This assignment is discussing about the aspects of contract law, and negligence by applying to the different practical scenario. According to that in the first part of the assignment is discussing about the essential elements, terms & conditions of a valid contract. In the second part, the elements, terms and conditions are identified in the section one has been applied to the current business situations & practical life. In third part, tort liability, negligence of tots and contractual liability is discussed. And section four this theories were in section two applied or theory mode. And at the finale, merit and distinctions part have been answered.
Contract is an agreement which binds the parties legally. According to the Contract Law UK, (1872), essential four elements of a valid contract are and the absence of each is disqualified the considering it as the valid contract by law.
According to the law the parties are involved in the contract should have legal capacity for that. According to that, minors, insane (psychological disorders) people, bankrupt people accepted under a judgement, and drunken people are considered as the parties who cannot engage in a valid contract by law. According to law, a contract with legally incapacity person is considered as the void contract.
According to law to form a valid contract it is essential to communicate the acceptance by verbal, written or implication (Carlill v Carbolic Smoke Ball Company, 1892). Mere silence is not considered as the valid acceptance (Felt House Vs Bindly, 1862). And also according to case law Hyde v Wrench, (1840), counter offer also is not considered as the valid contract. There have several types of contracts such as verbal, written, on-line and contracts by deed. According to the UK law, verbal agreements are valid only for the telephone or other verbal exchange for obtaining a service. But regarding sale of property, tenancy agreements, copyright transfer, and contracts for consumer credit it is essential to use written agreement is selling goods under the law. The online agreements are become a valid contract in sales once the customer sees physically products (Consumer Protection Regulations, 2000).
And the other way there have void contracts and voidable contracts. The contract is no legal rights or obligations on the parties or no enforceable by law to execute. The case law Cundy v Lindsay (1877), Blenkiron named thief took an order for selling handkerchiefs on the name of Blenkiron named company and after that the thief left with the goods without paying money. The supplier sued against the company and court has decided there have no valid contract to be executed because it is void at the beginning of it since its purpose is not legal.
And the voidable contracts are the contracts which are accepted by law as reasonable about its incompletion. According to the law the contracts are having the parties with a minor in one side is a voidable because the minors are not allowed and considered as the parties who have no capacity to bind a legal relationship.
All the statements are important to contract should be either term or representation. Terms are two types. Conditions or warranties are two natures of the terms of the contract. According to the law the statements and clauses which are directly connected to the ultimate purpose of the contract are considered as terms and the mere statements in the offer are considered as representations. Case law Bettini vs. Gye, (1876), says breaching of a term of the contract is considered as the breaching of the contract.
Conditions are the most important terms which are extended up to the beginning of it and warranties are only less important terms having no connection with the begging and no impact to the end purpose if it was unexecuted. Conditions are in the initial offer which is persuading the offeree to accept the agreement and warranties are later additions to the contract with the purpose of supporting to conditions to achieve main purpose of the contract.
In case law Bettini vs. Gye, (1876), Bettini agreed not to sing anywhere within fifty miles of London except at the Royal Italian Opera. He couldn’t come to the show before 6 days for rehearsals but came for the show on time. Gye refused him to perform and court decided his participation for the rehearsals has no connection with the end purpose or to enter in too this agreement. Therefore, it is warranty and Gay has breached the contract by taking a new person to the show. Breaching of a warrant has not allowed terminating the contract.
Poussard v Spiers, (1876), Mrs. Poussard couldn’t come for the first three days of the show due to ill and Spiers replaced Miss Lewis for Poussard. Mr. Poussard sued and judgement decided it is reasonable to replace another because it breaches a condition of the contract and Mrs. Poussard has to pay loss of hiring new member due to her inability to participate for the show.
