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Ac 9

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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 Based on the scenarios TAM’s college was looking forward to the future potentialities of the institution and hired legal advisors to solve the future risks that might arise. TAM’s college also went in to a contract with NAMS marketing firm to promote and reach out to the mass people of United Kingdom. On their quest of becoming one of the best educational institutes TAM’s college had to face many challenges and penalties. One of the non-teaching staff of TAM’s college had got into an accident and the management of the college was liable to compensate the staff. But the college authority denied the claim and faced lawsuit against them. 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 ...................................................................................................................................................................... 10 3.1 CONTRASTING LIABILITY IN TORT WITH CONTRACTUAL LIABILITY .................................. 10 3.2 THE NATURE OF LIABILITY IN NEGLIGENCE ................................................................................. 10 3.3 VICARIOUS LIABILITY IN BUSINESS .................................................................................................. 11 TASK 4 ...................................................................................................................................................................... 12 4.1 APPLICATION OF THE TORT OF NEGLIGENCE AND DEFENCES ............................................... 12 4.2 APPLICATION OF VICARIOUS LIABILITY .......................................................................................... 13 CONCLUSION .......................................................................................................................................................... 15 REFERENCES .......................................................................................................................................................... 16 3

TASK 1 1.1 ESSENTIAL ELEMENTS OF A VALID CONTRACT The elements that are part and parcel of the contract need to perform with dedication by the parties participating in the contract. These elements have significant value to the contract. There are six elements of valid contract. And they are: 1. Offer and Acceptance 2. Lawful Consideration 3. Free Consent 4. Writing and Registration 5. Certainty 6. Enforceable by Law Figure: Essential Elements of Valid Contract  Offer and Acceptance: In a legitimate contract an offer has to be made and it is the prime step inside the main heading of an affirmation (Collins, Hugh. 1999). Chased by the interested party the other party has to accept the offer to make the agreement valid.  Certainty: Certainty has to be present in the formation of a valid contract because if the elements of the contract are certain then the parties participating in the contract are able to realize the issues described in the contract (Hare, J. I. Clark. 2003). 4

 Free Consent: In an agreement the parties involved in the agreement must provide free consent otherwise the agreement will be considered as a void agreement (Black, H. C. 1979).  Lawful Consideration: When the person accepting the offer takes conclusion on the basis of some lawful consideration (Bucher, C.A. 1983).  Writing and Registration: A formal contract has to be in written and registered by the government authority to make the contract valid (Marsh, P.D.V. 2001).  Enforceable by Law: A valid contract is enforceable by law otherwise it will be considered as the event of breach of contract (Collins, Hugh. 1999). 1.2 THE IMPACT OF DI FFERENT TYPES OF CONTRACT There are many types of contracts that are;  Executed Contact: Executed contracts means that both parties have executed the terms and situation of the affirmations before they go in to a agreement and there is nothing to be worked out by any of the party (Black, H. C. 1979).  Unconscionable Contact: It is a kind of affirmation in which both parties are anxious about the agreement but one party gets the higher advantages than the other (Bucher, C.A. 1983). This kind of affirmations is unenforceable because there is need of free permission from every party.  Contract under Seal: It is important to assess the article with diverse closures and the both parties are liable to accept the outcomes of the affirmation after it is closed. To make a legitimate agreement the lawful items are have to be closed so that they are enforceable by law (Marsh, P.D.V. 2001).  Express Contract: It is one of the many types of agreements in which the formation is either in the formation of a written article or it can even be in the oral pattern which is accepted to the ruling body that focuses on the permission to periods (Collins, Hugh. 1999).  Implied Contact: To build a legitimate affirmation free consent is significant (Marsh, P.D.V. 2001). Although just in case of implied agreement it is to be suggested as a 5

legitimate agreement if one party does not offer free consent. This kind of agreements occurs only when a person pretends to have any assets and sell it. 1.3 ANALYSIS OF TERMS IN CONTRACTS Major alterations are essential to align the emplacement affirmation. It is important for the parties to realize the different types of affirmations, terms, components, and signals which not only assists the parties to comply with the agreement but also assists to dwindle agreement administration allegations (Bucher, C.A. 1983). There are numerous objectives of agreements. TAM’s are going into agreements with some bureaus for their trading reasons and solving the lawful affairs in order to become the best educational institution in UK. So, they are endeavoring to apprehend the awareness and letting agencies and lawful advisors to help them to the quest. The TAM’s college is endeavoring to become one of the best educational institutions in UK. To make a legitimate affirmation there should be some dissimilarity amidst the swapping of time span, considerations and bargaining of the parties and TAM’s is endeavoring to express the dissimilarities. 6

