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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 In order to become one of the best TAM‟s college has decided to go into contract with marketing agencies and NAMS brought the best offer for TAM‟s college to help TAM‟s in their quest of becoming one of the finest. They also appointed legal advisors to gaze over the legal issues of the TAM‟s college. TAM‟s college has also faced the legal actions against them due to the misfortune of one of their staffs for not wearing the proper apparel on duty. The TAM‟s college has to bear the legal penalties because of the vicarious liability doctrine in the business. 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 ..................................................................................................................................6 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 eight 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. 1. Free Consent 2. Possibility of Performance 3. Lawful Consideration 4. Enforceable by Law 5. Formal Relation 6. Offer and Acceptance 7. Writing and Registration 8. Certainty 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 (Kennedy, R. D. & McMullen, S. Y. 1968). 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 (Wood, D. and Smith, P. 1989). Lawful Consideration: An agreement lead to a contract when the person accepting the offer takes decision based on some lawful consideration (Myer, J. W. 1978). Enforceable by Law: A valid contract is enforceable by law otherwise it will be considered as the event of breach of contract (Hampton, J. 1976). Formal Relation: Formal relation has to be present in order to make a valid contract (Roberts, M. & Zahay, D. 2012). Any act of informal agreement cannot be considered as a formal contract, for example; a person gave promise to 4

another person that he would give him some money but he did not mention any time. So, it will not be count as a contract because there was no formal relation present. Offer and Acceptance: In order to form valid contract an offer has to be made and it is the first step towards an agreement (Horton, C., 2012). Followed by the offer the interested party has to accept upon the offer and thus form an agreement. Writing and Registration: A formal contract has to be in written and registered by the government authority to make the contract valid (Kennedy, R. D. & McMullen, S. Y. 1968). Certainty: Each and every element of a contract has to be certain so that each parties are able to realize the issues regarding the contract (Roberts, M. & Zahay, D. 2012). 1.2 THE IMPACT OF DIFFERENT TYPES OF CONTRACT There are many types of contracts that are; Express Contract: Express contract is one of the numerous kinds of contracts. It is either in the formation of a written document or it can even be in the oral pattern which is acknowledged to the governing body that focuses on the permission to periods (Kennedy, R. D. & McMullen, S. Y. 1968). Executed Contact: It is a kind of agreement where both parties execute the periods and conditions of the agreements before they go in to an agreement and there is not anything to be worked out by each party (Hampton, J. 1976). The performance of the parties signifies that there is no contract, and then it is a performed contract. Contract under Seal: The customary method of making an agreement legitimate is the closing of the legal document that is enforceable (Wood, D. and Smith, P. 1989). It is significant to mark the document with diverse closures and the both parties are liable to accept the outcomes of the affirmation after it is sealed. 5

Implied Contact: To pattern a legitimate agreement free permission is significant of the both parties. But in case of implied agreement it will be considered as a valid agreement if one party does not give free consent (Myer, J. W. 1978). This kind of agreements happens when an individual imagines owning any assets and selling it. For example; if a servant deals his or her owner‟s stuffs as if s/he is the owner of the assets without the free permission of the proprietor then it will be advised as an implied agreement. 1.3 ANALYSIS OF TERMS IN CONTRACTS It is significant for the parties to realize the different kinds of agreements, terms, elements, and clues which not only assists the parties to comply with the agreement but also assists to weaken agreement administration charges (Bucher, C.A. 1983). There are numerous objectives of agreements. The TAM‟s college is trying to become one of the best informative institutes in UK. So, they are endeavoring to capture the vigilance and hiring agencies and lawful advisors to help them to the quest. In alignment to become the best informative institute in UK they are going into contracts with some agencies for their trading reasons and explaining the legal issues. To pattern a legitimate agreement there should be some dissimilarity amidst the exchanging of periods, concerns and bargaining of the parties and TAM‟s is endeavoring to convey the dissimilarities. 6

TASK 2 2.1 APPLICATION OF THE ELEMENTS OF CONTRACT The parties must respect the terms and situation of the agreement and if one party or the other party disagrees 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: Acceptance Enforceable by law Offer Free consent Formal relation Figure: Basic Elements of Valid Contract Legitimate affirmation is enforceable by law. NAMS were incapable of delivering the promised help to TAM‟s college so they have has taken lawful undertakings against NAMS. The administration of TAM‟s college has the proof that NAMS has broken the affirmation and their primary status. TAM‟s college wanted to take their reputation high and help them to become one of the best educational institutes in the UK. So that, NAMS provided offers for intensive 7

promotion for one month to help TAM‟s in their quest. In a formal legitimate agreement offer is the initiation of an agreement with another party and types an enterprise relationship. TAM‟s college has acknowledged the NAMS trading offer for one month and paid the primary fee of £2500 and went into in to a legitimate contract. In order to make a valid agreement the terms and situation of the contract has to be acknowledged by the parties taking part in an agreement, else it will be considered as a void agreement. Both the parties in the agreement entered into the agreement with free consent and with a written documentation turned the contract in a prescribed relation 2.2 APPLICATION OF THE LAW Important parts that are crucial to the agreement need to be punctual in alignment to conceive a legitimate affirmation (Marsh, P.D.V. 2001). 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). Parties to an indenture pursue solely its time span, 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 reasonably to accept that the terms and scenario are usually in writing because the cornerstone of the affirmation. While the declaration are conceived and intended on to double-check and induce the most contracts (DiMatteo, L. A. 1998). Adjudicators are coordinated to search out a security scopes somewhere to conceive the agreement legitimate and help the parties acquiesced upon the agreement. 8

