business law assignment
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Acknowledgement
It is very much helpful to me the guidance and directions
of the all that makes me inspire with this great effort
and I would be very much thankful to all of them for
giving me their invaluable support here.
I would prefer to give my sincere gratitude
to......................................for him the
continuous directions and guidance as well as the well
supervision on this project completion.
Also I give my heartiest thanks for all my colleagues who
help me with their valuable efforts on this success.
Thank you.
.................
Page 1 of 77
Executive summary This is an information and logical task on business law.
The information is written as an assignment of business
law of the ............ semester for the evaluation of
our attentive and knowledge of the resource.
I have also collected the related resulting data from
various sources like magazines, books and Internet and.
Based on the relevant data, relative analysis has been
done so as to find out the areas of brightness. The areas
of quality and progress have been identified based on
accurate information.
Page 2 of 77
Table of Contents
Task 1 1.1 explain essential elements of valid contract by
relating to the above scenario
04-16
1.2 explains different types of contracts and explains
their impact any special rules need to be considered.
17-20
1.3 explain terms of contract their meaning effects. 21-24
TASK 22.1 apply the elements of contract in the scenario of
Alan and cath.
25-25
2.2 evaluate the effect of different terms in given
contracts.
26-26
2.3 evaluate the effect of different term in given
contracts.
27-28
Task 3 3.1. Differentiate tort liability with contractual
liability.
29-30
3.2 explain negligence in law of tort with other
concepts associating with it.
31-35
3.3 explain vicarious liability and its role in the
business context.
36-38
Task 4
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4.1 apply the rules on tort of negligence and comment
whether Ciara can claim damages from Arthur Anderson.
39-44
4.2 analyse the situation to decide whether the company
is vicariously liable for the action of Mr. plenty
45-48
Conclusion....................................................
..............................................................
..49-49
Reference.....................................................
..............................................................
...50-50
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Task 01
1.1. Explain essential elements of valid contract
according to contract law.
A contract is a legally binding or valid agreement between two
parties. A contract is an agreement which will be enforced be
the law. This Definition is satisfied when the following
elements are present:
There must be an agreement. Since nobody can agree with
himself (though he may resolve to do or do an act), there must
be at least two parties to an agreement. One of them will make
an offer, and other in every respect, there is agreement
between the parties.
The parties must intend their agreement to result in legal
relations. This means that the parties must intend that if one
of them fails to fulfil a promise undertaken by the agreement,
he shall be answerable for that failure in law. It is evident
that not all agreement is intend to produce legal
consequences.
If, for example,
John agrees to lend his cycle to his friend Arun but later
refuses to let him have it, an action for damages will not lie
against John because the two friends did not con-template,
when entering in to the agreement, that it should be
enforceable in law. Similarly, if a father fails to pay his
son the promised pocket money, it is obvious that the son
cannot sue the father. The former agreement is of purelyPage 5 of 77
social character, the latter is a domestic arrangement.
Neither of these agreements qualifies as a contract.
English law is not content with these two requirements.
It requires further that either consideration must be
present or that the contract should be in a deed.
The parties must have capacity to contract.
The reality of the contract must not be affected by
circumstances which render the contract unenforceable,
voidable, void or illegal.(charlesworth’s business law fifteenth
edition Paul Dobson Clive M.Schmitthoff p.3)
Formation of contract
The essence of contract is that there should be an agreement
between the contracting parties. This agreement is normally
constituted by one party making an offer and the other
indicating its acceptance. The acceptance must correspond to
the offer in all material aspects. The negotiations between
the parties need not always lead to a contract. Inquiries may
be made or offers invited but no offer may be made or, if one
is made, it need not be accepted. Before the concepts of offer
and acceptance can be considered in detail, it is necessary to
distinguish certain statements preliminary to the offer from
the offer itself. (Charlesworth’s business law fifteenth edition Paul Dobson
Clive M.Schmitthoff p.11)
Offer
An offer is a definite promise to be bound by specific terms.
It can be defined as–an n expressed or implied statement of
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the terms on which the maker is prepared to be contractually
bound if it is accepted unconditionally. An offer can be made
to a single individual, to a class of person or even to the
world at large. The offer can be accepted only by the person
or one of the persons to whom it is made to. The person who
makes the offer is referred to as the “offeror” and the person
to whom the offer is made to is referred to as the “offeree”
Hillas & co Arcas ltd.
The claimants agreed to purchase from the defendant 22,000
standards of wood of fair specification over the seasons of
1930.
There was also an option to purchase more in the year 1931.
The 1930 transaction took place but the defendant refused to
supply wood in 1931 saying the agreement was too vague. The
court believed that the offer was not too vague. The 1930
contract was regarded as evidence for the 1931 transaction.
The Acceptance
‘A positive act by a person to whom an offer has been made
which, if unconditional, bring a binding contract into
effect.’ The contract comes into effect once the offeree has
accepted the terms presented to them. This is the point of no
return; after acceptance, the offeror cannot withdraw their
offer and both parties will be bound by the terms that they
have agreed. Acceptance may be by express words, by action or
inferred from conduct. (Charlesworth’s business law fifteenth edition Paul
Dobson Clive M.Schmitthoff p.17)
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Brogden v Metropolitan Railway Co 1877
The facts: for many years the claimant supplied coal to the
defendant. He suggested that they should enter into a written
agreement and the defendant’s agent sent a draft to him for
consideration. The parties applied to their dealing the terms
of the draft agreement, but they never signed a final version.
The claimant later denied that there was any agreement between
him and the defendant.
Decision: the conduct of the parties was only explicable on
the assumption that they agreed to the terms of the draft.
Consideration
Consideration is an essential part of most contracts. It is
what each party brings to contract. A valuable consideration
in the sense of the law may consist either in some right,
interest, and profit or benefit accruing to one party, or some
forbearance, detriment, loss or responsibility given, suffered
or undertaken by the other. “From Currie v Misa 1875”
Example of consideration
Arun promises to give Baron GBP 100. Baron has to give nothing
in return. As there is no consideration, this is a graduations
promise and not legally enforceable.
