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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 The management of TAM‟s college desires to turn this college into one the most best educational institutes in United Kingdom. Only for this reason they are appointing legal help to solve any future legal issues and risks. TAM‟s college has also made a formal relation with one of the marketing firms named NAMS to promote TAM‟s college. Besides the TAM‟s college has faced the trial against them because one of their employee did not pay attention to the instructions that are made by the management of TAM‟s college. The authority of TAM‟s college is obliged to pay the compensation to the injured employee because of the vicarious liability doctrine. 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 ......................................................................................... 9 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 DEFENSES...................................... 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 few essential elements of contract that are significant in order to make a valid contract. There are six essential elements of a valid contract. The essential elements of a valid contract are given below. Lawful Consideration: A related affirmation lead to an agreement where the individual accepting the offer takes deduction established on some authorized consideration (Hare, J. I. Clark. 2003). Offer and Acceptance: In association to design a legal affirmation an offer has to be prepared and it is the opening direction to an affirmation (Roberts, M. & Zahay, D. 2012). Followed by the offer the parties involved in the agreement have to agree upon the offer and as a result form an affirmation. Free Consent: In order to go in to a valid agreement the two parties required providing their free permission, or the contract will be guided as a useless and void affirmation (Black, H. C. 1979). Writing and Registration: An authorized deal has to be in a written outline and listed by the government supervision to make the affirmation legitimate (Black, H. C. 1979). Enforceable by Law: A proper affirmation is enforceable by instruction or it will be counseled as the trendy of break of agreement (Black, H. C. 1979). Formal Relation: alignment to make a legitimate affirmation Official relation has to be considered. Any act of unplanned affirmation will not be measured as an official agreement (Wood, D. and Smith, P. 1989). 4

1.2 THE IMPACT OF DIFFERENT TYPES OF CONTRACT There are many types of contracts that are; Implied Contact: This kind of contracts arises when a distinct behaves like he/she owns any property and sell those assets. To mold a legitimate confirmation free consent is important of the both parties (Black, H. C. 1979). But in case of implied contract it will be suggested as a legitimate agreement if one party does not give consent. For demonstration; if a servant sells his or her proprietor‟s stuffs as if s/he is the proprietor of the assets without the free consent of the proprietor then it will be advised as an implied agreement. Executed Contact: It is a type of contract where both parties fulfill the terms and conditions of the contracts earlier they go in to a contract and there is nothing to be controlled by each party (Wood, D. and Smith, P. 1989).If it is an executed contract, then the performance of the parties shows that there is no contract. Express Contract: Express contract refers to the type of contracts where it is either in the formation of a writing document or it can even be in the oral pattern which is acknowledged to the authority that focuses on the consent to terms (Hare, J. I. Clark. 2003). Contract under Seal: The customary procedure of making an agreement legit is the concluding of the lawful item that is enforceable (DiMatteo, L. A. 1998). It is important to assess the documents with seals and the parties are legally responsible to accept the outcomes of the affirmation after it is sealed. 5

1.3 ANALYSIS OF TERMS IN CONTRACTS There are many determinations of a contract. It is vital for the parties to gather the separate kinds of agreements, stages, and residents which not only supports the parties to trail with the testimonials but also supports to decrease statement costs (Hare, J. I. Clark. 2003). The TAM‟s college desires to become the best scholastic institutes of UK. So, they are making every single effort to gain the attention and allocating assistances and lawful consultants to aid them accomplishing their aims. In the procedure of becoming the best scholastic institute in UK, they are going into contracts with some organizations for their advertising and promotion reasons and clarifying the lawful matters. To design an appropriate agreement there must be some variation among the exchanging of terms between the parties and TAM‟s college is making every effort to bring the variations. 6

Task 2 2.1 APPLICATION OF THE ELEMENTS OF CONTRACT The parties involved in a contract must respect the periods and conditions of the contract and if one party or the other party contradicts from the pledge of affirmation then the party respecting the affirmation can proceed to court and take lawful actions (Marsh, P.D.V. 2001). Because a legitimate affirmation is enforceable by regulation. The basic elements of the contract with NAMS are: Acceptan ce Enforcea ble by law Offer Free consent Formal relation Figure: Basic Elements of Valid Contract NAMS gave suggestions for focused marketing for one month to take TAM‟s status upper and help them to fit into one of the best educational institutes in the UK. In a certified legal contract proposal is the beginning of a contract with an additional party and forms a business relationship. 7

