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Published on March 9, 2014

Author: Nordis512

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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 Established on the eventualities TAM‟s college wanted to increase their reputation by marketing their features to the public. That is why they hired a marketing company to help them in the quest of becoming one of the finest institutes in the United Kingdom. The management of TAM‟s college has also appointed legal advisors to look after the legal issues in the business. According to the elements of valid contract TAM‟s college sued the marketing firm NAMS for not following their initial terms. In the third scenario TAM‟s college became the victim of Vicarious Liability doctrine and had to face lawsuits from one of their employees for denying the compensation that TAM‟s college owed. 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 .................................................................................................................................... 16 References ..................................................................................................................................... 17 3

Task 1 1.1 Essential Elements of a Valid Contract There are five essential elements of a valid contract in order to form a formal contract with parties provided free consent. The essential elements of a valid contract are given below. 4. Writing and Registration 5. Enforceable by Law 3. Free Consent 2. Lawful Consideration 1. Offer and Acceptance Figure: Essential Elements of Valid Contract I. Offer and Acceptance: In alignment to pattern a legal affirmation an offer has to be made and it is the initiation directing to an affirmation (Hare, J. I. Clark. 2003). Followed by the offer the parties involved in the contract have to accept upon the offer and therefore form an affirmation. II. Lawful Consideration: A mutual affirmation lead to an agreement where the individual accepting the offer takes presumption founded on some lawful consideration (Collins, Hugh. 1999). III. Free Consent: In order to go in to a legitimate agreement the two parties have to give their free consent, or the contract will be guided as a null and void affirmation (Marsh, P.D.V. 2001). 4

IV. Writing and Registration: An authorized indenture has to be in a written pattern and listed by the government administration to make the affirmation legitimate (Hare, J. I. Clark. 2003). V. Enforceable by Law: A legitimate affirmation is enforceable by regulation or it will be advised as the happening of break of agreement (Black, H. C. 1979). 1.2 The Impact of Different Types of Contract There are many types of contracts that are; Implied Contact: This kind of agreements occurs when an individual behaves like he/she owns any assets 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. Unconscionable Contact: It is an affirmation in which the parties are alerted about the affirmation but one party gets the higher advantages than the other. This kind of agreement is unenforceable because there is lack of free consent from one of the party (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 (Marsh, P.D.V. 2001). 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. Executed Contact: It is a kind of affirmation where both parties execute the terms and situation of the contracts before they go in to an affirmation and there is not anything to be worked out by each party (Collins, Hugh. 1999). 5

1.3 Analysis of Terms in Contracts There are many objectives of a contract. It is important for the parties to realize the distinct kinds of agreements, periods, and constituents which not only assists the parties to obey with the affirmation but also assists to reduce affirmation costs (Bucher, C.A. 1983). The TAM‟s college is trying to become one of the best educational institutes of UK. So, they are endeavoring to gain the attention and appointing agencies and lawful advisors to help them with the objective. In order to become the best educational institute in UK, they are going into agreements with some agencies for their marketing and promotion reasons and explaining the lawful matters. To pattern a legitimate agreement there should be some dissimilarity amidst the exchanging of terms between the parties and TAM‟s college is endeavoring to bring the dissimilarities. 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 (Collins, Hugh. 1999). Because a legitimate affirmation is enforceable by regulation. The basic elements of the contract with NAMS are: Figure: Basic Elements of Valid Contract NAMS provided brags for intensive advancement for one month to make TAM‟s status skyscraping and aid them to become one of the best educational organizations in UK. In an authorized valid affirmation, offer is the initiation of an affirmation with another party and types a business relationship. 7

