects the employee and shell is under the employer duty that he has to protect the bell.
So as my observation shell is liable for the blindness for the bell because he is the employer and
according to the health and safety at work etc 1974 act employer is held responsible for the
health and safety of the worker. But he did not take the necessary steps for the protection of his
employees so he is responsible for the bell. And bell is compensated by the shell.
P4.2 Apply the elements of vicarious liability in given business situations given in the
business scenarios 7 and 8 below.
Business scenario 7
There is safe care home ltd which is run by the Alf the employee of the safe care homes ltd. He is
taking care of the vulnerable children’s all around the London. But he was doing the sexual
harassment with the boys. And safe care homes is not even knew about that Alf made sexual
harassment during the course of the employment , the parents of the vulnerable children came to
know about that and they file suit against both Safe Care ltd and the employee Alf.
Under the vicarious liability the employer is held responsible for the act which is done by the
employee but it duty which is given by the employer to employee. So in this Alf and the safe
care ltd have the employer and employee relationship. But the safe care did not give the duty for
the sexual harassment to the Alf they only gives the duty to taking care of the vulnerable children
t he made the sexual harassment with the boys. The act which is committed by him is not in
accordance with the duty which is obliged on him.
So Alf is held liable for the said act but safe care is not liable which also decided under the Smith
V Crossley Bros Ltd, 1951
Business scenario- 8
In this business scenario on the Amos Bridge is the employee who is working at the petrol pump
of the AB and Sons Garage Ltd. Employee felt that the one of the customer Mr. Alex Kahn will
run away without paying the money of the diesel. After sometime there discussion is becomes
long heated discussion and Alex said that he was no intention of run away and he was
disrespected by them.. And Amos bridge told to his owner that they were sued by him. At this
Amos get angry and hit the Alex. He decided to file suit against the both employer and
employee.
So there is relationship between the employer and employee relationship is existed between them
pump attended is the under the liability to take the money from the customer after filled the
diesel so he is only performing his duty with the best interest. But Amos hit the Alex is not the
part of his duty. AB and Sons Garage Ltd is liable for the employee for the accusation he made
but they are not liable for the injury or loss he suffered to the customer. As decide under the
Hamlyn V John Houston And co. (1903)
Conclusion
This project has been analyse all the provisions of the concept of the contracts vicariously
liability different terms of contracts, and other. The business scenarios are also analyses and
solved with the help of the cases.
Refrences
Anon,(2015)[Accessed 13 july
2015].Availableat:http://www.uio.no/studier/emner/jus/jus/JUS5260/v12/
undervisningsmateriale/Terms.pdf
acas, (2015). Understanding what vicarious liability means for employers Accessed 1
July 2015].Available at: http://www.acas.org.uk/index.aspx?articleid=371
BusinessDictionary.com,. 'What Is Contract? Definition and Meaning'. N.p., 2015.
(Assessed 12 July 2015).
Blond, N. C., Petrillo, L., and Gruning, D. W. (2009). Contracts. Frederick, MD: Aspen
Publishers
Blond, N. C., Petrillo, L., and Gruning, D. W. (2009). Contracts. Frederick, MD: Aspen
Publishers
Collins, H. (1993). The law of contract. London: Butterworths.
Emanuel, S. (2012). Contracts. New York: Wolters Kluwer Law & Business.
E-lawresources.co.uk,. 'Duty Of Care'. N.p., 2015. Web. 14 July 2015
Findlaw,. 'Proving Fault: What Is Negligence? - Findlaw'. N.p., 2015. (Assessed 14 July
2015)
Lawson, R. G. (2005). Exclusion Clauses and Unfair Contract Terms. London: Sweet &
Maxwell
Lawhandbook.org.au,. 'Elements Of A Contract'. N.p., 2015. (Assessed 11 July 2015).
McKendrick, E. (2007). Contract law. Basingstoke: Palgrave Macmillan.
Riley, J. (2015). Contract - Express & Implied Terms. [Accessed 12 July . 2015].
Available at: http://www.tutor2u.net/law/notes/contract-express-implied-terms.htm