TASK 2 2.1 APPLICATION OF THE ELEMENTS OF CONTRACT The parties must respect the terms and position of the agreement and if one party or the other party differs from the promise of affirmation then the party honoring the affirmation can go to court and take lawful activities (Marsh, P.D.V. 2001). A legitimate agreement is enforceable by regulation. The basic elements of the contract with NAMS are: Offer Acceptance Free consent Formal relation Enforceable by law Figure: Basic Elements of Valid Contract NAMS provided the offer of intensive advertisement for one month to make TAM’s rank high and aid them in becoming one of the best informative associations in the UK. In a prescribed legitimate contract offer is the initiation of an agreement with another party that builds a formal relationship. Both the parties in the agreement entered into the agreement with free consent and in a writing documentation turned the agreement in a prescribed relation. TAM’s college has accepted the 7

NAMS trading offer for one month and paid the primary fee of £2500 and entered in to a legitimate contract. Because in alignment to make a valid contract the periods and conditions of the contract have to be acknowledged by the parties taking part in an agreement, otherwise it will be considered as a void agreement Legitimate agreement is enforceable by regulation. NAMS were incapable to supply swapping aid to TAM’s college so that the TAM’s college has taken lawful undertakings against NAMS. The management of TAM’s college has the confirmation that NAMS has breached the agreement affirmation and the primary term. 2.2 APPLICATION OF THE LAW Crucial components that are important in order to make a legitimate affirmation need to be advised (Marsh, P.D.V. 2001). Approach of the parties may conflict from the affirmation terms which were presumed to be in use as just a pre-declaration of the legitimate affirmation and consequently not part of the affirmation (DiMatteo, L. A. 1998). The parties involved in an agreement give self-assurance and increase the terms and conditions of an agreement. Parties to an indenture pursue only its time span, not by any minor declarations that may not be completed. To form a valid contract certain requirements are needed. Such as;  Collateral Contracts It is one kind of contract in which the terms and situation are commonly in writing as the cornerstone of the agreement. Where the declaration have been created and intended as to make certain to induce the main contract (DiMatteo, L. A. 1998). Judges have been coordinated to find out a security principle someplace to make the agreement legitimate and beneficial for the parties acquiesced upon the contract.  Contract Includes Conditions and Warranties The more imperative periods are describing "Circumstances", the lesser amount 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. As a result, to construct a circumstance incorrectly, or to break a condition, is examined 8

so unsafely and considered as a mistreated agreement (DiMatteo, L. A. 1998). The indenture itself supplies motivation to the both parties. The court examines at each case on its own deserves. In making a conclusion as to whether a period is a condition or a warranty, the court will address all the surrounding attenuating factors, encompassing the gravity of the consequences 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 There are many terms included in the affirmations and some of them are only for formalities (Okeke, C.N. 1988). These are formation of agreement and it is essential to be in a written and the close is needed to set up it. The Patrol Evidences Rule • It is a function that embraces oral evidences. Oral evidence may not be adduced to adjoin to state thet they are not shown to be a false in composing article (Okeke, C.N. 1988). The agreement habitually endeavours to the law of confirmation and concerns not only to agreements but also all kinds of credentials. Establishing Implied Terms • There are some positions in which agreements need to be established and the inferred terms formally and it is made from one individual to another individual (Okeke, C.N. 1988). Various Types of Conditions • Varied types of position may sway the agreement and technical judiciousness of the phrase is a good allowance of central grouping of contractual expression (Okeke, C.N. 1988). The groundwork for committing a breach of circumstance at universal guideline is refutation and indemnity. Figure: Effects of Different Terms 9

