Aspect of Contract and Negligence for Business
Introduction:
LO 1
AC1.1Explanation of the
importance of the essential elements for formatting a valid contract:
AC 1.2Discussing the impact of
various kinds of contract:
AC 1.3 Analysis of the terms in
contract with their meaning and effects:
In this below, analysis of the
different terms in contract with their meaning and effects:
LO2
AC 2.1 Application of the
elements of contract in given business scenarios:
AC 2.2 Application
of the law on
terms in different contracts through explanation of the following terms:
AC 2.3 Evaluate the different
terms of law and exemption clause in contracts:
LO3
AC 3.1 Contract liability in tort
with contractual liability:
AC 3.2 Explanation of the nature
of liability in negligence:
AC 3.3Explain how a business can
be vicarious liable:
LO4
AC 4.1 Application of the elements
of the tort of negligence and defenses in different business situation:
4.2 Application of the elements
of vicarious liability in given business situations:
Conclusion:
References
Introduction:
Aspect
of contract and negligence for business is very effective to providing contract
for the organization. It is very important to understand the legal aspects in
business for any organization. For this reason, administrating and preparing contact
make a major part in business. The important aspects of business law like
contract law, liability of negligence, vicarious liability, terms and
applications of law on real business scenery is of great importance. As a legal
advisor, I tried to provide my client with proper solutions to problems stated.
LO 1
AC1.1Explanation of the importance of the essential elements for
formatting a valid contract:
Various kinds
of essential elements and their importance are explained below:
Offer: Offer is
the main element that requirement for formation of a valid contract. An offer
is an aspect of preparation to do something which it followed by the pure
acceptance of another person. For instance, if a business company says to
individual person that sell 150 boxes of apple at the price of 5000 dollars
that this company is making an offer. The customer can accept it or ignore it. So,
any kinds of contract cannot take without offer. First of all there has to be offer from one party to form a
contract. An offer will come with the specific conditions and configurations.
Without an offer from one party, the agreement cannot proceed further. For
example, X proposed to Y to buy his which will be sold. It is an offer from X (Singh, 2010). In the case of Harvey and Facey (1893) the terms and conditions of a valid
offer and acceptance are explained.
Acceptance: This is the
process of recognition by the other people or the parties to finish the
agreement. In this procedure, the customer can take the offer from the seller
and accept the proper price of the product. The offer has to be accepted by the other party. The other
party understands all the conditions associated with the offer and either
accepts or rejects it. With an acceptance, an agreement goes to the subsequent
stages. For example, in the previous example, if Y consists to buy the car, Y
makes an acceptance. The case of Entorres vs Far East (1995) can be
stated here to explain the conditions of acceptance.
Consideration:
Consideration may be defined as an
exchange between the parties. Both the parties in the contract must get
something of value in return from each other (Singh,
2010). Consideration has to be availed by both the parties. The case
of Anglia
Television Ltd. Vs Reed (1971) can be stated to explain the conditions
of a valid consideration. In every contract, consideration makes the foundation
between the both parties. So, a contract can be useless without the
consideration.
Capacity
of Parties:
This is the
vital task to work the parties with an agreement that must be legal and able to
entering into an agreement. Ex:A minor cannot enter into a contract. The
case of Mohori Bibi vs Dharmodas
Ghose explains that contract with a person who is legally not capable
to make a contract is void.
Consent:
An agreement
must be based on the free consent of the all parties in order to enforce the
law. When the agreement is indeed by coercion the genuine consent must be
absence and it influence by the other parties (Singh,
2010).Ex:‘P’ threatens to shoot ‘Q’ if he does not let
out his house to ‘P’, and ‘Q’ agrees to do so. The agreement has been brought
about the coercion. The case of Slorach
and Ellis (2007) can be stated here.
These
essential elements are necessary for forming a valid contract.
AC 1.2Discussing the impact of
various kinds of contract:
The ultimate impact of the various
kinds of contract is discussed below in great extent.
Written Contract and Verbal Contract:
Written contract is a document that may
be printed or written format. In this contract, both parties are signatures in
it to make an agreement (Morgan, 2012).
