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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 is going to become one of the most effective academic institutes in the UK and for this purpose they are assigning agents to look over the legitimate issues. TAM‟s college has decided to market their features and services and made an agreement with NAMS marketing firm for one month. However the management of TAM‟s college took proper actions based on the primary terms of the NAMS. The TAM‟s college has also encountered with the trial against them due to the accident of one of their employees for not wearing the suitable outfit on duty. The TAM‟s college has to undergo the legitimate penalties for the reason of the vicarious responsibility principle 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 ..............................................................................................................................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....................................................................................................................... 15 Conclusion ............................................................................................................................................ 16 References ............................................................................................................................................ 17 3

Task 1 1.1 Essential Elements of a Valid Contract There are some elements that are significant in order to form a formal relation and these elements are important in the contract. There are eight elements of valid contract. The essential elements of a valid contract are given below. 1. Offer and Acceptance: In order to form lawful contract a proposal has to be made and it is the principal step towards an agreement (Hare, J. I. Clark. 2003). Followed by the offer the concerned party has to agree upon the proposal and thus form an agreement. 2. Free Consent: To form a valid contract the two parties must provide their free consent, else the contract will be considered as a void contract and it will be avoidable (Hampton, J. 1976). 3. Lawful Consideration: An agreement lead to a contract when the person accepting the offer takes choice based on some lawful consideration (Chen L., Law S. and Lee S. 2003). 4. Possibility of Performance: A valid contract should contain the prospect of performance because if the contract cannot perform the topics then it will not be considered as a contract (Hare, J. I. Clark. 2003). 5. Formal Relation: Alignment to make an honest confirmation, Official relation has to be considered. Any act of casual affirmation will not be considered as a formal agreement (Chen L., Law S. and Lee S. 2003). 6. Certainty: Each and every portion of a contract has to be certain so that each parties are able to understand the issues concerning the contract (Kennedy, R. D. & McMullen, S. Y. 1968). 7. Enforceable by Law: A legal contract is enforceable by law or else it will be considered as the event of break of contract (Chen L., Law S. and Lee S. 2003). 8. Writing and Registration: An official contract has to be in a written pattern and registered by the government consultant to make the contract valid (Kennedy, R. D. & McMullen, S. Y. 1968). 4

1.2 The Impact of Different types of Contract There are many types of contracts that are; Unconscionable Contact: It is a contract where both parties are concern about the contract but one party gets the higher benefits than the other (Hare, J. I. Clark. 2003). This type contracts are unenforceable because there is deficiency of free consent from one of the party. Contract under Seal: The traditional manner of building a contract legal is the sealing of the legal certificate that is enforceable (Chen L., Law S. and Lee S. 2003). It is important to stamp the deed with several seals and the both parties are responsible to admit the consequences of the agreement after it is sealed. Implied Contact: Free consent is important of the both parties to form a legal agreement. But for implied contract it will be considered as a valid contract if one party does not give free consent (Hare, J. I. Clark. 2003). This type of contracts happens when a person pretends to own any assets and sell it. For example; if a servant sells his or her owner‟s stuffs as if s/he is the owner of the assets without the free consent of the owner then it will be measured as an implied contract. Express Contract: Express contract is one of the several types of contracts. It may be in the formation of a printed manuscript or it can even be in the verbal form which is acknowledged to the senate that focuses on the consent to terms (Chen L., Law S. and Lee S. 2003). 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 (Hare, J. I. Clark. 2003).If it is an executed contract, then the performance of the parties shows that there is no contract. 1.3 Analysis of Terms in Contracts There are many purposes of a contract. It is essential for the parties to realize the distinct kinds of agreements, periods, and constituents which not only assists the parties to follow with the statements but also assists to reduce statement costs (Bucher, C.A. 1983). 5