Exclusions are inserted to the agreement when the parties in the agreement needed to mislead their main responsibility. Case law L’Estrange v Graucob, (1934) states when there has been accepted exclusions under a written agreement, whether it is seen or not parties cannot right for claim for breaching of exclusion. But, Contract law UK, (1872), states, when there has exclusions, there would be suggested some alternative remedies for them. Under the contract law, Andy’s right to claim for bike is not effective. But under the Unfair Contract Terms Act, (1977), Andy is eligible to claim for breaching of exclusions. Because it is unfair to exclude their main liability from the service agreement and it was intentional mislead of the possible main liability from the service agreement. Therefore, according to the law Andy can sue against shop owner to claim for the loss and the exception clause is not valid.
In such cases the court could delay deciding whether an event is a breach of condition or warranty until the extent of the damage is known (Hong Kong Fir Shipping Co Ltd v Kawasaki Kisa Kaisha Ltd, 1962).
Both tort law and contract law are main parts of civil law. According to the Tort law UK, (1977), it is the body with rights, obligations, and remedies are imposed by the court law on civil to provide reinforcement for people who have affected by the wrongful acts of the other party in the society. The person who was affected by physical or financial damages as the outcome of breaching of tort liability is considered as the plaintiff and the persona who responsible for that is known as defendant. Therefore, according to the case law Electro chrome v Welsh Plastics (1968) liability of in the tort law arises due to wrong and damage by ones on other. Mainly tort law is discussing about the impact of or liability arises due to once activities on other one in the society. It is volunteer liability arises in everyone in the society. As in the section 02 question, car seller should be complied with the environmental law of the country.
According to contract law, liability is arisen in the contract law between the parties of it. Contractual liability is the liability occurred on each other when the binding two parties legally. In the contractual law accountability for execution of terms and conditions of the contract are considered as the liability of the contract. It is clearly expressed liability by the parties of the contract on each other. Case law Bettini vs. Gye, (1876), says the liability of the contract is execution of the terms and conditions of it. Therefore both parties have a liability to perform the terms and conditions of the contract.
In law negligence is considered as non-performance, performing other or underperformance of the liability is arisen (Wets and Lewis, 2009). According to the contract law, negligence is considered as breaching of terms and conditions of the contract. And according to tort law negligence is arisen due to neglect the volunteer liability. According to case law, Donoghue Vs Stevenson, (1932), the consumer bought a beer can and at the bottom there were a snail. The consumer was seriously ill, hospitalised and affected with flu (fever) and vomiting. The customer sued against manufacturer and the court decided a manufacturer has a liability of his products on the customer. The customer’s ill healthiness has been occurred due to having beer and thee beer was not in the proper quality and because of that manufacturer’s duty of care was breached. And as a result of that it became a proximate cause of harming the customer.
The manufacturer has a liability on its customers due to consuming their products and it is unexpressed volunteer liability of the manufacturer on the customer to protect them if they face to the damages which arises on tort liability.
Vicarious liability comes under the tort law of the civil law. It simply means unexpressed mandatory volunteer liability of one party on other party in the society. It cannot define but a business can vicariously liable mainly by four ways as follows.
According to the case law L’Estrange v Graucob, (1934), when available exclusions have been accepted by the parties in the agreement under a written agreement, whether it is seen or not by the other party, exclusion is valid and cannot claim by breaching of it. But contract law has imposed when there have exclusions it is essential to propose alternative remedies for those exclusions. It is mandatory bay the law. When there have alternatives in the agreement, excisions are valid to the agreement and or the other party has a right to claim under the Unfair Contract Terms Act, (1977) for the damages were happened. According to the law, when the exclusions are available the liable party is subjected to pay damages maximum under the available alternatives or under the court decision according to Unfair Contract Terms Act. If not exclusions are not valid for the agreement. And when there have no written agreement, exclusions are not valid.
It is strict or absolute liability stands for, liability which may exist in either a criminal or civil context, is arisen the liability under the activities in tort. It means the legal responsibility is arisen on the injuries, damages or losses on the parties due to negligence. Manufacturer should liable on the product have been supplied to the customers (product liability). Employer liable on the damages are happened by the employees to their party (employee liability), are some of the examples for strict liability. According to case law Rylands v Fletcher, (1868),
To: William Brown
Employer is vicariously liable for the works are done by the employees. According to case law Hewitt v Bonvin, (1940), employer is liable for the works are done by the employees when;
But in law though;
; the employer is not liable for the harms, injuries and damages are happened to employees.
