Ac 12

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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 TAM’s college hired legal advisors to fight the future risks associated with the institutes and also to make the principles that will hold the institute together. They have also hired a marketing agency to promote their name and help TAM’s college in becoming one of the reputed educational institutes in UK. The legal advisors at TAM’s college advised to the supervisors that all non-teaching staff should follow the dress code and perform their duties in proper uniform. But one of the non-teaching staff has ignored the instructions and got injured. The TAM’s college has the authority to deny the claim because the staff was not attentive to the instructions and did not follow the principles of the institute. Yet TAM’s college has fallen in the “Vicarious Liability” doctrine and bound to pay the compensation to the staff. 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 .................................................................................................................................... 16 References ..................................................................................................................................... 17 3

TASK 1 1.1 ESSENTIAL ELEMENTS OF A VALID CONTRACT Essential elements that guide the contract and the parties involved in the contract to perform their duties to the contract. There are eight elements of valid contract and 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 a legitimate contract an offer has to be made and it is the primary step within the direction of an affirmation (Black, H. C. 1979). Pursued by the interested party the other party has to accept the offer to make the contract valid. ii. Lawful Consideration: When the person accepting the offer takes conclusion on the basis of some lawful consideration (Marsh, P.D.V. 2001). iii. Free Consent: In an agreement the parties involved in the agreement must provide free consent otherwise the agreement will be considered as a void agreement (Hare, J. I. Clark. 2003). iv. Writing and Registration: A formal contract has to be in written and registered by the government authority to make the contract valid (Leibee, B. C. 1976). v. Formal Relation: Formal relation is must in order to form a valid contract. Any proceed of informal affirmation cannot be thought of as a proper agreement (Black, H. C. 1979). vi. Certainty: Certainty has to be present in the formation of a valid contract because if the elements of the contract are certain then the parties participating in the contract are able to realize the issues described in the contract (Leibee, B. C. 1976). vii. Possibility of Performance: A valid contract should have the possibility of performance because if the contract cannot perform the issues then it will not be considered as a contract (Hare, J. I. Clark. 2003). viii. Enforceable by Law: A valid contract is enforceable by law otherwise it will be considered as the event of breach of contract (Black, H. C. 1979). 4

1.2 THE IMPACT OF DIFFERENT TYPES OF CONTRACT The Impact of Different types of Contract There are many types of contracts that are;  Contract under Seal: To make a legitimate contract the lawful articles are have to be sealed so that they are enforceable by law (Hare, J. I. Clark. 2003). It is important to mark the article with diverse closures and the both parties are liable to accept the results of the affirmation after it is sealed.  Express Contract: It is one of the numerous kinds of contracts in which the formation is either in the formation of a written document or it can even be in the oral pattern which is acknowledged to the ruling body that focuses on the permission to terms (Marsh, P.D.V. 1976).  Implied Contact: To pattern a legitimate agreement free consent is important (Leibee, B. C. (1976). However just in case of implied agreement it is to be suggested as a legitimate agreement if one party does not offer free permission. This type of agreements happens once an individual pretends to have any assets and sell it.  Executed Contact: It is a kind of agreement where both parties execute the terms and situation of the agreements before they go in to a contract and there is nothing to be worked out by each party (Hare, J. I. Clark. 2003). The presentation of the parties signifies that there is no contract, and then it is a performed contract. 1.3 ANALYSIS OF TERMS IN CONTRACTS Major alterations are essential to align the emplacement affirmation. There are numerous objectives of contracts. It is significant for the parties to understand the different kinds of agreements, terms, components, and signs which not only assists the parties to obey with the contract but also helps to weaken contract administration charges (Marsh, P.D.V. 2001). 5

In alignment to become the best informative institute in UK they are going into contracts with some bureaus for their trading purposes and solving the lawful matters. So, they are endeavoring to arrest the vigilance and hiring agencies and lawful advisors to help them to the quest. The TAM’s college is endeavoring to become one of the best informative organizations in UK. To pattern a legitimate agreement there should be some dissimilarity amidst the swapping of periods, considerations and bargaining of the parties and TAM’s is trying to convey the dissimilarities. 6

