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Published on March 9, 2014

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AN ASSIGNMENT ON ASPECT OF CONTRACTS AND NEGLIGENCE’S FOR THE BUSINESS SUBMITTED: NAME: ID: SUBMITTED TO: DATE OF SUBMISSION 1

EXECUTIVE SUMMARY Based on the analysis of the scenarios it can deduced that TAM‟s college is paying attention to become one of the best educational institutes in the Great Britain and they are hiring marketing agencies to look into their marketing and promotion programs. Established on the eventualities of the case the authority of TAM‟s college faced difficulties with their legal issues and they were sued against because of the vicarious liability doctrine and was legally liable to pay the staff compensation because of his loss. 2

TABLE OF CONTENTS Executive Summary ....................................................................................................................................... 2 Task 1 ............................................................................................................................................................ 4 1.1 Essential Elements of a Valid Contract ............................................................................................... 4 1.2 The Impact of Different types of Contract .......................................................................................... 5 1.3 Analysis of Terms in Contracts ............................................................................................................ 5 Task 2 ............................................................................................................................................................ 7 2.1 Application of the Elements of Contract ............................................................................................. 7 2.2 Application of the Law ........................................................................................................................ 8 2.3 Evaluation of the Effect of Different Terms ........................................................................................ 9 Task 3 .......................................................................................................................................................... 11 3.1 Contrasting Liability in Tort with Contractual Liability ..................................................................... 11 3.2 The Nature of Liability in Negligence ................................................................................................ 11 3.3 Vicarious Liability in business ........................................................................................................... 11 Task 4 .......................................................................................................................................................... 13 4.1 Application of the Tort of Negligence and Defences ........................................................................ 13 4.2 Application of Vicarious Liability....................................................................................................... 14 Conclusion ................................................................................................................................................... 15 References ................................................................................................................................................... 16 3

TASK 1 1.1 ESSENTIAL ELEMENTS OF A VALID CONTRACT There are six elements of valid contract. These elements are important in order to make a valid contract. The essential elements of a valid contract are given below i. Offer and Acceptance: In order to form valid contract an offer has to be made and it is the first step towards an agreement (Roberts, M. & Zahay, D. 2012). Followed by the offer the interested party has to accept upon the offer and thus form an agreement. ii. Lawful Consideration: An agreement lead to a contract when the person accepting the offer takes decision based on some lawful consideration (Hare, J. I. Clark. 2003). iii. Free Consent: To form a valid contract the two parties must provide their free consent, otherwise the contract will be considered as a void contract and it will be avoidable (Horton, C., 2012). iv. Formal Relation: Formal relation has to be present in order to make a valid contract (Myer, J. W. 1978). Any act of informal agreement cannot be considered as a formal contract. v. Writing and Registration: A formal contract has to be in written and registered by the government authority to make the contract valid (Hare, J. I. Clark. 2003). vi. Enforceable by Law: A valid contract is enforceable by law otherwise it will be considered as the event of breach of contract (Roberts, M. & Zahay, D. 2012). 4

1.2 THE IMPACT OF DIFFERENT TYPES OF CONTRACT There are many types of contracts that are; Contract under Seal: The customary technique of constructing a legitimate contract is that the sealing of the instrument that is enforceable (Hare, J. I. Clark. 2003). It is important to mark the document with numerous closures and therefore the parties are prone to settle for the outcomes of the affirmation once it is sealed. Express Contract: This contract is one among the many varieties of contracts. It is either in a written formation or it can even be within the oral pattern that is acknowledged to the body that focuses on the permission to periods (Myer, J. W. 1978). Implied Contact: In order to making a legitimate agreement free consent is important of the each party. However just in case of Implied Contract it will be thought-about as a legitimate agreement if one party does not provide free consent (Horton, C., 2012). This type of agreements takes place once an individual imagines possessing any assets and selling it. Unconscionable Contact: It is an agreement in which both parties are concern about the agreement but one party gets the higher advantages than the other (Roberts, M. & Zahay, D. 2012). This kind of contracts is unenforceable because there is lack of free permission from one of the party. 1.3 ANALYSIS OF TERMS IN CONTRACTS A contract has various objectives that need to be fulfilled. It is important for the parties to understand the various forms of agreements, terms, elements, and clues that will not solely assists the parties to accommodates the agreement, however additionally assists to weaken agreement administration charges (Collins, Hugh. 1999). The TAM‟s college is attempting to become one amongst the high quality educational institutes in United Kingdom of Great Britain. So, they are endeavoring to capture the vigilance and hiring agencies and lawful advisors to assist them to the search of becoming the best. In alignment to become the best they are going into contracts with some agencies for commercialism and explaining the legal problems. To pattern a legitimate agreement there ought to be some 5