In order to create an effective contract the terms and conditions of the contract has to be established by the parties taking part in the contract, else it will be measured as a void contract. TAM‟s college has accepted the NAMS advertising application for one month and paid the initial fee of £2500 and come into a lawful contract. Both of the parties in the contract entered into the contract with free bargain and a written guarantee turned the contract in a formal relation. Valid contract is enforceable by law. The supervision of TAM‟s college has the ability and evidence that NAMS has cracked the contract agreement and the initial term. NAMS were unable to provide promotional support to TAM‟s college so that the TAM‟s college has engaged with legitimate actions against NAMS. 8

2.2 APPLICATION OF THE L AW The parties loyal in agreement give self-guarantee and increase the episodes and conditions of an agreement (Marsh, P.D.V. 2001). Approach of the parties may affect from the assertion which was supposed to be in use as just a pre-affirmation of the legitimate agreement and accordingly not part of the affirmation (DiMatteo, L. A. 1998). As soon as two or more parties make an agreement then there are several vital components that must be advised in order to create a legitimate agreement. Parties to a convention pursue only its terms, not by any slight affirmations that perhaps not be accomplished. To form a valid contract certain requirements are needed. Such as; Collateral Contracts •Where the affirmation have been conceived and proposed as to make certain to induce the main affirmation. It is a kind of contract in which the terms and conditions are commonly in a writing pattern as the foundation of the affirmation. Juries have been coordinated to find a security convention someplace to make the agreement valid and beneficial for the parties acquiesced upon the agreement (DiMatteo, L. A. 1998). Contract Includes Conditions and Warranties •The affirmation itself motivates both the parties. The more imperative situation are describing "Circumstances", the lesser significant situation are called "Warranties”. These components are so significant that without any one or supplementary situation, the parties would not advance into the agreement (DiMatteo, L. A. 1998). Figure: Requirements of Valid Contract 2.3 EVALUATION OF THE EFFECT OF DIFFERENT TERMS There are numerous terms included in the affirmations and several of them are for guidelines and principles (Okeke, C.N. 1988). These are formation of assertion and it is 9

essential to be in a printed pattern and the close is compulsory. There are various kinds of guideline and it needs different kinds of procedures. a) The Patrol Evidences Rule Oral evidence might not be supplemented or shown to be a false in writing piece. It is a function that embraces oral evidences (Marsh, P.D.V. 2001). The contract habitually endeavors to the law of confirmation and concerns not only to accord but also to all types of identification. b) Establishing Implied Terms There are some positions in which agreements need to organize the inferred periods formally and it is completed from one one-by-one (Leibee, B. C. 1976). c) Various Types of Conditions The groundwork for committing a breach of circumstance at universal guideline is refutation and indemnity (Okeke, C.N. 1988). Different kinds of position may sway the affirmation and functional judiciousness of word is good for centered grouping of contractual signal. The Up-To-The-Minute Observation In the allocated situation, TAM‟s college has decided to grant the promoting agreement to NAMS on the foundation of their oral signs of solid marketing and progression for one month for £6000 and established a conditional agreement among TAM‟s college and NAMS. 10

Task 3 3.1 CONTRASTING LIABILITY IN TORT WITH CONTRACTUAL LIABILITY Tort and contact liability: Agreement compensations are established on scarcities that are foreseen, while tort compensations are compensatory. The directive of tort and of assertion is characterized as part of the "Law of Obligations", but the regulation of tort anxieties to each distinct that it is related to, while in the recommendation of arrangement or in faiths obligation is "Voluntarily Assumed" (DiMatteo, L. A. 1998). 3.2 THE NATURE OF LIABILITY IN NEGLIGENCE 1. DUTY: The glue of communal obligation is the negotiation that binds humans to one another in worshipers where likings are recommended unsuitably if they breach a pre-existing desire and restore hastily (DiMatteo, L. A. 1998). The liability is a compulsion of one individual to another individual, it is apprehended pattern the public desires and views. 2. Breach of Contract: It is the behaviour of the individuals to advance as a wild one-by-one or party and not acting out the contracts terms and situation. This element denotes the pre-existence of a standard of correct behaviour to escape imposing undue hazards of impairment to persons (Leibee, B. C. 1976). Breach of assertion is the most significant thing in the contract tort of negligence. NAMS has break through the assertion when they have terminated the progression and promoting of TAM‟s college for one week. 3.3 VICARIOUS LIABILITY IN BUSINESS Vicarious responsibility means that any person can be apprehended lawfully or to blame for the demanding obsession activities of a different individual nevertheless of the fact that somebody swamps no inaccuracy in persistence of the careless or tortuous acts (Leibee, B. C. 1976). It is a principle of English tort policy that imposes firm accountability on managers for the misconducts of their workers. Typically, a business 11