Verbal contract is not same as written
contract. It is not use the print or written version of the purpose of
agreement.The case of Henningsen v Bloomfild Motors Inc. (1960)
can be stated here to describe the form of contract.
Bilateral Contract
and Unteral Contract:
Bilateral contract is a contract that
makes an agreement between two parties. In this contract, both parties are
responsible and aware of their duty and performance. On the other side,
unilateral contract is a contract that makes an agreement only one party. In
this contract, the offeror party must be liable for the responsibility (Morgan, 2012). To explain the rules and
consequences of bilateral contract, the case Drennan v Star Paving Co. (1958)
can be stated.
Distance selling and face to face
contract:
At the matter of the face to face to
contract, both the seller and Buyer must be present in the selling point and hand
to hand payment the goods. Distance selling contract can be complete two ways. First,
the seller can parcel the gods to the customer address then the customer paid
this bill. Second, the buyer can send money to the seller then the seller sends
the goods to the buyers address (Morgan, 2012).
Contract
under Seal (deed) and Simple contract:
In
the contract under seal (Dead), no need of consideration due to the signature between
two parties. A deed requires additional formalities in relation to its
execution for it to be enforceable. A deed must ensure the clearness that it is
intended to be a deed and it also must in writing process. On the other hand, Simple
contract cane formatted both in orally or written. There are six years of
limitation period in a simple contract.
Void
Contract and Voidable Contract: A void contract cannot be enforceable. This contract is
absent and cannot be upheld by any law. Subsequently illegally or impossibly of
any act which is to be performed in the future. On the other hand, a voidable
contract us an existing contract and binding to at least one party included in
the contract. This contract is valid until the party whose consent is not free
and does not revokes it.
AC 1.3 Analysis of the terms in
contract with their meaning and effects:
In this below, analysis of the different terms in contract with their
meaning and effects:
Express Terms:
According to Plimpton (2007) it is the term that makes a relationship
between two parties and the contract happened by the written or verbal system.
Both parties are agreeing with the contract. The effect of this term can agree
that both of the parties are fulfill the condition of this agreement.
Implied Terms:
This is the term that not the same of
express terms. This term cannot agree or mentioned the contract of the parties.
As well as it cannot understand the commercial sense. Implied term enlarges
with no written or verbal agreement and it relation with the court. The case of
Foleyv
Classique Limited (1953) can be stated to explain expressed and implied
terms.
Condition:
It deals with the implement of the both
parties of their duty, rights, condition, responsibility and law with the contract
(Plimpton,2007).
Warranty:
This is mainly about providing some
assurance given from the company on some specific products or services. The
assurance may the compensation will be given in case of any kind of harm
towards the products within specific time.
LO2
AC 2.1 Application of the
elements of contract in given business scenarios:
Offer
and acceptance:
Offering is the essential and prime
element for being any kind of contract to be valid. There should be strong
existence of offer and along with that there should also be acceptance in
contract by the parties highly. But in the scenario there was no offer from
Todor to sell the book to Ivan although Ivan was ready to pay for the book(Levien, 2012). . Due to the lack of an Offer, it
cannot be a contract.
Intensions
to create legal relations:
The scenario lacks the motive to create a legal relation between them; as the
Seller intends not to sell a book as he already sold it to someone else.
Free
consent:
The presence of free consent is also
very important element in contract. If the parties do not consent willingly to
the contract to be formed legally, the free consent is must and mandatory (Slorach
and Ellis, 2007)
On the contrary according to the case,
Todor did not comply with Ivan to enter into a contract for buying and selling
(Levien, 2012).
AC 2.2 Application of the law on
terms in different contracts through explanation of the following terms:
Various kinds of laws can be applied in
this case. The laws can be the Sale of Goods Act 1977. It can be highly applied
to the case of the Ivan and Todor’s Bookshop. The things are illustrated below:
Depending on the circumstances Ivan can
want a claim under the Sale goods Act, 1977 that he has some possible ways of
resolving the issue. It is very wrong activities from the bookshop owner that
he cannot remove the book after selling this from other person.