TASK 2 2.1 APPLICATION OF THE ELEMENTS OF CONTRACT A legitimate agreement is enforceable by law. The parties must respect the terms and situation of the contract and if one party or the other party differs from the promise of affirmation then the party honoring the affirmation can go to court and take lawful actions (Marsh, P.D.V. 2001). The basic elements of the contract with NAMS are: Offer Acceptance Free consent Formal relation Enforcea ble by law Figure: Basic Elements of Valid Contract F NAMS gave the offer of intensive promotion for one month to make TAM’s status high and aid them in becoming one of the best educational organizations in the UK. In a prescribed legitimate contract offer is the initiation of a contract with another party forms a business relationship. TAM’s college has accepted the NAMS trading offer for one month and paid the primary fee of £2500 and entered in to a legitimate contract. Both the parties in the agreement entered into the agreement with free consent and in a writing documentation turned the agreement in a prescribed 7

relation. Because in alignment to make a valid contract the periods and conditions of the contract have to be acknowledged by the parties taking part in an agreement, otherwise it will be considered as a void agreement Legitimate contract is enforceable by law. NAMS were unable to supply trading assistance to TAM’s college so that the TAM’s college has taken legal activities against NAMS. The administration of TAM’s college has the authority and verification that NAMS has breached the agreement affirmation and the primary term. 2.2 APPLICATION OF THE LAW Vital elements that are important needs to be advised in alignment to make a legitimate agreement (Marsh, P.D.V. 2001). Attitude of the parties may disagree from the agreement which was presumed to be in use as just a pre-declaration of the legitimate agreement and consequently not part of the agreement (DiMatteo, L. A. 1998). The parties involved in an agreement give selfassurance and boost the terms and conditions of a contract. Parties to an indenture follow only its periods, not by any insignificant statements that may not be completed. 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 (Marsh, P.D.V. 2001). The indenture itself provides motivation to the both parties. The court looks at each case on its own merits. In making 8

a decision as to whether a term is a condition or a warranty, the court will consider all the surrounding circumstances, including the seriousness of the consequences if the contract is held to be non-binding and the intentions of the parties at the time they made the contract. 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 (DiMatteo, L. A. 1998). It is called a “PROHIBITING PARAGRAPH” or a release clause. 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 There are numerous periods included in the agreements and some of them are only for formalities (Okeke, C.N. 1988). These are formation of contract and it is essential to be in a written and the close is required to set up it. There are many types of law and it desires diverse types of formalities. The Patrol Evidences Rule • It is a function that encompasses oral evidences. Oral evidence may not be adduced to adjoin to say thet they are not shown to be a bogus in writing article (Okeke, C.N. 1988). The contract habitually tries to the law of confirmation and concerns not only to agreements but also all types of credentials. Establishing Implied Terms • There are some positions in which contracts need to establish the inferred terms formally and it is made from one person to another person (Okeke, C.N. 1988). Figure: Effects of Different Terms 9

The Up-To-The-Minute Observation The contravention of a circumstance allows the overhead misgiving gathering to irresponsible applying the indenture as rejected, and the parties are endow to compel to the undertakings and performance (Marsh, P.D.V. 2001). In the granted position, TAM’s college has acquiesced to supply the marketing contract to NAMS founded on their oral evidence of strong marketing and promotional tools 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 regulation of tort and of contract is categorized as part of the "Law of Obligations", but the law of tort applies to everyone that it is applicable to, while in the regulation of agreement or in trusts obligation is "Voluntarily Assumed" (DiMatteo, L. A. 1998). Agreement damages are founded on deficiencies that are expected, while tort damages are compensatory. 3.2 THE NATURE OF LIABILITY IN NEGLIGENCE 1. DUTY: The glue of communal obligation is the threaded that binds humans to one another in groups where preferences are advised unsuitable if they disobey a pre-existing impulse and refurbish carelessly (DiMatteo, L. A. 1998). The duty is a sense of obligation of one individual to another individual, it is created pattern the communal desires, beliefs and various types of belief. 2. Breach of Contract: Breach of agreement is most significant thing in the agreement tort of negligence. It is the demeanour of the people to act as an irresponsible individual or party and not accomplishing the contract terms and conditions (DiMatteo, L. A. 1998). This component suggests the pre-existence of a benchmark of correct demeanour to bypass imposing undue dangers of damage to people. NAMS has broken the agreement when they have halted the trading of TAM’s for one week. 3. Similar Cause: There are some close causes in diverse forms, the issue of realistic causation and the components just examined and factual attachment between defence break and applicant (DiMatteo, L. A. 1998). 3.3 VICARIOUS LIABILITY IN BUSINESS It is a doctrine of English tort law that imposes strict liability on employers for the wrongdoings of their employees. Generally, a boss will be held liable for any tort pledged while a worker is carrying out their obligations (Leibee, B. C. 1976). Vicarious responsibility means that 11