 Contract Includes Conditions and Warranties The more imperative terms are describing "Circumstances", the smaller allowance important periods are called "Warranties”. These components are so important that in absence of any one or supplementary of the parties would not proceed into the indenture. The indenture itself provides motivation to the both parties (Kennedy, R. D. & McMullen, S. Y. 1968). In making a decision as to if a period is a condition or a warranty; the court will consider all the surrounding attenuating factors, including the gravity of the penalties if the agreement is held to be non-binding and the aims of the parties at the time they made the contract. 2.3 EVALUATION OF THE EFFECT OF DIFFERENT TERMS Some periods are enclosed inside the agreements and a couple of them are just for formalities (Okeke, C.N. 1988). 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. The Patrol Evidences Rule Establishing Implied Terms Various Types of Conditions •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 (Wood, D. and Smith, P. 1989). The contract always tries to the law of confirmation and applies not only to contracts but also all kinds of credentials. •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 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: Effects of Different Terms 9

The Up-To-The-Minute Observation The opposition of a circumstance allows the overhead misgiving accumulating to unaccountable applying the indenture as turned down, and therefore the parties are endowed to compel to the undertakings and performance (Collins, Hugh. 1999). In the scenario listed, TAM‟s college and NAMS has bound themselves in a formal contract based on NAMS oral evidence of providing the best promotional facilities 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). 3.2 THE NATURE OF LIABILITY IN NEGLIGENCE 1. DUTY: If any of the party deny a pre-existing impulse and improves heedlessly (Chen L., Law S. and Lee S. 2003). The glue of communal obligation is that the beam that binds humans to one another in groups while preferences are proposed unsuitable. The duty may be a sense of obligation of a person to another person. 2. Breach of Contract: Break of affirmation is most important factor inside the affirmation misconduct of negligence. It is the kind of the actions of the individuals that is irresponsible on behalf of the party and not performing the obligation of the contract terms and conditions (DiMatteo, L. A. 1998). NAMS has broken the affirmation after they have halted the trading of TAM‟s for one week. 3.3 VICARIOUS LIABILITY IN BUSINESS In the English doctrine of tort negligence law, the employer can be suspect for the wrongdoings of the workers. Usually, a supervisor is going to be command chargeable for any tort finished while a worker is bearing out their obligations (Leibee, B. C. 1976). 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 (Chen L., Law S. and Lee S. 2003). The non-teaching individual who got injured did not pay attention to the organization‟s principle and so that, the administration refuted to present any reimbursement to the 11

casualty although The authority of TAM‟s college are compelled to pay the reimbursement ascribed to the conviction of vicarious liability. The management of 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 non-teaching staffs to avoid injuries. 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 sort of regulation all through that it will be maintained and functioned inside the realm 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 shielding attire for his or her security. Duty of Care: Somebody might owe an urge of care to imagine 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. Sources of Negligence: Negligence is going to be notable as malfunction to desire correct care of precaution. 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). Potential sources of negligence are: 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). Inadequate protection: Inadequate protection refers to negligent behaviour on part of the person who is unwilling to wear protective gears (Emenike, E.U.I. 1989). 13

Defence against Negligence: 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 (Emenike, E.U.I. 1989). 4.2 APPLICATION OF VICARIOUS LIABILITY The management of TAM‟s college has imposed the carrying of correct guideline and attire for college‟s non-teaching staffs to bypass future accidents. Whereas the masterful supervisors have unmarked the alert associated the misfortunes because of not wearing the right apparel. It is against the enterprise principle. Although throughout this state of activities the supervisors did not pursue the directions and lead one amidst their staffs to obligation while not wearing. A supervisor has the natural authority to control over the employees and therefore the supervisors were asked to maintain the correct protected gears of the non-teaching staffs (Wood, D. and Smith, P. 1989). Although, vicarious responsibility means anyone can be detained lawfully to blame for the inattentive activities of the employee. Here the supervisors were inattentive to the main headings which lead one of their staffs to induce wound. Although the board of the TAM‟s college is exposed to the English doctrine of vicarious liability doctrine. The TAM‟s has rejected the settlement to the staff because he was not following the orders of the management. Yet the Tam‟s college is legally liable for the accident due to the English doctrine of vicarious liability. 14

CONCLUSION TAM‟s college have been endeavouring to develop their rank and trying to get the top spot in the educational institute ranks within the UK. In order to pursue this objective they were going along with the agencies for legal and advertising help to increase their college reputation. On the third scenario of undertakings TAM‟s college was susceptible to reimburse an employee as a result of the employee has caught in an accident during the work hours and TAM‟s college had to face lawful undertakings attached to with the incidence with the worker and might have to pay the reimbursement as a deduction of “Vicarious Liability”. 15

REFERENCES Bucher, C.A. (1983). Administration of Legal Responsibilities. The C.V. Mosby Company, St. Louis., vol. 32, no. 8, pp. 849-875. 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. Hampton, J. 1976. “Legal Responsibilities in Business”, Reston: Prentice Hall. 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 Kennedy, R. D. & McMullen, S. Y. 1968. “Contract Negotiation and Contract Theory”, Home Wood, Illinois: Richard D. Inrurin. 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. 707-719. Roberts, M. & Zahay, D. 2012, Laws and Regulation in practice in Business, 6th Edition, Wadsworth Publishing Co, Belmont, USA. 16

Wood, D. and Smith, P. (1989) practice of business law in contractual intent: First Report on the 1987 Survey, Research Paper No. 63, London: Department of Business law. 17

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