will be detained accountable for any tort promised while a worker is directing their obligations (DiMatteo, L. A. 1998). In the allotted situation the management of TAM‟s college released in the policy of vicarious obligation because the guard‟s family has engaged genuine legal activities beside the organization. Though the management and the administrators were warned about the hard luck and were moreover planned to wear appropriate clothing for the non-teaching personnel to keep away from damages. The employee who was injured did not pay attention to the organization‟s principles so, the admin denied to give any compensation for injuries to the sufferer but The TAM‟s college are bound to pay the benefit because of the principle of vicarious burden. 12

Task 4 4.1 APPLICATION OF THE TORT OF NEGLIGENCE AND DEFENSES There are some basics of the tort negligence and defences in various business situations, they are given below Tort Negligence Law: It is a system of law within which it is started and functioned within the realm of intentional tort law and also the elementary motive of negligence regulation, is to regulate and defend the workers from injuries that might happen in their line of work (Emenike, E.U.I. 1989). TAM‟s college‟s non-teaching staff s were guided to use defensive attire for his or her protection and security Duty of Care: A person might owe a duty of care to confirm that they are doing not irrational harm to them (Wood, D. and Smith, P. 1989). If such obligation is broken, a legitimate liability is compelled. The staffs of TAM‟s college was warned regarding the impairment and losses that the staff would possibly face. Sources of Negligence: Negligence may be defined as malfunction to require correct caution of protection. It is the unintentional break of a legitimate obligation inflicting harm that reasonably forecast the breach would haven not even appeared (John W. 2009). Potential sources of negligence • Poor selection of activities • Use of faulty equipment • Inadequate protection Defence against Negligence • An act of God • Assumption of risk • Sudden emergency Figure: Sources of Negligence 13

Potential sources of negligence are: Inadequate protection: Inadequate protection denotes to careless actions on portion of the individual who is unwilling to wear protective gears (John W. 2009). Use of faulty equipment: Another potential source of negligence is the use of faulty equipment which can cause harm (N. Et Al. Kumar, 2001). Poor selection of activities: The activities that are beyond the capabilities of individuals or insufficient knowledge of activities are poor selection of activities (John W. 2009). Defence against Negligence: Sudden emergency: Any act of instant action to help the individual in danger. Such as, attempt to rescue a person drowning in the water is an act of sudden emergency (Emenike, E.U.I. 1989). Assumption of risk: It is assumed that a person takes portion of the risks when engaging in activity (John W. 2009). 4.2 APPLICATION OF VICARIOUS LIABILITY The TAM‟s college has ordered the non-teaching staffs to carry out proper clothing that is made for the staffs duties in order to avoid forthcoming accidents. Though the superintendents have not listened to the warning and also sent off a guard on duty while not wearing the appropriate uniform. It is against the business policy. Although, tortuous blame means someone can be detained lawfully liable for the reckless actions of a definite individual. During this state of affairs the supervisors were heedless to the rules which lead one of the staffs to induce injury. However, TAM‟s college management are discovered blameful due to vicarious liability doctrine. The authority of the TAM‟s college has denied the compensation to the workers because the guard was not following the rules of the institution. However underneath the vicarious liability principle the employer has been lawfully detained for the actions of the employee because of the vicarious liability doctrine. 14

Conclusion In the given scenarios it can be deduced that TAM‟s college has selected and hired advisors who can help the institute with legal solutions that might arise in the future. They even have appointed marketing agencies to promote their feature and name to capture the student‟s attention. They follow the dream of becoming Britain‟s one of the best educational institutes. NAMS offered the brightest and comprehensive promotion program. Then again TAM‟s college was responsible to pay compensation for an incident with one of their employees. As an outcome TAM‟s had to face lawsuits and was liable to pay the compensation because of the vicarious Liability. 15

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. 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 N. Et Al. Kumar, 2001. “Negligence in business” 4th edition, Anmol Publications Mumbai. 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. 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. 16

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