dissimilarity amidst the exchanging of periods, considerations and talks of the parties and TAM‟s is endeavoring to convey the dissimilarities. 6

TASK 2 2.1 APPLICATION OF THE ELEMENTS OF CONTRACT A valid contract is enforceable by guideline. The parties should respect the terms and scenario of the contract and if one party or the opposite party disagrees from the promise of affirmation then the party compliance the affirmation will be able to take legal actions (Marsh, P.D.V. 2001). The basic elements of the contract with NAMS are: Figure: Basic Elements of Valid Contract TAM‟s college liked to take their reputation high and help them to become one of the best educational organizations in the UK. That is why NAMS offered for intensive promotion for one month to help TAM‟s in their journey. In a prescribed legitimate agreement offer is the initiation of an affirmation with another party and types an enterprise relationship. In order to form a genuine affirmation the terms and scenarios of the contract should be acknowledged by the parties collaborating in an agreement, else it will be thought as a void agreement. TAM‟s college has acknowledged the NAMS mercantilism offer for one month and 7

paid the fee of £2500 in advance and went into in to a legitimate contract. Each of the parties within the agreement entered into the agreement with free permission and in a writing documentation turned the consent a prescribed relation TAM‟s college has taken lawful actions against the NAMS marketing agency because they were incapable of delivering the proper marketing promised that they offered initially. TAM‟s has proof of the breach of contract and NAMS has broken the contract and their initial statement 2.2 APPLICATION OF THE LAW Perspective of the parties might contradict from the affirmation that was likely to be in use as easily a pre-declaration of the legitimate affirmation and consequently not a part of the affirmation (DiMatteo, L. A. 1998). Significant parts that are crucial to the agreement need to be punctual in alignment to make a valid contract (Marsh, P.D.V. 2001). Parties to an agreement pursue solely its terms, not by any minor affirmations that will not be accomplished. To form a valid contract certain requirements are needed. Such as; Collateral Contracts •It is one kind of contract in which the terms and conditions are normally written as the basis of the contract. Where the statement have been created and intended as to make sure to induce the main contract (DiMatteo, L. A. 1998). Judges have been organized to find a security convention someplace to make the contract valid and beneficial for the parties agreed upon the contract. Contract Includes Conditions and Warranties •The more imperative terms are describing "Circumstances", the smaller amount significant terms are called "Warranties”. These parts are so important that in absence of any one or supplementary of the parties would not go into the indenture. As a result, to construct a circumstance falsely, or to breach a condition, is viewed so dangerously and considered as a mistreated agreement. (DiMatteo, L. A. 1998) The indenture itself provides motivation to the both parties. The court looks at each case on its own merits. Figure: Requirements of a Valid Contract 8

