Published on March 9, 2014
An Assignment on ASPECT OF CONTRACTS AND NEGLIGENCE’S FOR THE BUSINESS Submitted: Name: ID: Submitted To: Date of Submission:
TABLE OF CONTENT EXECUTIVE SUMMARY 2 TASK 1 3 1.1 ESSENTIAL ELEMENTS OF A VALID CONTRACT 1.2 THE IMPACT OF DIFFERENT TYPES OF CONTRACT 1.3 ANALYSIS OF TERMS IN CONTRACTS 3 4 5 TASK 2 6 2.1 APPLICATION OF THE ELEMENTS OF CONTRACT 2.2 APPLICATION OF THE LAW 2.3 EVALUATION OF THE EFFECT OF DIFFERENT TERMS 6 7 9 TASK 3 10 3.1 CONTRASTING LIABILITY IN TORT WITH CONTRACTUAL LIABILITY 3.2 THE NATURE OF LIABILITY IN NEGLIGENCE 3.3 VICARIOUS LIABILITY IN BUSINESS 10 10 10 TASK 4 11 4.1 APPLICATION OF THE TORT OF NEGLIGENCE AND DEFENCES 4.2 APPLICATION OF VICARIOUS LIABILITY 11 13 CONCLUSION 13 REFERENCES 14 1|Page
Executive Summary TAM’s college wants to become one the most effective academic institutes within the United Kingdom. To materialize this fact they made a contract with the NAMSmarketing firm. Their job was to promote the options and facilities provided by the institutions. NAMS marketing firm got the contract for one month. But throughout the month long agreement the marketing firm NAMS broken the contract and requested TAM’s management to let them continue their marketing program.However the administration of TAM’s college took legal actions based mostly on the primary terms of the NAMS that asserted; if the NAMS cannot deliver approval they will refund advance and moreover pay compensation of £1500.On the other hand, the college has moreover faced the prosecution against them owing to the misfortune of 1 of their staffs for not sporting the proper attire and shielding gear on duty. Thus the vicarious liability concept is actualized as theTAM’s college needs to bear the legal penalties. 2|Page
Task 1 1.1 ESSENTIAL ELEMENTS OF A VALID CONTRACT For making a valid contract, the following eight elements are very important. i. Offer and Acceptance ii. Free Consent iii. Lawful Consideration iv. Formal Relation v. Writing and Registration vi. Enforceable by Law vii. Certainty viii. Possibility of Performance Figure: Essential Elements of Valid Contract i. Offer and Acceptance:An offer has to be made for the arrangement of a legitimate agreement. It can be signified as the initiation of affirmation (Black, H. C. 1979).Subsequently, the involved party has to accept upon the offer and therefore an agreement pattern is prepared. ii. Free Consent:Free consent should be given by the two parties in order to form a legitimate agreement otherwise the contract will be advised as a null and void agreement (Black, H. C. 1979). 3|Page
iii. Lawful Consideration:A mutual agreement lead to an affirmation where the person accepting the offer takes conclusion which is based on some lawful consideration (Black, H. C. 1979). iv. Formal Relation:Formal official relation is considered to be a prerequisite in order to make a valid agreement (Black, H. C. 1979). Personal or casual affirmation cannot be considered as a formal contract, such as; an individual gave promise to another person that he would give him some money but he did not mention when. So, it will not be considered as an agreement because there was a lack of formal relation. v. Writing and Registration:To make the agreement legitimate, an official contract has to be prepared in written form and registered by the government administration (Black, H. C. 1979). vi. Enforceable by Law: A valid agreement is enforceable by regulation; else it will be advised as the event of break of contract (Black, H. C. 1979). vii. Certainty:It is very important that each and every component of an agreement is certain so that each party is able to recognize the matters considering the contract (Black, H. C. 1979). viii. Possibility of Performance:A valid agreement should have the possibility of presentation because if the agreement is incapable of performing the matters, then it will not be advised as a contract (Black, H. C. 1979). 1.2 THE IMPACT OF DIFFERENT TYPES OF CONTRACT There are many types of contracts that are; Implied Contact:To pattern a legitimate agreement free consent is significant of the both parties. But in case of implied agreement it will be advised as a legitimate agreement if one party does not give permission(Black, H. C. 1979). This type of contracts occurs when an individual behave like he/she owns any assets and sellthose assets. For example; if a servant deals his or her proprietor’s stuffs as if s/he is the proprietor of the assets without the free permission of the proprietor then it will be advised as an implied contract. 4|Page