Condition:
A condition is a basic term and goes to
the heart of a contract. When a condition id breached the clean party is
entitled to end the contract and claim for the damages. Condition is the mandatory thing to make a
thing contract. In any kind of contract there are so many terms and conditions
under which every party is to be regulated (Union Trust CO.1904)
Warranty:
A warranty is a promise that given by
the seller to the customer about the statement for this goods. In a contract,
there are various types of terms with condition being more than warranties. On
the basis of the above mentioned law, if the conditions are alive then the
company authority must give compensation. In this case the sufferer can
strongly claim against the company (Stephenson,
2011). To explain the importance of warranty, the case of Bettini
vGye (1876) can be stated.
Innominate term:
This term
refers which can be crushed will complex consequences. By this term, where the
remedy for breach will depend on the influence of that breach at the time it
happens. By this way;
if the victim party can show the strong proof of the damage then they can be able
to make the end of the contract. In this case the defendant will be liable. The
conditions and rules of innominate terms can be explained by the case of Lombard
North Central v Butterworth (1987).
AC 2.3 Evaluate the different
terms of law and exemption clause in contracts:
Here is the contract between John and
the park authority where some exclusion clauses which deprived john of certain
rights that he would be upon not performance of certain by the park authority. Following
the case, John was several injured in an accident by the chair that collapse
under him and he injuring badly and damaging his clothes. But, John cannot get
any remedy from this accident. The authority would not be liable for any
accidents that would bring in the negligence of its customers.
The exclusion clause also described as
unfair as it important undermines the rights of John under the Unfair Contracts
Terms Act 1977 and the Unfair Terms in consumer contract regulation (Cottrell, 1986). A business cannot exclude the
liability of the personal injury or death that resulted from its negligence.
Here the exemption clause in contract becomes useless under the condition of
unfair terms and the part authority has to bear the liability of John.
It is evident from the scenario that,
when Mr. John made complaint and asked for compensation for his injury, the
attendant showed him a clear exemption clause as a notice written on the
ticket; hence, Mr. John cannot make a claim for compensation to the council.
LO3
AC 3.1 Contract liability in tort
with contractual liability:
The liability of Tort generally refers
to the notion of violating the rights of the party. In addition to contractual
liability refers to the arisen infringement of different kinds of rights of
different incidents or matters (Lawson and Smith,
1997).
In general views, tort liability are
the common law for business contract that apply for the civil wrong in
business. It is the legal demand of one party for damage their right. For duty
tort liability is forced by civil law. On the other hand contractual liability
is forced by only on the agreement of both parties because it means legal
obligations of one party victim and this injury system remedy (Lawson and Smith, 1997).
In contractual liability there must be
some privacy between parties and it is base of legal relations between parties.
On the contrary, the question of liability is very weak in case of tort
contract of liability.
AC 3.2 Explanation of the nature
of liability in negligence:
Here are the different types of nature
of liability in negligence explained in this below:
Duty of Care: Duty of Care generally refers to the
different circumstances and connection which the law observes as providing rise
to a proper duty to take care. The defendant must liable for the breach of
damages and also liable to the injury as a result of their breach in duty of
care. It is decided by a judge question of law in which the person would see
that a duty under an individual some kind of certain circumstances (Miles and Dowler, 2012).
Breach of duty:
This is about
the violation of the duty by the authority of the organization. In this case,
the care taker is liable in great extent for the cause of the negligence. A man
must liable for negligence in a individual injury reason for breach of duty
that caused other’s injury. Any violation of a legal or moral in a general
sense is to be breach of duty.
Damage
Caused:
The damages for the injury of the
person must be liable for breach of duty. This damage happened by the breach of
duty of care that reason to the damages. The claimant has to show that the breach
of the duty resulted in his damage (Miles and
Dowler, 2012). In the form of injury, the damage can take place and
harm to the resources.