On the verge to make a legitimate contract the periods and conditions of the contract has to be accepted by the parties taking part in an affirmation, or it will be advised as a void agreement. TAM‟s college has accepted the NAMS marketing offer for one month and paid the primary charge of £2500. Both the parties in the affirmation went into the contract with free consent and the affirmation was in a written pattern to make the agreement an official agreement. Legitimate agreement is enforceable by guideline. The management of TAM‟s college has the confirmation that NAMS has breached the affirmation. NAMS were unable to provide marketing assistance to TAM‟s college so that, the TAM‟s college has taken lawful undertakings against NAMS. 2.2 Application of the Law The parties committed in agreement give self-assurance and increase the periods and conditions of an agreement (Marsh, P.D.V. 2001). Attitude of the parties may disagree from the affirmation which was presumed to be in use as just a pre-declaration of the legitimate agreement and consequently not part of the affirmation (DiMatteo, L. A. 1998). As soon as two or more parties make an agreement then there are some crucial components that need to be advised in order to make a legitimate agreement. Parties to an indenture pursue only its terms, not by any minor affirmations that may 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 (Marsh, P.D.V. 2001). Juries have been coordinated to find a security convention someplace to make the agreement valid and beneficial for the parties acquiesced upon the agreement. 8

 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). As a result, to assemble a circumstance incorrectly, or to break a status, is examined so vigorously and advised as a mistreated confirmation. The court examines at each case on its own deserves. 2.3 Evaluation of the Effect of Different Terms There are many terms embraced in the affirmations and some of them are for directions and regulations (Chen L., Law S. and Lee S. 2003). These are formation of affirmation and it is necessary to be in a written pattern and the close is required. There are numerous kinds of guideline and it needs diverse kinds of formalities. The Patrol Evidences Rule Establishing Implied Terms Various Types of Conditions •Oral evidence might not be supplemented or shown to be a false in writing piece. It is a function that embraces oral evidences (Okeke, C.N. 1988). The contract habitually endeavors to the law of confirmation and concerns not only to accord but also to all types of identification. •There are some positions in which agreements need to organize the inferred periods formally and it is completed from one one-by-one (Chen L., Law S. and Lee S. 2003). •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. Figure: Effects of Different Terms 9

The Up-To-The-Minute Observation In the allocated position, TAM‟s college has agreed to grant the marketing agreement to NAMS on the cornerstone of their oral clues of strong marketing and advancement for one month 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: Agreement damages are established on deficiencies that are anticipated, while tort damages are compensatory. The regulation of tort and of affirmation is categorized as part of the "Law of Obligations", but the regulation of tort anxieties to every individual that it is applicable to, while in the guideline of agreement or in trusts 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 threaded that binds humans to one another in congregations where preferences are suggested inappropriately if they contravene a pre-existing impulse and restore hurriedly (DiMatteo, L. A. 1998). The duty is an obligation of one individual to another individual, it is conceived pattern the communal desires and beliefs. 2. Breach of Contract: It is the demeanour of the persons to advance as a reckless one-byone or party and not performing the agreement terms and situation. This component implies the pre-existence of a benchmark of correct demeanour to avoid imposing undue dangers of impairment to people (Marsh, P.D.V. 2001). Breach of affirmation is the most important thing in the agreement tort of negligence. NAMS has breached the affirmation when they have halted the advancement and marketing of TAM‟s college for one week. 3.3 Vicarious Liability in business Vicarious responsibility means that any person can be detained legally or to blame for the needing engrossment activities of a distinct individual regardless of the detail that someone swamps no mistake in furtherance of the inattentive or tortuous acts (Leibee, B. C. 1976). It is a doctrine of English tort guideline that imposes firm liability on employers for the wrongdoings of their workers. Usually, a business will be held liable for any tort pledged while a worker is conducting their obligations (DiMatteo, L. A. 1998). 11