Contract under Seal:The customary method of making an agreement legitimate is the closing of the lawful article that is enforceable(Black, H. C. 1979). It is important to mark the documents with seals and the both parties are liable to accept the outcomes of the affirmation after it is sealed. Executed Contact:It is a type of agreement where both parties execute the terms and conditions of the contracts before they go in to an agreement and there is not anything to be worked out by each party(Black, H. C. 1979). The performance of the parties signifies that there is no agreement, and then it is a performed contract. Express Contract:Express contract is one of the numerous kinds of contracts where it is either in the formation of a written document or it can even be in the oral pattern which is accepted to the authority that focuses on the permission to terms (Black, H. C. 1979). Unconscionable Contact:It is an agreement in which both parties are alarmed about the agreement but one party gets the higher advantages than the other (Black, H. C. 1979). This type of agreement is unenforceable because there is lack of free permission from one of the party. 1.3 ANALYSIS OF TERMS IN CONTRACTS There are numerous objectives of agreements. It is significant for the parties to understand the distinct types of agreements, terms, and componentswhich not only helps the parties to comply with the agreement but furthermore assists to diminish agreement administration charges (Bucher, C.A. 1983). Major alterations are essential to align the emplacement affirmation. The TAM’s college is endeavoring to become one of the best educational institutes of United Kingdom. So, they are trying to capture the attention and hiring agencies and lawful advisors to help them with the mission. In order to become the best educational institute in United Kingdom, they are going into agreements with some bureaus for their marketing reasons and solving the legal matters. To pattern a legitimate agreement there should be some dissimilarity amidst the exchanging of terms, concerns and bargaining of the parties and TAM’s college is endeavoring to bring the differences. 5|Page
Task 2 2.1 APPLICATION OF THE ELEMENTS OF CONTRACT The parties must respect the terms and conditions of the agreement and if one party or the other party disagrees from the promise of affirmation then the party respecting the affirmation can go to court and take lawful actions (Cite man, 2011). A valid agreement is enforceable by law. The basic elements of the contract with NAMS are: Offer Acceptance Free consent Formal relation Valid contract is enforceable by law To assist TAM’s to be one of the best educational institutes in UK; NAMS provided them boasts for intensive promotion for one month. Offer is the initiation of an agreement with another partyin an official valid agreement. To make a legitimate contract the terms and conditions of the contract has to be accepted by the parties taking part in an agreement, else it will be considered as a void agreement. NAMS marketing offer for one month has been acknowledged by TAM’s college and they paid the initial fee of £2500. Both the parties in the agreement went into the agreement with free consent andthe agreement was in a written form to make the contract a formal contract. 6|Page
The administration of TAM’s college has the authority and confirmation that NAMS has breached the affirmation and the primary term. NAMS were unable to supply marketing assistance to TAM’s college so that, the TAM’s college has taken lawful activities against NAMS.Thus it can be said, legitimate agreement is enforceable by regulation. 2.2 APPLICATION OF THE LAW No sooner hadtwo or more parties made anagreement then there are some vital components that were needed to be advised in order to make a legitimate contract (Cite man, 2011). The parties engaged in contract give self-assurance and boost the terms and conditions of a contract. Attitude of the parties may differ from the affirmation which was presumed to be in use as just a predeclaration of the valid contract and consequently not part of the agreement (DiMatteo, L. A. 1998). Parties to an agreement follow only its terms, not by any insignificant declarations that may not be accomplished. Requirementsneeded to form a valid contract are: 7|Page
Collateral Contracts It is a type of contract in which the terms and conditions are normally in a written form as the basis of the agreement. Where the declaration have been conceived and intended as to make certain to induce the main agreement. Jury has been coordinated to find a security convention someplace to make the contract valid and beneficial for the parties acquiesced upon the agreement (DiMatteo, L. A. 1998). Contract Includes Conditions and Warranties The more imperative conditions are describing "Circumstances", the lesser significant conditions are called "Warranties”. These parts are so significant that without any one or supplementary conditions, the parties would not proceed into the agreement. As a result, to construct a circumstance incorrectly, or to break a condition, is examined so vigorously and considered as a mistreated confirmation. The agreement itself motivates both the parties. The court examines at each case on its own deserves. In making a conclusion as to if a term is a condition or a warranty; the court will address all the surrounding circumstances, encompassing the seriousness of the consequences if the contract is held to be non-binding and the aims of the parties at the time they made the contract (DiMatteo, L. A. 1998). Figure: Requirements of a Valid Contract Exclusion of responsibility of the terms: “Prohibiting Paragraph”can be defined as the agreement can be made where other associations are likely to have a term in the contractthat skip one of the party’s accountability and may proceed wrong in the presentation of the agreement or limits on that accountability (DiMatteo, L. A. 1998). Founded on the scenario, a prohibiting clause from “Responsibility” for ruin done to the TAM’s marketing crusade by NAMS might be included in the affirmation between NAMS and TAM’s college. 8|Page