The Up-To-The-Minute Observation In the allocated position, TAM’s college has agreed to give NAMS the contract founded on their oral evidence of powerful marketing and promotional devices for one month only for £6000 and established an inferred affirmation between TAM’s college and NAMS. TASK 3 3.1 CONTRASTING LIABILITY CONTRACTUAL LIABILITY IN TORT WITH Tort and contact liability: The guideline of tort and of contract is categorized as part of the "Law of Obligations", but the regulation of tort concerns to everyone that it is applicable to, while in the guideline of affirmation or in trusts obligation is "Voluntarily presumed" (DiMatteo, L. A. 1998). Affirmation damages are founded on deficiencies that are anticipated, while tort damages are compensatory. 3.2 THE NATURE OF LIABILITY IN NEGLIGENCE 1. DUTY: The glue of communal duty is the threaded that binds humans to one another in groups where preferences are advised unsuitable if they disobey a pre-existing impulse and refurbish carelessly (DiMatteo, L. A. 1998). The obligation is a sense of obligation of one person to another; it is created pattern the communal yearns, beliefs and diverse types of belief. 2. Breach of Contract: Break of affirmation is most important thing in the affirmation tort of negligence. It is the behaviour of the people to proceed as an irresponsible perosn or party and not accomplishing the agreement periods and situation (DiMatteo, L. A. 1998). This component proposes the pre-existence of a benchmark of correct demeanour to bypass enforcing undue hazards of impairment to people. NAMS has broken the affirmation when they have halted the selling of TAM’s for one week. 10

3.3 VICARIOUS LIABILITY IN BUSINESS It is a doctrine of English tort law that imposes firm liability on employers for the wrongdoings of their employees. Usually, an overseer will be held liable for any tort pledged while a worker is bearing out their obligations (Chen L., Law S. and Lee S. 2003). Vicarious responsibility means that a the employer can be detained lawfully to accuse for the inattentive activities of a distinct worker even regardless of the detail that someone swamps no error in furtherance of the inattentive or tortuous actions (John W. 2009). TAM’s college has fell in the doctrine of vicarious liability because of the evening guard’s family has taken legal activities against the organization. Though the management and the supervisors were notified about the misfortunes and were also proposed to wear shielding apparel for the non-teaching staffs to bypass injuries. The workers who got injured did not maintained the organization’s principle so the management denied giving any reimbursement to the casualty but the management of TAM’s college are compelled to pay the reimbursement because of the doctrine of vicarious liability. 11

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 kind of regulation throughout which it is sustained and functioned inside the realm of intentional wrongful conducts of law and furthermore the rudimentary cause of negligence regulation, is to organize and defend the workers from wounds associated to their line (Leibee, B. C. 1976). TAM’s college’s non-teaching workers were urged to use protecting buyer items for his or her security and security. Duty of Care: An individual could owe a compulsion of care to make certain that they are not bearing from any awkward injury. If such obligation is broken, a lawful liability is implemented. TAM’s college staffs were warned in relation to the injury and deficiency that the employees may face (John W. 2009). Sources of Negligence: Negligence will be distinguished as malfunction to require correct care of precaution. It is the unintentional break of a lawful obligation starting impairment fairly predictable while not that the break would have not occurred. Potential sources of negligence • Poor selection of activities • Use of faulty equipment Defence against Negligence • Assumption of risk • Sudden emergency • An act of God Figure: Sources of Negligence 12

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).  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). Defence against Negligence:  Assumption of risk: It is assumed that a person takes measure of the risks when engaging in activity (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).  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). 4.2 APPLICATION OF VICARIOUS LIABILITY The TAM’s management has enforced the carrying the proper guideline and apparel for college’s non-teaching staffs to bypass future misfortunes. Though the skilled supervisors have unmarked the alert and he has dispatched off a night guard on duty while not the correct attire. It is against the enterprise policy. Supervisors has the inherent administration to order over the employees and the supervisors were asked to sustain the right clothing and correct keeping safe gears of the non-teaching staffs (Collins, Hugh. 1999). But in this scenario the supervisors did not pursue the instructions and lead one of their staffs to obligation without correct clothing In this case the supervisors were inattentive to the instructions and that lead one of the staffs to get injured. However, vicarious responsibility means that any person can be detained legally to blame for the inattentive actions of a different person. But the authority of the TAM’s college will be discovered responsible because of vicarious liability doctrine. 13

The administration rejected the compensation to the employees because he was not following the rules of the TAM’s college. But under the vicarious liability doctrine no issue how defective the staffs are the TAM’s authority will be legally to blame for the staff’s wrong doing. 14

CONCLUSION TAM’s college authority have to face legal actions from one of their non-teaching staff because the administration of TAM’s college have refused the reimbursement for the hurt worker because the employees was not following the management’s orders and ignored the organizations polices. In the earlier situation TAM’s college went in an affirmation with the NAMS to market the possibilities of the college but the firm was incapable of supplying the service and TAM’s college took lawful actions against them. 15

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. 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. 16

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