The TAM‟s college wants to become one of the best educational institutes of UK. So, they are making every effort to gain the attention and assigning agencies and lawful consultants to help them achieving their goals. In the process of becoming the best educational 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 A valid contract is enforceable by law. It is essential for the parties to honor the terms and conditions of the contract and if one party or the other party fluctuates from the promise of agreement then the party honoring the agreement can go to court and take lawful actions (Marsh, P.D.V. 2001). The basic elements of the contract with NAMS are: Figure: Basic Elements of Contract NAMS gave proposals for concentrated marketing for one month to make TAM‟s status higher and help them to turn into one of the best educational institutes in the UK. In an official valid contract proposal is the initiation of a contract with another party and forms a business relationship. In order to make a valid contract the terms and conditions of the contract has to be accepted by the parties participating in a contract, otherwise it will be measured as a void contract. TAM‟s 7

college has accepted the NAMS marketing proposal for one month and paid the initial fee of £2500 and come into a legal contract. Both of the parties in the contract entered into the contract with free consent and a written certification turned the contract in an official relation. The management of TAM‟s college has the authority and evidence that NAMS has broken the contract agreement and the preliminary term. NAMS were incapable to provide marketing support to TAM‟s college so that the TAM‟s college has taken legitimate actions against NAMS. 2.2 Application of the Law Between contracts of two parties there are several key elements that are essential to be considered in order to create a valid contract. The parties involved in contract provide assurance and inspire the terms and conditions of a contract (Marsh, P.D.V. 2001). Belief of the parties may vary from the agreement which was imaginary to be in use as just a pre-declaration of the valid contract and subsequently not part of the contract (Wood, D. and Smith, P. 1989). Parties to an indenture follow only its terms, not by any minor statements that may not be completed. To form a valid contract certain requirements are needed. Such as; i. 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. ii. 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 (DiMatteo, L. A. 1998). As a result, to construct a circumstance falsely, or to breach a condition, is viewed 8

so dangerously and considered as a mistreated agreement. The indenture itself provides motivation to the both parties. Exclusion of responsibility of the terms: Contract can be made where supplementary organizations are likely to have a term in the agreement which eliminates one of the party‟s liabilities that may go wrong in the demonstration of the agreement or limitations on that liability. It is called a “Prohibiting Paragraph” or a release clause (N. Et Al. Kumar, 2001). Based on the situation, a prohibiting clause from “responsibility” for spoil complete 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 many terms involved in the contracts and some of them are for documentations. These are formation of contract and it is essential to be in written and the hallmark is required to establish it (Okeke, C.N. 1988). There are several types of law and it needs various types of formalities. 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 Terns 9

The Up-To-The-Minute Observation The violation of a situation allows the above misgiving assemblies to careless expenditure the indenture as prohibited, extravagance in the indenture and the parties are enable to force the actions and performance (Collins, Hugh. 1999). In the given circumstances, TAM‟s college has decided to provide the marketing contract to NAMS based on their oral evidence of intense marketing for one month only for £6000 and established an implied contract between TAM‟s college and NAMS. 10

Task 3 3.1 Contrasting Liability in Tort with Contractual Liability Tort and contact liability: The law of tort and of contract is classified as part of the "Law of Obligations", but the law of tort applies to everyone that it is relevant to, while in the law of contract or in beliefs obligation is "Voluntarily Assumed" (DiMatteo, L. A. 1998). Contract damages are based on losses that are expected, while tort damages are compensatory. 3.2 The Nature of Liability in Negligence 1. Breach of Contract: In the contract tort of negligence Breach of Contract is most important thing. It is the behaviour of the people to act as a careless person or party and not acting the contract terms and conditions (Okeke, C.N. 1988). This portion indicates the pre-existence of a standard of appropriate behaviour to avoid imposing undue threats of harm to people. NAMS has broken the contract when they have stopped the marketing of TAM‟s for one week. 2. DUTY: The duty is a responsibility of one person to another person; it is created form of the common needs, philosophy and various sorts of religion (DiMatteo, L. A. 1998). The glue of social burden is the threaded that binds humans to one another in groups where preferences are considered unsuitable if they breach a pre-existing desire and restore casually. 3. Cause in Fact: A small amount of trouble are more charming, with resolution more indefinable then causation (DiMatteo, L. A. 1998). Based on the surroundings and performances a person might choose to take steps and avoid doing from sloppy dramatics in convinced. 3.3 Vicarious Liability in business It is a policy of English tort law that imposes strict responsibility on managers for the misconducts of their staffs. Usually, an employer will be held responsible for any tort committed while an employee is carrying out their duties (John W. 2009). Vicarious responsibility means 11