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Valid consideration
Consideration may be executed (an act in return for a
promise) or Executory (a promise in return for a
promise). It may not be past, unless one of three
recognized expectations applies.
There are two broad types of valid consideration –
executed and Executory. If consideration is past then it
is not enforceable.
Executed consideration is an act in return for a promise.
The consideration for the promise is a performed, or
executed, act.
An offers reward for the return of lost property, his
promise becomes binding when B performs the act of
returning A’s property to him. A is not bound to pay
anything to anyone until the prescribed act is done.
Therefore in Carlill’s case, the claimant’s act, in
response to the smoke ball company’s promise of reward.
(ACCA, Corporate & business law p.68)
Intention to create legal relations
An agreement will only become a legally binding contract if
the parties indented this to be so this will be strongly
presumed in the case of business agreement but not presumed if
the agreement is of a friendly social or domestic nature.
Jones v Vernons Pools 1938
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The facts: the claimants argued that he had sent to the
defendant a football pools coupon on which his predictions
entitled him to a dividend. The defendants denied having
received the coupon. A clause on the coupon stated that the
transaction should not ‘give rise to any legal relationship…
but … be binding in honour only’.
Decision: this clause was a bar to an action in court.
Legal capacity of the parties to act Not all people are completely free to enter into a valid
contract. The contracts of the groups of people listed below
involve problematic consent, and are dealt with separately, as
follows:
People who have a mental impairment;
Young people (minors);
Bankrupts;
Corporations (people acting on behalf of a company); and
prisoners.
People who have a mental impairment Generally speaking, people are free to enter into contracts
even though they may have a mental impairment, or are
temporarily disabled by drugs or alcohol. They are, however,
sometimes vulnerable to being bound by contracts they do not
fully understand. The question of capacity to make the
contract often arises only after the contract is in place.
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People with disabilities and their advocates will find some
protection in the rule that a contract is not valid and
enforceable unless there was genuine consent to its making.
Capacity to give consent involves a general understanding of
the nature of the contract (not necessarily its fine details).
A person with a mental impairment, for example, may have the
capacity to understand some contracts (for example, buying a
loaf of bread), but not to understand other, more complicated
contracts (for example, buying a car on credit). Where a
person with a disability did not understand the general nature
of the contract, a court can intervene to set aside the
contract only if: The other party knew (or ought to have
known) of the disability or lack of capacity and it would be
unfair for them to take advantage of that; and The benefit
received by the other person has not been sold to a third
party who did not know the previous transaction might not be
valid. Generally, to escape the consequences of a contract,
the other party should be notified of the intention not to be
bound by the contract within a reasonable time.
Binding contracts and young people
Contracts for the supply of "necessaries" will generally be
binding. There are no hard and fast rules to identify what is
"a necessary", but it does include the sorts of things the
young person needs to live a reasonable lifestyle. It includes
basics such as:
Food
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Clothing
A place to live
Medicine And so on.
It will also include any contracts relating to the young
person's education, apprenticeship or something very similar,
if it can be shown to be of benefit to the young person. While
a court has not yet considered the issue specifically, mobile
phones are probably not necessaries. The young person
contracting in this situation will be held bound to pay a
reasonable price (although that may not be the contract price)
for necessaries actually sold and delivered. ("Delivery" is a
technical term. Generally, delivery takes place when the
seller has given the buyer the power to take the goods away.)
Where necessaries have been sold but there has been no
delivery, the young person does not have to take delivery or
pay for the goods.
Non-binding contracts and young people Two classes of contracts are not binding on a young person,
namely:
Contracts which are not for necessaries; and
Contracts for the repayment of money lent or to be lent
(that is, any form of credit contract).
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Where a young person has already paid money under a non-
binding contract, that money will not be recoverable unless no
benefit has been received by the young person. The young
person can, however, refuse to make any further payments under
the contract. It is not certain who then own goods that are
not necessaries. It appears that they become the property of
the young person unless the young person has fraudulently
misrepresented their age. Even after turning 18, a person
cannot confirm a prior contract and then become bound by it.
Any money paid by a young person under such circumstances may
be recovered.
Bankrupt people are not deprived of their general capacity to
contract. During their imprisonment, prisoners may enter
contracts, including contracts to buy and sell prison still
apply, so that the permission of Corrections Victoria is
required before a prisoner may sign for, deliver or receive
any document.
Consent of the Parties
Entering into a contract must involve the elements of free
will and proper understanding of what each of the parties is
doing. In other words, the consent of each of the parties to a
contract must be genuine. Only where the essential element of
proper consent has been given is there a contract which is
binding upon the parties. The ultimate consequences of
establishing that no proper consent was given to enter thePage 13 of 77
contract are matters dealt with when considering remedies for
breach of contract. Proper consent may be affected by any of
the following matters:
Mistake;
False statements;
Duress; and
Undue influence/un-consiconability.
Mistake
Only a few types of mistakes will cause the contract to be
non-binding on the parties to it: they must be mistakes that
go to the very basis of the agreement. For example, where
there is a contract for the sale of a car that both parties
assume to exist, although in reality it has been destroyed by
fire, this contract is non-binding on the parties. By
contrast, where the parties are only mistaken about the model
of the car, then this contract would be binding.
Another example is when a person signs a written document
mistakenly believing that it relates to something entirely
different from what in fact it does relate to, in this case
the person will not be bound by it. This means that if X is
told to sign a document which X reasonably believes to be
something like a character reference to assist Z to obtain a
loan from a finance company, and the document is later
discovered to have been a guarantee of the loan contract, then
the guarantee will not be binding on X.