2.3 EVALUATION OF THE EFFECT OF DIFFERENT TERMS There are many terms and conditions encompassed in the agreements and some of them are for rules and regulations (Okeke, C.N. 1988). These terms and conditions are the formation of agreement and it is necessary to be in a written form and the seal is needed. There are many kinds of regulation and it requires diverse types of formalities. Establishing Implied Terms There are some situations in which agreements need to institute the inferred terms formally and it is made from one individual to another individual (Okeke, C.N. 1988). The Patrol Evidences Rule Various Types of It is a function that Conditions encompasses oral evidences. Oral evidence might not be added or shown to be a false in writing item (Okeke, C.N. 1988). The contract habitually endeavors to the law of confirmation and applies not only to contracts but also to all kinds of credentials. Various types of situation may affect the agreement and practical judiciousness of word is good for central grouping of contractual sign (Okeke, C.N. 1988). The preparation for committing a breach of circumstance at universal regulation is refutation and indemnity. The Up-To-The-Minute Observation The violation of a circumstance permits the overhead misgiving accumulating to reckless cost to the agreement as rejected, overindulgence in the agreement and the parties are endow to compel to the activities and presentation (Cite man, 2011). In the granted position, TAM’s college has established an implied contract with NAMSand agreed to supply the marketing agreement to NAMS on the basisof their oral evidence of strong marketing and promotion for one month for £6000. 9|Page
Task 3 3.1 CONTRASTING LIABILITY IN TORT WITH CONTRACTUAL LIABILITY Tort and contact liability: "Law of Obligations" includes the regulation of tort and of agreement, but the law of tort concerns to every individual that it is relevant to, while in the regulation of contract or in trusts obligation is "Voluntarily Assumed" (DiMatteo, L. A. 1998). While the tort damages are compensatory, contract damages are established on losses that are expected. 3.2 THE NATURE OF LIABILITY IN NEGLIGENCE i. Duty:The duty is an obligation of one individual to another individual, it is conceived form the communal desires and beliefs(DiMatteo, L. A. 1998). The glue of communal obligation is the threaded that binds humans to one another in assemblies where preferences are advised inappropriately if they contravene a pre-existing impulse and restore hastily. ii. Cause in Fact:A small number of trouble are more fascinating, with tenacity more vague then causation. Based on the surrounds and performances an individual might select to take steps and avoid doing silly dramatics in assured(DiMatteo, L. A. 1998). iii. Breach of Contract:In the contract tort of negligence,breach of agreement is considered the most significant thing. It is the demeanour of the people to proceed as areckless individual or party and not performing the agreement terms and conditions(DiMatteo, L. A. 1998). This element implies the pre-existence of a standard of correct demeanour to avoid imposing undue risks of damage to people. NAMS has breached the agreement when they have halted the promotion and marketing of TAM’s college for one week. 3.3 VICARIOUS LIABILITY IN BUSINESS Generally, a company will be responsible for any tort pledged while a worker is conducting their obligations.It is a doctrine of English tort regulation that imposes firm liability on employers for the wrongdoings of their employees (Leibee, B. C. 1976). Vicarious responsibility refers to the fact that anybody can be detained legally or to blame for the lacking concentration actions of a distinct one-by-one even regardless of the fact that someone overwhelms no mistake in furtherance of the inattentive or tortuous acts(DiMatteo, L. A. 1998). 10 | P a g e