Exclusion of responsibility of the terms: Contract can be made where other organizations are probable to have a term in the agreement which excludes one of the party‟s accountability that may go wrong in the presentation of the agreement or restrictions on that accountability. It is called a “PROHIBITING PARAGRAPH” or a release clause (DiMatteo, L. A. 1998). Based on the scenario, a prohibiting clause from “RESPONSIBILITY” for spoil done to the TAM‟s marketing campaign by NAMS might be included in the agreement between NAMS and TAM‟s college. 2.3 EVALUATION OF THE EFFECT OF DIFFERENT TERMS These are the formation of affirmation and it is absolutely vital to be in an exceedingly in writing and also the closed is needed to line up. Some periods are enclosed inside the agreements and a couple of of them are just for formalities (Okeke, C.N. 1988). The Patrol Evidences Rule It is a role that includes oral evidences. Oral evidence may not be adduced to adjoin to say that the opposite to or shown to be a bogus written article (Okeke, C.N. 1988). The contract always tries to the law of confirmation and applies not only to contracts but also all kinds of credentials. Establishing Implied Terms There are some situations in which contracts need to establish the implied terms formally and it is made from one person to another person (Okeke, C.N. 1988). Various Types of Conditions Various types of conditions may affect the contract and technical judiciousness of the word is a good amount of central grouping of contractual expression (Okeke, C.N. 1988). The preparation for committing a breach of circumstance at universal law is refutation and indemnity. Figure: Effect of Different Terms 9

The Up-To-The-Minute Observation The parties are enabling to compel to the activities and performance (Marsh, P.D.V. 2001). The violation of a circumstance allows the above misgiving gathering to reckless spending the indenture as rejected. TAM‟s college has agreed to provide the marketing contract to NAMS based on their oral evidence of intense marketing program for one month only for £6000 and established an inferred agreement between TAM‟s college and NAMS. 10

TASK 3 3.1 CONTRASTING LIABILITY IN TORT WITH CONTRACTUAL LIABILITY Tort and contact liability: The guideline of tort and of agreement is categorized as part of the "Law of Obligations", but the law of tort concerns to every person that it is applicable to, while in the guideline of affirmation or in trusts obligation is "Voluntarily presumed" (DiMatteo, L. A. 1998). Agreement damages are founded on deficiencies that are anticipated, while tort damages are compensatory. 3.2 THE NATURE OF LIABILITY IN NEGLIGENCE 1. DUTY: The duty is an obligation of one person to another person and the glue of communal obligation is that the beam that binds humans to one another in groups while preferences are proposed unsuitable, if they deny a pre-existing impulse and improves heedlessly (DiMatteo, L. A. 1998). 2. Breach of Contract: Breach of contract is considered as the behaviour of an individual who is irresponsible and not considering the terms and conditions of the contract. It is an important factor inside the affirmation misconduct of negligence (DiMatteo, L. A. 1998). This component suggests the pre-existence of a benchmark of correct manner to bypass applying undue hazards of impairment to persons. In the case we can see that NAMS has broken the agreement terms and their initial terms of performing the program for straight one month by stopping the program in the middle due to money. 3.3 VICARIOUS LIABILITY IN BUSINESS Vicarious blame implies that anyone can be detained lawfully to accuse for the inattentive activities of a decisive one-by-one even in spite of the detail that the suspect swamps no error in furtherance of the inattentive or tortuous activities (DiMatteo, L. A. 1998).In the English doctrine of tort negligence law boss can be suspect for the wrongdoings of the workers. Usually, a supervisor is going to be command chargeable for any tort finished while an worker is bearing out their obligations (Chen L., Law S. and Lee S. 2003). 11

The TAM‟s college fell inside the English doctrine of vicarious liability be obliged to the night guard‟s family has taken lawful activities against the association. Though the supervisors were notified regarding the misfortunes and were also projected to wear proper attire for the nonteaching staffs to avoid injuries. The night guard of TAM‟s college who got injured did not pay attention to the organization‟s principles and so that, the authority rejected the payment of reimbursement to the casualty although the authority of TAM‟s college are compelled to pay the reimbursement ascribed to the conviction of vicarious liability. 12

TASK 4 4.1 APPLICATION OF THE TORT OF NEGLIGENCE AND DEFENCES There are some elements of the tort negligence and defences in various business situations, they are given below Tort Negligence Law: It is a variety of rule all through that it will be maintained and functioned inside the area of intentional wrongdoing of law and furthermore the reason for negligence guideline, is to organize and defend the employees from cuts affiliated to their line (Leibee, B. C. 1976). TAM‟s college‟s non-teaching employees were advised to use proper uniform for his or her security. Sources of Negligence: It is the unintentional shatter of a lawful obligation starting impairment fairly predictable while not that the shatter would have not occurred (John W. 2009). Negligence is going to be notable as malfunction to desire correct care of precaution. Potential sources of negligence • Poor selection of activities • Use of faulty equipment • Inadequate protection Defence against Negligence • Assumption of risk • Sudden emergency • An act of God Figure: Sources of Negligence Potential sources of negligence are: Inadequate protection: Inadequate protection refers to negligent behaviour on part of the person who is unwilling to wear protective gears (John W. 2009). 13