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A third example is when Y cannot read, due to blindness or
illiteracy or other disability. Someone else tells Y what is
in the document and Y signs it. The document Y signed is not
what Y was told it was. The document Y signed would not be
binding on Y.
By contrast, if a person who signs a document believing it to
be a contract does not read the terms and conditions that
person will be bound by the contract and will not be entitled
to plead mistake.
Other factors may also be relevant to a successful plea of
mistake. For instance, whether or not the defence of mistake
will be allowed often depends on whether an innocent third
party will be adversely affected by a decision that the
contract is non-binding. Again, if the signer was careless and
failed to take reasonable precautions, the defence will not be
allowed to succeed. For these reasons, it is wise to seek
legal advice about whether or not a court would hold the
contract binding on these grounds.
False statements
There are serious false statements and minor false statements
that might be made by parties contracting with each other.
Different consequences flow, depending on the seriousness of
the false statement made. False statements might be made where
either:
The parties come to agree and contract because one of them has
been motivated to agree by a statement of fact (something said
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or written) that is not true. Commonly, these types of
statements have not actually been included in the contract
itself but were an encouragement to enter into the contract.
For this reason, they are viewed as though they were part of
the contract; and/or
The parties have agreed and there is a contract, but the
statements or terms in the contract exist only because one of
the parties has made a false statement.
False statements affect the question of whether or not a
contract exists. Very serious false statements mean a court
would view the contract as void (see: Glossary) and
unenforceable. The consequence is that monetary damages
sufficient to place the wronged party back to their original
position must be paid.
In other (less serious) instances, the court will find the
contract valid but the wronged party will be entitled to
reject the contract or to treat it as at an end. Here,
monetary damages sufficient to place the wronged party in the
position they would have been in, had the contract been
properly completed, must be paid.
Where a false statement has put the wronged party at a
disadvantage or caused some loss, but not enough damage has
been done to justify ending the contract, then the contract
will be valid and the wronged party will be bound to the
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contract, but entitled to sufficient monetary damages to make
up for the loss suffered as a consequence of the false
statement.
The two most important factors considered to determine the
level of seriousness at which a false statement will be viewed
are as follows.
The false statement: a condition or a warranty?
"Conditions" of a contract are so important that without them
one or other of the parties would not enter the contract. If a
false statement amounts to a condition of the contract, the
wronged party is entitled to rescind (see: Glossary) the
contract. A court may view the condition so seriously that
without it the contract is void; that is, with the false
statement taken out of the contract, there is no contract.
Less important statements are called "warranties". Where the
false statement amounts to a warranty, the wronged party will
only be permitted to receive sufficient monetary damages to
make up for any loss suffered; the contract will continue to
exist and the parties will continue to be bound by it.
What type of false statement was made?
There are three types of false statements:
fraudulent misrepresentation;
innocent misrepresentation; and
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Negligent misrepresentation.
Fraudulent misrepresentation
To prove fraud, it is necessary to show that the person making
the statement knew it was false, had no belief in its truth,
or knew it might be false and recklessly went ahead and made
it anyway, not caring whether it was true or false. It is very
difficult to prove fraud. Once proved, however, the innocent
party can rescind the contract; sue for damages for deceit, or
both.
Innocent misrepresentation
An innocent misrepresentation will be made where the false
statement is made with no intention to deceive. An innocent
misrepresentation could nevertheless be a serious false
statement (being a condition of the contract), or a breach of
warranty. The level of seriousness will be determined by an
appraisal of all the circumstances of the contract. If
innocent and without negligence, the only available remedy is
rescission
Negligent misrepresentation
A negligent misrepresentation will arise where a party to the
contract is under a special duty of care to the other party.
This special relationship will be held to exist where the
person making the false statement claimed to have some special
skill not generally possessed by an ordinary member of the
community, and where that person was prepared to exercise this
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special skill on behalf of the person to whom the false
statement was made. The wronged party must be able to show
that:
the person making the false statement could reasonably be
expected to foresee that the false statement would be
relied upon;
in the circumstances it was reasonable to rely on the
statement;
the statement was made without due care; and
The statement was false.
Once again, the level of seriousness of a false statement made
in these circumstances can vary. Where there is a serious
breach, the innocent party can rescind the contract and
recover damages for negligence.
Duress
Proper consent may be affected by duress. Duress is held to
have occurred where there has been actual or threatened
violence either to the other contracting party directly or to
their immediate family, near relatives or close associates.
The duress may be made by someone acting under the
instructions of the party to the contract. The net effect,
though, will have been that a party has been forced into the
contract by being deprived of their free will to act.
Duress now extends to contracts entered into as a result of
threats to a party's economic well being, that is, a threat to
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a person's business or trade. This form of duress is called
economic duress.
The consequence of establishing duress is often that the
contract is voidable at the election of the wronged party.
Where the wronged party elects to have the contract declared
void, monetary damages sufficient to place the wronged party in
their original position must be paid. Where the wronged party
elects to continue with the contract, monetary damages to
cover any loss suffered because of the duress must be paid.
Undue influence/Unconscionability
Proper consent may be affected by undue influence. Undue
influence is exercised by taking unfair and improper advantage
of the weakness of the other party, to the extent that it
cannot be said that that party intended voluntarily to enter
into the contract.
The main reason for the rule against the use of undue
influence is to correct abuses of trust and confidence. It is
applied where the parties are in a relationship where one
party may be able to exercise considerable influence over the
other party.
There are two categories of undue influence.
The first is where no special relationship exists, but the
stronger party will have used some fraud or wrongful act
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expressly to gain an advantage from the weaker party. The
weaker party will have to prove that undue influence was
actually exerted.
The second is where the parties are in a confidential
relationship; most cases of undue influence fall into this
category. A confidential relationship exists when one party's
position towards the others involves a dependency or trust, in
the form of authority or an expectation to give fair and
independent advice to the weaker party. Where a confidential
relationship is found to exist, a presumption of undue
influence will arise. It is then necessary for the stronger
party to show that the contract was not the result of any
undue influence.