that somebody can be detained legitimately responsible for the reckless acts of a different individual even despite the point that somebody overcomes no error in maintenance of the unfocussed or indirect acts (DiMatteo, L. A. 1998). In the given situation the management of TAM‟s college fell in the doctrine of vicarious liability because the night guard‟s family has taken lawful actions counter to the institution. However the management and the administrators were informed about the accidents and were also instructed to dress protective outfit for the non-teaching employees to avoid injuries. The employee who got hurt did not keep up the organization‟s policy so the management declined to give any advantage to the victim but The TAM‟s College are certain to pay the compensation because of the policy of vicarious liability. 12

Task 4 4.1 Application of the Tort of Negligence and Defences There are some basics of the tort negligence and defences in various business situations, they are given below Tort Negligence Law: It is a procedure of law in which it is initiated and operated in the realm of intentional tort law and the elementary motive of negligence law, is to control and protect the workers from injuries connected to their line (Leibee, B. C. 1976). TAM‟s college‟s nonteaching workers were guided to use defensive clothing for their protection and security. Duty of Care: An individual may owe a responsibility of care to ensure that they do not injured from any irrational harm or loss (Okeke, C.N. 1988). If such obligation is breached, a legitimate liability is forced. TAM‟s college workers were cautioned about the damage and losses that the workers might face. Sources of Negligence: Negligence can be defined as failure to take accurate caution of protection. It is the accidental breach of a legitimate duty causing damage reasonably foreseeable without which the breach 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 insufficient knowledge of activities are poor selection of activities (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). Inadequate protection: Inadequate protection denotes to careless actions on portion of the individual who is unwilling to wear protective gears (John W. 2009). 13

Potential sources of negligence Poor selection of activities Use of faulty equipment Inadequate protection Figure: Sources of Negligence Defence against Negligence: Assumption of risk Sudden emergency Figure: Sources of Negligence Defence against Negligence: Assumption of risk: It is assumed that a person takes portion of the risks when engaging in activity (John W. 2009). 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). 14

4.2 Application of Vicarious Liability The TAM‟s college has enforced the wearing for school‟s non-teaching staffs for example guards and labors in order to avoid upcoming accidents. However the senior superintendents have ignored the caution and he has sent off a night guard on duty without the suitable clothing. It is against the company policy. Supervisors has the in-built authority to control over the employees and the supervisors were asked to maintain the right clothing and proper protecting gears of the non-teaching staffs (Okeke, C.N. 1988). But in this situation the supervisors did not follow the directions and lead one of their employees to duty deprived of proper clothing. However, indirect responsibility means that somebody can be detained lawfully responsible for the reckless acts of a different individual. In this situation the supervisors were careless to the guidelines and that lead one of the staffs to get hurt. But the authority of the TAM‟s college will be found blameable because of vicarious liability doctrine. The authority denied the compensation to the staff because he was not following the guidelines of the TAM‟s college. But under the vicarious liability policy no matter how faulty the employees are the TAM‟s authority will be legally responsible for the staff‟s wrong doing. 15

Conclusion In the scenario 1, 2 and 3 we can see that TAM‟s college has appointed legal advisors in order to deal with the lawful issues that are probable threat for them. They also have an ambition of being the best educational institute in the UK and for this reason they were hiring agencies to promote their college and trying to capture the attention of the students who wants superiority education with the uppermost facility. On the last scenario, TAM‟s college was accountable to pay a compensation for an occurrence with one of their staff that they have denied because of the staffs careless act against the policies of the college. As a consequence TAM‟s had to face lawsuits and fell in to an English doctrine called “Vicarious Liability”, which indicates that TAM‟s were bound to pay the compensation to the staff because of the vicarious liability. 16

References 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 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. 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 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 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. 707719. 17

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