AC 3.3Explain how a business can be
vicarious liable:
Vicarious liability is a situation in
which one party is held party responsible for the unlawful activities of a
third party. In this business, it one person will be able for the actions of
other parson (English, 1984). It can
arise in situations where one party is supposed to be responsible for a third
party and is negligent in carrying out that responsibility and exercising that
control. Here are, the first man can not include in this incident (Valles
v Albert EinsteinMedical Center, 2000) Employers are vicariously liable
for the torts of their employees that are committed during the course of
employment.
Vicarious liability can be creating a
legal relationship between two persons. For example, A and B are the two
persons. In this case, if the legal relationship between A and B does anything
right or wrong then A can be liable by the vicarious liability (English, 1984).
Where someone employs an
independent contractor to do work on his behalf he is not in the ordinary way
responsible for any tort committed by the contractor in the course of the
execution of the work:Alcock v Wraith [1991].
LO4
AC 4.1 Application of the elements of the tort of
negligence and defenses in different business situation:
It is the implied rule or duty of any person to not to harm anyone.
When an individual do so, the infringed can claim damage from the wrongdoer and
the negligence of perform the duty of not to harm anyone is known as tort of
negligence (Topp v London Country Bus, 1993)
Here
the liability of negligence is applicable for Mr. David. Because, according to
the law;
-Mr. David owes some sort of duty while
driving to the general public.
- Mr. David failed to honor that duty
as he drove his car at a higher speed than suggested one.
- Mr. David’s cannot achieve to meet his
responsibility that the resulted in death of Kevin, although David switched to
another lane in order to save Kevin and got injured, it weakly loosens his
liability of negligence (Kelly and Kelly, 2011).
4.2 Application of the elements
of vicarious liability in given business situations:
The vicarious liability can be
explained as the liability of one party toward another party due to specific
act they have done (Costa v Roxborough Memorial Hosp. 1998).Here are describe as,
Mr. Colin didn’t knock Mr. Roger intentionally. Although it is obvious that he
(Colin) developed some resentment against the activities and attitudes of Mr.
Roger.
As the matter of fact MR. Roger is able
to demand of vicarious liability with Regent Hotel for the action of Colin’s as
it is clearly mentioned that any sort of harassment, violent behavior or unfair
employment practices are worthy of claiming a vicarious liability against a
company(Clarke, 2013).
And alternatively, Mr. Roger can
directly sue Mr. Colin for his action in the court of justice for the injuries
done to him.
Conclusion:
Knowledge on laws not only provides the
firm with legal advices but also it helps firm to be aware of its rights and
duties to the public, society and environment in general. Contract law, Tort
law and other organizational laws are common on day to day business occasions,
and successful firms are always aware of the laws which exist and the
amendments made recent past.
References
Stephenson, G. (2011). Core statutes on commercial and
consumer law. Basingstoke: Palgrave Macmillan.
Clarke, M. (2013). Law of
liability insurance. Hoboken: Taylor and Francis.
Cottrell, R. (1986). Contract forms for business. Boulder, Colo.: Ogden Shepard Pub. Co.
Department for Business Innovation and Skills - Links and
data on consumer protection
English, R. (1984). Business contract forms.
New York: Wiley Law Publications.
Kelly, D. and Kelly, D. (2011). Business law.
Abingdon, Oxon: Routledge.
Lawson, R. and Smith, D. (1997). Business law. Oxford,
England: Butterworth-Heinemann.
Levien, D. (2012). The contract. London:
Bantam.
Miles, C. and Dowler, W. (2012). A guide to business law.
Pyrmont, N.S.W.: Thomson Reuters (Professional) Australia Limited.
Morgan, J. (2012). Business law. Redding,
CA: BVT Publishing.
Plimpton, L. (2007). Business
contracts. [Irvine, Calif.]: Entrepreneur Press.
Singh, A. (2010). Business
and contract law. London: Thorogood.
Websites
www.bailii.org/
British and Irish Legal Information
Institute - access to freely available British and Irish public legal
Information
www.hmso.gov.uk/acts/acts2001.htm Public Acts of the UK
Parliament
http://www.oft.gov.uk/ The Office of Fair Trading
-http://www.tradingstandards.gov.uk/
No comments:
Post a Comment