A confidential relationship and the presumption of undue
influence can be established in either of two ways.
First, the parties may be in a well recognised special
relationship, for example, solicitor and client, doctor and
patient, religious or spiritual adviser and devotee.
Second, the confidential relationship, although not falling
within any well recognised relationship, is such that the
complaining party is able to show that the other party was in
a position of influence. For example, it could be the
relationship between a bank and its customer, because of a
special position of trust that the bank had come to occupy in
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connection with the conduct of this customer's affairs. (It
has been stressed, however, that in ordinary circumstances no
presumption of undue influence arises out of a banker-customer
relationship.)
Legality of the agreement
Being able to distinguish between the different categories of
contract is important as the consequences flowing from each
are different. Contracts can be illegal or void at both
statute and common law.
Categories of contracts
Figure 1 category of contracts
An agreement rendered void by statute is void and will not be
enforced by the courts. Any money paid or property transferred
under such an agreement may be irrecoverable. A ‘contract’
deemed illegal when it is formed is totally void. Illegality
may arise either because the contract is of a kind prohibited
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by statute, or because it is of a class regarded as contrary
to public policy. Neither party has any rights or remedies.
Consequences of statutory illegality depend upon when the
contract becomes illegal
Consequences of statutory illegality depend upon when the
contract becomes illegal. If it is illegal as formed, the
contract is void ab initio and property is only recoverable if
disclosure of illegality is not essential to the cause of
action. If the contract is illegal as performed, the contract
is void, but not void ab initio. The guilty party has no
rights, but the innocent party is little affected.
Contracts which would violate the social or moral attitudes of
the community and are void ab initio include:
contracts to commit a crime, a tort or a fraud on a third
party;
contracts that are sexually immoral or which prejudice
the status of marriage;
contracts prejudicial to the administration of justice
Contracts which would violate the social or moral attitudes of
the community and are void ab initio include:
contracts to the prejudice of public safety, or of good
relations with other countries;
contracts which tend to promote corruption in public life
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contracts to defraud the revenue; and
Contracts that involve a breach of duty.
Three types of contract are void at common law: Contracts which attempt to oust the jurisdiction of the
courts.
[Distinguish between contracts which are binding in
honour only (where the parties expressly declare that
they do not intend to create legal relations, e.g., Jones
v Vernon’s Pools Ltd ( [1938]) from contracts which
attempt to oust the jurisdiction of the courts];
Contracts prejudicial to the status of marriage; and
Contracts in restraint of trade.
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1.2. Explain different types of contracts and explains
their impact. Any special rules need to be considered.
The law recognizes that legally binding contracts can be
written, verbal, or a mixture of both. However, for business
purposes, written contracts are usually preferred due to the
following reasons:
The contents (‘terms') are in writing for all to see
They can ensure that precise language is used in
describing the terms of the agreement
There is, therefore, less opportunity for
misunderstandings and conflicting assumptions
There is less need to rely on memories of what was
originally agreed
The individuals involved in the transaction may change
over time.
Here are various types of contracts in business law depending
upon various legal transactions like transfer of property,
sale of goods, etc. A formal legal advice is always
recommended prior to making or accepting a business contract.
Let us take a look at the different types of contracts in the
words of business law.
Written contracts
If the contract has been formally written and signed by the
parties, there is an assumption that all the terms of the
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agreement are contained in the written document regardless of
what may have been verbally agreed. Additionally, contracts
can be a combination of written and verbal agreements if the
written agreement lacks detail and only covers very few terms.
Prior to signing, a written contract must:
Be presented to and understood by all parties to be
valid; and
Be recognized by all parties as a contract, that is, it
must look like a contract and not simply a receipt or
docket.
Also, once a contract is signed, it is assumed that all the
terms have been read and agreed to.
Express Contracts
In this type of contract, the parties to the contract state
the terms and conditions either by word of mouth or in script,
at the time of forming the contract. A definite written or
oral proposal of the contract is accepted by an offeree in a
way that plainly defines legal consent to the terms of the
contract.
Implied Contracts
Contracts indirect in actuality and contracts implied in law
are both an element of implied contracts. Other than a real
implied contract consists of firm obligations that arise from
a mutual agreement and goal of promise, which is not expressed
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orally. An implied contract cannot be labeled as implied in
law because such a contract lacks the requirements of a true
contract. The term “Quasi Contract”, is however, a more
specific recognition of contracts implied in law. Implied
contracts depend on the reason behind their existence. Thus,
for an implied contract to expand there must be some
transaction, act or conduct of a party in order for them to be
legally bound. A contract will not be implied if there are any
chances of harm or inequity. If there is no clarity of
message, implication and understanding between the two
parties, the court will not conclude any contractual
relationship between the two parties. If the parties continue
to follow their contractual terms, even after the contract has
ceased to exist, an assumption arises that the two parties
have mutually agreed to a new contract that has same
provisions as the old contract and a new implied contract is
formed.
Executed Contracts
An executed contract is termed as an agreement in which no
other business is missing out to be executed by either party.
This explanation could be incorrect to a certain point, since
completion of occupation will mean that the contract has
ended. But in case of executed contracts, there exists some
act or transaction or an obligation that has to be performed
at various point of time in the future according to the
contractual conditions.
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Bilateral and Unilateral Contracts
If two entities exchange a mutual and give-and-take promise
that implicates the completing of an act, an obligation or a
transaction or self-control from execution of an be active or
an obligation, with respect to each party involved in the
contract, is termed as bilateral contract in the verbal
communication of law. It is also called a two-sided contract
for the reason that of the two-way promises made by parties
concerned in the contract. An independent contract is agree
made by only one party. The offeror promises to execute a
definite act or an obligation if the offeree agrees on
performing a requested act that is understood as a legally
enforceable contract. It just requires an acceptance from the
other party to get the contract executed. Thus, this is a one-
sided contract since only the offeror is spring to the court
of law. One important point of this category of contract is
that, the offeree cannot be sued for abstaining, abandoning or
even failing to execute his act, since he does not promise
something.