In the granted scenario the administration of TAM’s college fell in the doctrine of vicarious liability because lawful actions have been taken by the guard’s family against the institution. Though to avoid woundsthe administration and the supervisors were alerted about the misfortunes and were furthermore suggested to wear proper clothing for the non-teaching staffs. The administration refused to give any reimbursement to the staff thatwasinjuredas he did not listen to the organization’s policies,but because of the doctrine of vicarious liability the TAM’s college are compelled to pay the compensation. 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 ensure that they do not suffer from any awkward harm and deficiency. If such obligation is broken, a legal liability is imposed (Leibee, B. C. 1976). TAM’s college workers were alerted about the harm and deficiency that the employees might face. Tort negligence law:the basic purpose of negligence regulation is to command and protect the workers from wounds related to their line. It is a pattern of regulation in which it is founded and operated in the realm of intentional tort regulation. TAM’s college’s non-teaching employees were suggested to use shielding apparel for their security (Leibee, B. C. 1976). A legal liability is imposed if such duty is breached that an individual may owe to ensure that they do not suffer from any unreasonable harm. TAM’s college employees were warned about the harm and losses that the employees might face. 11 | P a g e
Potential sources of negligence • Inadequate protection • Poor selection of activities • Hazardous conditions • Use of faulty equipment Defence against Negligence • An act of God • Sudden emergency • Assumption of risk Potential sources of negligence are: Inadequate protection:It is negligent behaviour on part of the person who is unwilling to wear protective gears (Emenike, E.U.I. 1989). 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). Hazardous conditions: Hazardous conditions are unpredicted and unavoidable (Emenike, E.U.I. 1989). Use of faulty equipment:Negligence is using faulty equipment can also cause harm (Emenike, E.U.I. 1989). Defence against Negligence: An act of God:Human beings cannot control these kind of situations. This assumption is only applicable when adequate safety measures are taken to avoid injuries (Emenike, E.U.I. 1989). Sudden emergency: It refers to any act of abrupt action to help the person in danger. Such as, attempt to rescue a drowning person in the water is an act of sudden emergency (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). 12 | P a g e
4.2 APPLICATION OF VICARIOUS LIABILITY Supervisors have the inherent power to control over the workers and the supervisors were requested to maintain the right apparel and proper defending gears of the non-teaching staffs. But in this scenario the supervisors did not follow the instructions and lead one of their staffs to duty without correct apparel (Hofstra, 2012.). On the other hand, vicarious blame means that any person can be detained legally to blame for the inattentive actions of a different person. In this case the supervisors were inattentive to the directions and that lead one of the staffs to get hurt. But the administration of the TAM’s college will be found to blame because of vicarious liability doctrine. The TAM’s college has enforced the wearing for college’s non-teaching staffs in alignment to stay away from future accidents. Although the senior supervisors have overlooked the alert and he has dispatched off a night guard on obligation without the correct apparel. It is against the institute’s principle.The administration denied the reimbursement to the employee because he was not following the directions of the TAM’s college. But under the vicarious liability doctrine an employee may be faulty but TAM’s administration will be lawfully to blame for the staff’s wrong doing. Conclusion TAM’s college has nominated lawful advisors in order to deal with the lawful matters that are promisesto threat for them. They furthermore have an ambition of being the best institute in the UK and for this reason they were hiring bureaus to encourage their college and endeavouring to capture the attention of the students who likes value education with the largest facilities. NAMS marketing conferring firm gave the brightest offer that they can use comprehensive marketing tool and promote the college title for one month only for £6000. NAMS had to stall the trading program due to financial matters and TAM’s college were not happy about it and they have taken legal activities against NAMS trading firm based on the primary periods of NAMS. On the third scenario TAM’s college was liable to pay a reimbursement for an incident with one of their staff that they have denied because of the staffs negligent proceed against the policies of the college. As an outcome TAM’s had to face legalactions and dropped in to an English doctrine. 13 | P a g e
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. Cite man, 2011. “The Evolution of Contractual impact” (Online) available at :<http://www.citeman.com/4121-essential-elements-of-a-valid-contract.html(Accessed on December 13, 2013) 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. 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 29, 2013) 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. 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. 14 | P a g e
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