Poor selection of activities: The activities that are beyond the capabilities of individuals or inadequate knowledge of activities are poor selection of activities (Emenike, E.U.I. 1989). Use of faulty equipment: Another potential source of negligence is the use of faulty equipment which can cause harm (John W. 2009). Defence against Negligence: Sudden emergency: Any act of immediate action to help the person in danger. Such as, attempt to rescue a person drowning in the water is an act of sudden emergency (Emenike, E.U.I. 1989). An act of God: The conditions or situations that is uncontrollable by human beings. This assumption is only applicable when adequate safety measures are taken to avoid injuries (John W. 2009). Duty of Care: Someone might owe a compulsion of care to conceive compelled that they are not bearing from any awkward wound (Leibee, B. C. 1976). If such obligation is broken, a lawful liability is enforced. TAM‟s college staffs were alerted in quotation to the damage and deficiency that the employees might face. 4.2 APPLICATION OF VICARIOUS LIABILITY TAM‟s college management has made compulsory of wearing the proper attire for college‟s nonteaching staffs to avoid accidents. But the supervisors denied the alert associated with the misfortunes because of not wearing the right apparel. The management of TAM‟s college was held liable for the staff‟s accident because they fell in the English doctrine of “Vicarious Liability”. Although, vicarious responsibility means any person can be detained lawfully to blame for the inattentive activities of the employee. The TAM‟s college authority has denied the claim because the staffs were not following the policies and instruction of wearing proper uniform during duty. Though it was the staff‟s fault that he got injured the TAM‟s college has to pay the compensation due to the English doctrine of vicarious liability. 14

CONCLUSION In alignment to accomplishing the goal they were appointing legal advisors to defend themselves from the long-term risks. In order to pursue this objective they were going along with the agencies for legal and advertising help to increase their college reputation. TAM‟s college required advertisements and NAMS had the concepts that will be utilised for the comprehensive advertising program. TAM‟s college was susceptible to reimburse an employee as a result of the employee has caught in an accident all through the work hours. Though the management of the TAM‟s college had to face lawful undertakings attached to with the incidence with the worker that fell in the English doctrine of “Vicarious Liability”. 15

REFERENCES Collins, Hugh. 1999. Regulating Contracts. New York: Oxford Univ. Press. DiMatteo, L. A. 1998. Contract Theory: The Evolution of Contractual Intent. East Lansing: Michigan State Univ. Press. Emenike, E.U.I. (1989). Safety Measures associated with Physical and Health Education Journals. Vol. 3, No. 1, vol. 48, no. 1, pp. 54-82. Hare, J. I. Clark. 2003. The Law of Contracts. Clark, N.J.: Law book Exchange. Horton, C., 2012. Legal aspects in Business and Contractual Intent, Journals. Vol. 2, pp. 54-82. John W. (2009) „Business contract and negligence in practice‟ Journal, Vol. 7, No. 3, pp. 5-18 Leibee, B. C. (1976). Tort Liability for Injuries to employees. Organisation and Administration. Philadelphia W.B. Saunders Company Journal Of Tort Law ,vol. 18, no. 1, p. 1. Marsh, P.D.V. 2001. Contract Negotiation Handbook: Burlington, Vt: Gower Myer, J. W. 1978. “Negligence in Contract and practice”, Delhi: Prentice Hall of India, 3rd edition. Okeke, C.N. (1988). Some Legal aspects of Organizations. A paper presented at a two day conference organized by the National Sports Commission, Enugu, vol. 13, no. 5, pp. 707719. Roberts, M. & Zahay, D. 2012, Laws and Regulation in practice in Business, 6th Edition, Wadsworth Publishing Co, Belmont, USA. 16

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