Aleatory Contracts
A common agreement which comes into consequence only in case
of a happening of an uncertain event or a natural misfortune
is termed as an aleatory contract. In this type of contracts,
both the parties may take for granted risks. For example, a
fire insurance policy or a travel insurance is a type of
Aleatory contract as the procedure holder will not accept any
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benefits of the contract unless in an event of fire occurrence
or a plane crash (in case of travel insurance).
Unconscionable Contracts
Unconscionable contracts are persons that are unfair and
excessively one-way favors of the party who stand at a
superior end of the bargaining power. The word unconscionable
means an insult to impartiality and decorousness. No mentally
healthy and honest person would ever accept an unconscionable
contract and enter into it. Unconscionability of the contract
is gritty by analyzing the situations and circumstances of the
parties involved in the contract, when the contract was made.
This policy is applied only in cases, in which it would be
unjust or an affront to the integrity of the law system to
enforce a contract like that. The court of law has found that
unconscionable contracts are a result of utilization of
illiterate and bankrupt clients.
Adhesion Contracts
Union contracts are the ones that are drafted by a party who
has a better benefit in bargaining. This means that the party
who has a bargaining advantage leaves the other party with no
other option than to either accept the contract or to reject
it. Generally known as “take-it or leave-it” contracts, they
are often considered because for most of the businesses, it is
difficult to negotiate and bargain all the terms and setting
of every contract. It is not necessary that all adhesion
contracts are unconscionable contracts, since in some cases it
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is quite coincident for one party to have a superior
bargaining advantage leaving no alternative for the other
party. This often happens in monopolistic markets. However,
courts of law refuse to implement such contracts of adhesion
on the grounds that there was no mutual understanding or an
acceptance between the two parties involved in an adhesive
contract.
Void and Voidable Contracts
A void contract implies that the involved parties are not
liable to any legal obligations or rights, meaning that the
parties are not legally bound with reference to that contract.
In fact, a void contract means a contract has ceased to exist
and that there is no contract existing between the two
parties. A voidable contract, on the other hand, is an
agreement between any two or more parties that has a legal
binding. A voidable contract can be treated as never been
lawfully bound on a party that has been a casualty of
fraudulent execution or if that party was distress from any
legal disability. In addition, a contract is not void unless
and awaiting any of the involved parties, choose to pleasure
it as a void contract by confronting its execution.
Verbal agreements
Verbal agreements rely on the good faith of all the parties
involved and can be difficult to prove as opposed to written
contracts. The following are some ways in which verbal
agreements can be supported:
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The conduct of the other party both before and after the
agreement
Specific actions of the other party
Past dealings with the other party
As desirable as a written contract is, in certain situations
it may be counter-productive, such as:
If the value of the transaction is not particularly high;
and/or
The presentation of a substantial document, possibly with many
provisions, may raise more questions and uncertainty in the
minds of the parties involved than it resolves, often ending
in the transaction not proceeding.
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1.3. Explain terms of contract their meaning effects.
Earlier than toward the inside into a contract, a variety of
statement will often be made by one party in order to support
or induce the other party to enter into the contract. A
divergence may later arise as to which of the statements made
should be measured a part, or a term, of the agreement, and
which should be taken as simply pre-contract talk, and
consequently not a part or term of the contract. Parties to a
contract are bound only by its terms, not by any secondary
report that may have been ended. The judges can look at
verification of aim by one or other of the parties that the
ruling should be part of the contract. For form, the longer
the rest is between the assembly of the statement and the
success of the final contract and contract, the less likely it
is that the declaration will be considered to be a term of the
contract. The fact that the maker of the statement had a
special information or skill compare with the other party will
make the statement more likely to be a term. Anywhere the
agreement was subsequently reduced to writing and the report
was not included, it is less likely to be an experience.
Express term and implied terms.
As a general rule, the parties to a contract may include in
the agreement whatever terms they choose. This is the
principle of freedom of contract. Terms clearly included in
the contract are express terms. The law may complement or
replace terms by implying terms into a contract.
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Express terms
An Express term is a term expressly agreed by the parties to a
contract to be a term of that contract. In examining a
contract, the courts will look first at the terms expressly
agreed by the parties.
An apparently binding legal agreement must be complete in its
terms to be a valid contract.
Scammell v Ouston 1941
The facts: the defendants wished to buy a motor- van from the
claimants on hire- purchase. They placed an order ‘on the
understanding that the balance of purchase price can be had on
hire - purchase terms over a period of two years’. The hire –
purchase terms were never specified.
Decision: the court was unable to identify a contract which it
could uphold because the language used was so vague.
It is always possible for the parties to leave an essential
term to be settled by other means, for example by an
independent third party. (ACCA, Corporate & business law p.89)
Where an agreement appears vague or incomplete, the courts
will seek to uphold it by looking at the intention of the
parties: Hillas &Co Ltd v ARCOS Ltd 1932. If the parties use
standards printed conditions, some of which are inappropriate,
such phrases may be disregarded.
Nicolene v Simmonds 1953
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The facts: the claimant offered to buy steel bars from the
defendant. A contract was made by correspondence, in which the
defendant provided that ‘the usual conditions of acceptance
apply’. The defendant failed to deliver the goods and argued
that there had been no explicit agreement.
Decision: the words should be disregarded. The contract was
complete without these words; there were no usual conditions
of acceptance. (ACCA, Corporate & business law p.90)
Implied terms
Terms may be implied by the courts, by statute or by custom.
There are occasions where certain terms are not expressly
adopted by the parties. Additional terms of a contract may be
implied by law; through custom, statute or the courts to bring
efficacy to the contract. Implied terms may override express
terms in certain circumstances such as where they are implied
by statute.