somebody can be detained legally to blame for the inattentive actions of a distinct one-by-one even despite the fact that someone overwhelms no mistake in furtherance of the inattentive or tortuous acts (DiMatteo, L. A. 1998). TAM’s college management fell in the doctrine of vicarious liability because of the night guard’s family has taken legal activities against the organization. Though the administration and the supervisors were alerted about the accidents and were also suggested to wear protective apparel for the non-teaching staffs to bypass injuries. The employees who got hurt did not sustained the organization’s principle so the administration refused to give any reimbursement to the casualty but The TAM’s college are compelled to pay the reimbursement because of the doctrine 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 law during which it is supported and operated within the realm of intentional wrongful conduct of law and also the rudimentary reason of negligence regulation, is to manage and protect the employees from wounds associated to their line (Leibee, B. C. 1976). TAM’s college’s non-teaching employees were urged to use shielding consumer goods for his or her security and security. Duty of Care: A person could owe a compulsion of care to make sure that they are not bearing from any unreasonable injury. If such duty is broken, a legal liability is implemented. TAM’s college staffs were warned concerning the hurt and deficiency that the staff may face (Leibee, B. C. 1976). Sources of Negligence: Negligence will be characterized as malfunction to require correct care of precaution. It is the unintentional breach of a lawful obligation initiating impairment fairly predictable while not that the break would have not occurred. Potential sources of negligence • Poor selection of activities • Use of faulty equipment • Inadequate protection • Hazardous conditions Defence against Negligence • Assumption of risk • Sudden emergency • An act of God Figure: Sources of Negligence 13

Potential sources of negligence are:  Use of faulty equipment: Another potential source of negligence is the use of faulty equipment which can cause harm (Emenike, E.U.I. 1989).  Poor selection of activities: The activities that are beyond the capabilities of individuals or inadequate knowledge of activities are poor selection of activities (John W. 2009). Defence against Negligence:  Assumption of risk: It is assumed that a person takes measure of the risks when engaging in activity (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).  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 (John W. 2009). 4.2 APPLICATION OF VICARIOUS LIABILITY The TAM’s faculty has enforced the carrying the proper guideline and apparel for college’s nonteaching staffs to avoid future misfortunes. Though the experienced supervisors have unmarked the warning and he has sent off an evening guard on duty while not the proper attire. It is against the business policy. Supervisors has the inherent administration to command over the employees and the supervisors were asked to maintain the right clothing and correct defending gears of the non-teaching staffs (Hofstra, 2012). But in this scenario the supervisors did not pursue the instructions and lead one of their staffs to obligation without proper clothing. . In this case the supervisors were inattentive to the instructions and that lead one of the staffs to get hurt. However, vicarious responsibility means that somebody can be detained legally responsible for the inattentive acts of a different individual. But the authority of the TAM’s college will be found responsible because of vicarious liability doctrine. 14

The authority denied the compensation to the staff because he was not following the rules of the TAM’s college. But under the vicarious liability doctrine no matter how faulty the staffs are the TAM’s authority will be legally responsible for the staff’s wrong doing. 15

CONCLUSION TAM’s college are trying to become one of the best in UK and appointing marketing agency to encourage other students about the facilities of the TAM’s college and they are also hiring legal advisors to look after and maintain the legal aspects of the institute. Though the TAM’s college hired legal advisors but they were unable to avoid the lawsuit against them from a victim because of the “Vicarious Liability” doctrine and management have to settle the claim with the staff who was hurt during his working hours. 16

REFERENCES Black, H. C. (1979). Black Law Dictionary, St. Paul West Publishing Company vol. 57, no. 2, pp. 217-268. 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. 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 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. 17

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