Implied terms are not well expressed but the parties in the agreement know about those by implications or it is derived from other law to the contractual agreement. Neither party can be free from by breaching the implied terms by expressing unawareness about them. When the people are entering in to a sales contract, the implied terms are transferred from the Sale of Goods Act, (1979), are;
According to Hutton v Warren, (1836), according to the custom of the country farm tenant should give a reasonable allowance to the landlord. Though this allowance has not in the land rent agreement it is implied term in the contract by the common customs of the country.
According to case law Liverpool City Council v Irwin, (1977), Mr. & Mrs. Irwin was not willing to pay rent at the flat to the council due to vandalise the common parts of the building including lift, stair lights, chute and lavatory cisterns. The court decided those facilities are implied terms of the rent agreement and therefore it is reasonable to neglect the rent payment by tenants.
Both cases are explained same impact to the asset and human body can be happened by breaching the tort liability of each other.
According to the Tort law UK, liability for economic losses is defined as the damages or losses are happened to a party in the society due to work on other party and that damage can be clearly measured by the financial terms. As an example, a tourist hotel has lost its seasonal demand due to cutting trees of the forest by a manufacturer and when it cuts the main power cable to the hotel and because of that it ruins tourist demand of the hotel. The liability of this economic loss to the hotel is arisen on the manufacturer under the tort liability and then if it is insured, manufacturer can claim it from the insurance company.
According to tort law UK, liability for nervous shock is defined as the recognisable and severe physical damages are happened to the physical body, mind and internal system due to the sense of external event to the mind. This situation should be proofed by the medical assessment to the court and it can be proofed that the nervous shock was happened due to other party would be clear. In the case law Rhodes v Canadian National Railway, (1991), judge says the situation of affecting inside of a person due to killing or suiciding their beloved ones is medically accepted as the nervous shock. And the proximate cause for this internal shock should definitely be the deprivation of beloved one. And the other way, if one party’s activity will be become the proximate cause for being mentally affected third party person, it calls as nervous shock.
Promissory Estoppel is a term of used in the contract law and if it may not be an enforceable contract, it is not inequitable to enforce to a party when the other party has relied on the promise of one party. In the contract law set of guidelines has been provided that if a party changes their position substantially either by acting or long-suffering from acting in confidence upon a unwarranted promise, then that party can put into effect the promise even if the essential elements of a contract are not present.
Felt House Vs Bindly, (1862)
Carlill v Carbolic Smoke Ball Company, (1892)
Hyde v Wrench, (1840)
Consumer Protection Regulations, (2000)
Bettini vs. Gye, (1876)
Poussard v Spiers, (1876)
Fisher v Bell, (1961)
Contract law, (1872), UK
L’Estrange v Graucob, (1934)
Unfair Contract Terms Act, (1977)
Hong Kong Fir Shipping Co Ltd v Kawasaki Kisa Kaisha Ltd, (1962)
West, G.D and Lewis, W.B., (2009), Contracting to Avoid Extra-Contractual Liability—Can Your Contractual Deal Ever Really Be the “Entire” Deal, The Business Lawyer, Vol. 64, pg. 999-1038
Tort law, (1977), UK
Hewitt v. Bonvin, (1940)
Donoghue Vs Stevenson, (1932)
Environmental Protection Act, (1990), UK
Carroll v Fearon, (1999)
Winterbottom v Wright, (1842)
Kohlmayer v. Keller, (1970)
Ricketts v Thomas Tilling, (1915)
Sale of Goods Act, (1979)
Philips Electronique Grand Public SA v British Sky Broadcasting Ltd, (1995)
Hutton v Warren, (1836)
Liverpool City Council v Irwin, (1977)
Rhodes v Canadian National Railway, (1991)