An Implied term can be defined as follows.
A term deemed to form part of a contract even though not
expressly mentioned. Some such terms may be implied by the
courts as necessary to give effect to the presumed intentions
of the parties. Other terms may be implied by statute, for
example, the sale of Good Act.’
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Terms implied by custom
The parties may enter into a contract subject to customs of
their trade. Any express term overrides a term which might be
implied by custom.
Hutton v Warren 1836
The facts: the defendant landlord gave the claimant, a tenant
farmer, notice to quit the farm. Ha insisted that the tenant
should continue to farm the land during the period of notice.
The tenant asked for ‘a fair allowance ‘for seeds and labour
from which he received no benefit because he was to leave the
farm.
Decision: by custom he was bound to farm the land until the
end of the tenancy; but he was also entitled to a fair
allowance for seeds and labour incurred.
Terms implied by the courts
Terms may be implied if the court concludes that the parties
intended those terms to apply to the contract.
The Moorcock 1889
The facts: the owner of a wharf agreed that a ship should be
moored alongside to unload its cargo. It was well know that at
low water the ship would ground on the mud at the bottom. At
ebb tide the ship settle on a ridge concealed beneath the mud
and suffered damage.
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Decision: it was an implied term, thought not expressed, that
the ground alongside the wharf was safe at low tide since both
parties knew that the ship must rest on it.
A term of a contract which is left to be implied and is not
expressed is often something that goes without saying ; so
that, if while the parties were making their bargain an
officious bystander were to suggest some express provision for
it, they would say ‘why should we put that in? That’s
obvious’: this was put forward in Shirlaw v Southern Foundries
1940. The terms are required to give efficacy to the contract,
that is, to make it work in practice.
The court may also imply terms because the court believes such
a term to be a ‘necessary incident’ of this type of contract.
(ACCA, Corporate & business law p.91)
Liverpool City Council v lrwin 1977
The facts: the defendants were tenants in a tower block owned
by the claimants. There was no formal tenancy agreement. The
defendants withheld rent; alleging that the claimants had
breached implied terms because inter alia the lifts did not
work and the stairs were unlit.
Decision: tenants could only occupy the building with access
to stair and/or lifts, so terms needed to be implied on these
matters.
Where a term is implied as a ‘necessary incident’ it has
precedent value and such term a will be implied into future
contracts of the same type. (ACCA, Corporate & business law p.91
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Exclusion of responsibility terms
It is reachable to have a phrase in the contract which
excludes one of the parties on or later than accountability
for rather that may go incorrect in the concert of the
contract or borders that responsibility. It is called an
exclusion clause or an exemption clause. For example, an exclusion
beginning liability for dent done to the lawn by a builder's
backhoe might be included in a contract between the planner
and a home owner who is having an extension built to their
residence. The courts have normally taken the view that
exclusion clauses are unfair and have tried to limit their
giving in. Courts will by and large take to mean the exclusion
clause touching the meeting annoying to rely on it and, at the
smallest amount, comprehend it by a whisker. Everywhere a
contract is a manuscript signed by the parties, they will
generally be bounce by the exclusion clause in it. Anywhere a
contract is an unsigned document e.g. tickets, receipts and
dockets, the court will look at what a reasonable person would
take for granted the document to be. Only anywhere a
reasonable person would assume the document to be part of the
contract between the parties will the exclusion clause in the
document be able to be relied on. It must also be exposed that
the exclusion clause was brought to the notice of the other
party.
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Task 02
2.1. Apply the elements of contract in the scenario of
Alan and Cath.
An agreement must contain four essential elements to be
regarded as a contract. If any one of them is missing, the
agreement will not be legally binding. They are offer,
Acceptance, intention of legal consequences and Consideration.
The requirement of intention to create legal relations in
contract law is aimed at sifting out cases which are not
really appropriate for court action. Not every agreement leads
to a binding contract which can be enforced through the
courts.
Commercially based agreements will be seen as including a
rebuttable intention to create a legally binding agreement.
However, the law presumes that domestic or social agreements
are not intended to create legal relations. For example, an
arrangement between siblings will not be presumed to be a
legally binding contract. A person who wants to enforce a
domestic or social agreement will need to prove that the
parties did intend to create a legally binding agreement.
Given task 2, there is a written agreement between husband and
wife however depending on the circumstances even in domestic
agreements sometimes the intention to create legal relations
is presumed. These facts are same as Merritt v Merritt case.
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Merritt v Merritt [1970] EWCA Civ 6 is an English contract law
case, on the matter of creating legal relations. While under
the principles laid out in Balfour v Balfour, domestic
agreements between spouses are rarely legally enforceable;
this principle was rebutted where two spouses who formed an
agreement over their matrimonial home were not on good terms.
The Court of Appeal held that nature of the dealings, and the
fact that the Merritts were separated when they signed their
contract, allowed the court to assume that their agreement was
more than a domestic arrangement. Held that the decision in
Balfour v Balfour will not apply to this case, because in
Balfour v Balfour, the parties reached their agreement when
they were living in amity, but in this task 2, they negotiated
the terms when they decided to separate. Therefore a
reasonable person would regard their agreement as intended to
be binding in law. Therefore the husband wants to transfer the
house to wife’s name.
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2.2. Evaluate the effect of different terms in given
contracts.
Contractual terms can either be conditions, warranties or in
nominate terms. Traditionally, contractual terms were
classified as either conditions or warranties. The category of
in nominate terms was created in Hong Kong Fir Shipping. It is
important for parties to correctly identify which terms are to
be conditions and which are to be warranties. Where there has
been a breach of contract, it is important to determine which
type of term has been breached in order to establish the
remedy available.