In the allocated scenario the management of TAM‟s college dropped in the doctrine of vicarious liability because the guard‟s family has taken legitimate legal actions against the organization. Though the management and the supervisors were alerted about the misfortunes and were furthermore proposed to wear proper clothing for the non-teaching employees to keep away from injuries. The employee who was hurt did not pay attention to the organization‟s principles so, the administration denied to give any payment for damages to the casualty but The TAM‟s college are compelled to pay the compensation 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 Duty of Care: The person might owe an obligation of care to double-check that they do not suffer from any inapt harm. If such obligation is broken, a lawful liability is enforced (Leibee, B. C. 1976). TAM‟s college workers were notified about the damage and deficiency that the employees might face. Tort Negligence Law: It is a pattern of regulation in which it is founded and functioned in the realm of intentional tort guideline and the rudimentary reason of negligence guideline, is to command and defend the employees from cuts related to their line (Marsh, P.D.V. 2001). TAM‟s college‟s non-teaching workers were proposed to use protecting apparel for their security. TAM‟s college employees were warned about the harm and losses that the employees might face. If such duty is breached, a legal liability is imposed. An individual may owe a duty of care to ensure that they do not suffer from any unreasonable harm (John W. 2009). Potential sources of negligence Use of faulty equipment Inadequate protection Poor selection of activities Defence against Negligence Sudden emergency An act of God Assumption of risk 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 (John W. 2009). Inadequate protection: Inadequate protection refers to negligent behaviour on part of the person who is unwilling to wear protective gears (John W. 2009). Poor selection of activities: The undertakings that are beyond the capabilities of individuals or inadequate information of undertakings are poor assortment of activities (Emenike, E.U.I. 1989). 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 (John W. 2009). 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 (Emenike, E.U.I. 1989). Assumption of risk: It is assumed that a person takes measure of the risks when engaging in activity (Emenike, E.U.I. 1989). 4.2 Application of Vicarious Liability Supervisors have the inherent power to control over the workers and the supervisors were requested to sustain the right apparel 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 responsibility without correct apparel. The TAM‟s college has enforced the wearing for college‟s non-teaching staffs in alignment to stay away from future accidents. Whereas the older supervisors have overlooked the policies and he has dispatched off an evening guard on obligation without the correct apparel. It is against the institute‟s standard. On the other hand, vicarious blame means that any individual can be detained legally to blame for the inattentive activities of a distinct person. In this case the supervisors were inattentive to 14

the main headings and that lead one of the staffs to get hurt. But the administration of the TAM‟s college will be exposed to blame because of vicarious liability doctrine. The management rejected the settlement to the worker because he was not following the policies of the TAM‟s college. But under the vicarious liability doctrine a worker may be defective but TAM‟s administration will be lawfully to accuse for the staff‟s incorrect doing. 15

Conclusion From state of affairs we are able to see that TAM‟s college has appointed lawful advisors so as to modify the lawful matters that are pledges to risk for them. NAMS marketing firm provided the brilliant offer that they will use comprehensive selling tool and promote the college name for one month just for £6000. NAMS had to stall the program owing to money matters and TAM‟s college were not happy regarding it and that they have taken lawful activities against NAMS based on their oral offer. On the third state of affairs TAM‟s college was vulnerable to pay a compensation for an accident with one of their workers that they denied attributable to the staffs negligence against the principles of the institution. In the end TAM‟s had to face lawful actions associated with the incident with the worker and had to provide the compensation because of the English doctrine referred to as “Vicarious Liability”. 16

References Black, H. C. (1979). Black Law Dictionary, St. Paul West Publishing Company vol. 57, no. 2, pp. 217-268. Bucher, C.A. (1983). Administration of Legal Responsibilities. The C.V. Mosby Company, St. Louis., vol. 32, no. 8, pp. 849-875. Chen L., Law S. and Lee S. (2003) „business contract- the laws and regulation in practice‟– an empirical study, Business contract, Vol. 24 Issue 3, pp.299-318 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. Hofstra, 2012. “Business law and commercial law and practical use of these” (Online) availableat :< http://law.hofstra.edu/pdf/Academics/Journals/LawReview/lrv_issues_v35n04_i01.pdf> (Accessed on November 24, 2013) 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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