A condition is a major term of the contract which goes to the
root of the contract. If a condition is breached the innocent
party is entitled to repudiate (end) the contract and claim
damages in poussed V spiers (1876) 1 QBD 410 case, Madame
Poussard entered a contract to perform as an opera singer for
three months. She became ill five days before the opening
night and was not able to perform the first four nights.
Spiers then replaced her with another opera singer.
The court held that the defendant’s refusal was justified and
that they were not liable in damages. What chiefly influenced
the court was that poussard’s illness was a serious one of
uncertain duration and the defendants could not put off the
opening night until she recovered. The obligation to perform
from the first night was a condition of the contract. Failure
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to carry out this term entitled the producers to repudiate
poussard’s contract.
Warranties are minor terms of a contract which are not central
to the existence of the contract. If a warranty is breached
the innocent party may claim damages but cannot end the
contract: in Bettini v Gye (1876) QBD 183 case Bettini agreed
by contract to perform as an opera singer for a three month
period. He became ill and missed 6 days of rehearsals. The
employer sacked him and replaced him with another opera
singer. The court Held that, Bettini was in breach of warranty
and therefore the employer was not entitled to end the
contract. Missing the rehearsals did not go to the root of the
contract.
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2.3. Evaluate the effect of different term in given
contracts.The provided facts are same like Hong Kong Fir Shipping v
Kawasaki Kisen Kaisha [1962] 2 QB 26 case. Hong Kong Fir
Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] EWCA Civ 7
is a landmark English contract law case. It introduced the
concept of in nominate terms, between "warranties" and
"conditions". Diplock LJ emphasised that some terms could lead
to either the right to terminate a contract as a remedy, or to
the mere entitlement to damages (or no right to terminate).
What mattered was not whether you call a particular contract
term a "warranty" or a "condition" but how serious the breach
of the term was.
The meaning of the term "seaworthiness" has a very broad
meaning ranging from trivial defects like a missing life
preserver or a major flaw that would sink the ship.
Accordingly, it is impossible to determine ahead of time what
type of term it is. Thus, the type of breach must be
determined by the judges. "Seaworthiness" is defined both by
common law and by statute. In McFadden v Blue Star Lines
[1905] 1 KB 607 it was stated that, to be seaworthy, a vessel
must have the degree of fitness that an ordinarily careful and
prudent ship owner would require his vessel to have at the
commencement of a voyage, having regard to all possible
circumstances. And the Marine Insurance Act 1906 s 39(4)
provides that "a ship is deemed to be seaworthy when she is
reasonably fit in all respects to encounter the ordinary
perils of the adventure insured."
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In the Hong Kong case, the issue was not whether the
unseaworthiness was "serious" or "minor"; rather the question
was whether the undoubtedly serious unseaworthiness had had an
effect sufficiently grave to allow the charterer to repudiate.
On the facts, given that the charterer had had the
"substantial benefit" of the contract for some 80% of the time
period, the court held that the breach was adequately remedied
by damages.
The Hong Kong Fir decision was met with some alarm in the
shipping world, where certainty is crucial. The problem was
the delay element; one had to "wait and see" the effect of the
breach. The enormous costs involved in chartering mean that
parties cannot afford to leisurely loiter, whilst pondering
the consequences of the breach. Soon after, in The Mihailis
Angelos [1971] 1 QB 164, it was held the impossibility of the
ship owner to meet the "expected ready to load" date, ipso
facto entitled the charterer to repudiate for anticipatory
breach of condition. (The charterer was relieved to be able to
cancel, as his proposed cargo of apatite had not materialized)
PS. Lord Denning used the word "warranty" in a very different
way. Therefore the defendants are liable for wrongful
repudiation. Here we can apply the in nominate term approach.
Rather than seeking to classify the term itself as a condition
or warranty, the court should look to the effect of the breach
and ask if the breach has substantially deprived the innocent
party of the whole benefit of the contract. Only where this is
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answered affirmatively is it to be a breach of condition. 20
weeks out of a 2 year contract period are not substantially
depriving the defendants of whole benefit and therefore they
are not entitled to repudiate the contract.
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Task 03 3.1. Differentiate tort liability with contractual
liability.
Winfield defined tortuous liability as follows: “Tortious
liability arises from the breach of a duty primarily fixed by
law; this duty is towards persons generally and its breach is
repressible by an action for un liquidated damages” The main
purpose served by the definition is to distinguish the law of
torts from other branch of the law and we now examine the main
area of difference between the law of tort and the law of
contract.
A contractual obligation differs in nature from a delictual
obligation in three aspects. Firstly contractual obligations
arise only from agreement between parties. However, delictual
obligations are contractual obligations that are imposed by
law on the party bound. Secondly, duties arising from contract
are owed to the parties to the contract (or their assignees),
whereas delictual obligations are owed to a large and
indeterminate class of persons. Thirdly, a delictual
obligation imposes negative duties, while a contractual
obligation may impose positive or negative duties.
According to Winfield one distinction between the law of tort
and the law of contract is that the scope of the rights and
duties of parties in the former is wider than in the latter.
In case of torts and duties are imposed by law and are owed to
persons in general while in the case of contracts the duty isPage 45 of 77
created by prior consent and agreement by the parties and is
owed by one party to the other. However, such a general
statement must necessarily be qualified in some respects.
There are several instances where the prior consent of the
defendant is a relevant factor in cases of tortuous liability.
Under the English occupiers Liability Act of 1957, a
distinction is drawn between the duty owed by an occupier to a
trespasser and that owed by him to a visitor whom he has
permitted to enter his premises.
Conversely, in the law of contracts the increased use of
standard form contracts and ‘implied terms’ which the law
deems the parties to have agreed to, has to a great extent
eroded the true freedom of the parties to make independent
decisions regarding the terms of such contracts. Therefore,
the parties may find themselves bound by terms imposed on them
by the law rather than by prior agreement between them.
However, we could argue on the other hand that no person is
bound by a contract against his will, may find himself subject
to terms imposed by the law rather than the agreed terms of
the contract alone.
We could also argue that in spite of the increased use of
standard of the contract is still determined by agreement
between the parties. For example, the question whether A
delivers to B 100 or 200 tons of fruit, depends on the terms
of the contract agreed upon by them. On the other hand, in the
case of the occupiers Liability Act, while the occupier of
premises will owe a duty of care to visitors whom he permitted
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to enter his premises, the extent of that duty is determined
by the act in question.
We can see a further distinction between the law of tort and
contract when we examine the aims of these two branches of
law. The primary aim of the law of tort is to grant redress or
compensation to the victim of a tort for the harm caused to
him. In other words the law seeks to put him as far as
possible in the same position as if he had not suffered any
damage or injury.
The aim of the law of contract on the other hand is to enforce
the promises made by one party to the other, and in the event
that this is not possible, to grant damages to the latter, or
in other words put him as far as possible in the same position
as if the contract had been performed. However, this
distinction too has been somewhat blurred in recent times and
it is now possible for a plaintiff to bring an action in both
tort and contract on the same facts. In the law of contract
the rule that a promise is not legally binding without either
consideration or the formality of a seal has been relaxed in
many instances and in the area of tort several cases have held
that a negligent defendant is liable even though he has not
caused damage to the plaintiff by any positive act [Rose v
Caunters where a solicitor who negligently executed a will was
held liable to a disappointed legatee].
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3.2. Explain negligence in law of tort with other
concepts associating with it.
The concept of negligence or culpa is one of the foundations of
the Aqulian acting on the Roman Dutch law. In the English law
however, it is of much later origin. The early common law
concentrated almost entirely on intentional harm and moreover
was more concentrated with the nature of the injury caused
then with the basis of the defendant’s conduct. so long as the
loss or injury was of a kind recognized in law as being
compensable, it was immaterial whether it was caused through
the defendant’s intentional or negligent misconduct.
It was during the 19th Century and the advent of the
industrial revolution that the concept of negligence began to
evolve as a basis of Tortious liability in the English law.
The development and expansion of industries and machinery and
new modes of transport etc. resulted in a wider range of loss
and injury suffered by individuals. The old stereotypes
remedies available were insufficient to provide a solution to
the problems which began to arise as a result of the social
and economic upheaval which prevailed at the time, and the
courts increasingly began to rely on the concept of negligence
in confronting them. Further the basis of negligence being
‘fault liability’ it proved to be more advantageous to the
proponents of industrialization than the concept of ‘strict
liability’ or liability without fault. However, the principle
of negligence also resulted in expanding liability in other
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directions as for example, liability for nervous shock,
negligent misstatements, omissions, etc. the importance of
this basis of liability can be seen in the fact that the vast
majority of litigation in the law of depict involves
negligence.
Negligence is not a tort in itself but a basis of liability in
Tortious actions, it may be defined as” the failure to
exercise towards another, in given circumstances that degree
of care which the law considers that a reasonable man should
exercise in these circumstances”
In order to establish negligence as a Cause of Action under
the law of TORTS, a plaintiff must prove that the defendant
had a duty to the plaintiff, the defendant breached that duty
by failing to the required standard of conduct, the
defendant's negligent conduct was the cause of the harm to the
plaintiff, and the plaintiff was, in fact, harmed or damaged.
The concept of negligence developed under English Law.
Although English Common Law had long imposed liability for the
wrongful acts of others, negligence did not emerge as an
independent cause of action until the eighteenth century.
Another important concept emerged at that time: legal
liability for a failure to act. Originally liability for
failing to act was imposed on those who undertook to perform
some service and breached a promise to exercise care or skill
in performing that service. Gradually the law began to imply a
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promise to exercise care or skill in the performance of
certain services. This promise to exercise care, whether
express or implied, formed the origins of the modern concept
of "duty." For example, innkeepers were said to have a duty to
protect the safety and security of their guests.
The concept of negligence passed from Great Britain to the
United States as each state (except Louisiana) adopted the
common law of Great Britain (Louisiana adopted the Civil Law
of France). Although there have been important developments in
negligence law, the basic concepts have remained the same
since the eighteenth century. Today negligence is by far the
widest-ranging tort, encompassing virtually all unintentional,
wrongful conduct that injures others. One of the most
important concepts in negligence law is the "reasonable
person," which provides the standard by which a person's
conduct is judged.
Proximate Cause Proximate cause exists where the plaintiff is injured as the
result of negligent conduct, and plaintiff's injury must have
been a natural and probable result of the negligent conduct.
In order for a defendant to be liable, the plaintiff must
establish both negligence and proximate cause.
Please note that the law speaks of the defendant's conduct as
being "a proximate cause" of an accident, as opposed to "the
proximate cause". Many accidents have more than one proximate
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cause. It is typically not necessary for liability that the
defendant's negligence be either the only proximate cause of
an injury, or the last proximate cause. A defendant may be
liable even where an injury has multiple proximate causes, and
whether those causes occur at the same time or in combination.
A plaintiff may be able to bring a cause of action against two
or more defendants by proving that the acts of each were
proximate causes of the plaintiff's injury, even where the
defendants' negligent acts were distinct.
Imagine a situation where a plaintiff is driving down the
road, and is suddenly cut off by a person who runs through a
stop sign on a side street. The plaintiff slams on her brakes,
and is able to avoid striking that car. However, the plaintiff
is rear-ended by another driver who was not paying attention
to the events in front of his car. The plaintiff may be able
to bring an action against both drivers - the one who cut her
off and the one who rear-ended her - on the basis that their
negligent acts, although independent, were both proximate
causes of her injuries.
The Elements of a Negligence Action A typical formula for evaluating negligence requires that a
plaintiff prove the following four factors by a "preponderance
of the evidence":
The defendant owed a duty to the plaintiff (or a duty to
the general public, including the plaintiff);
The defendant violated that duty;
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As a result of the defendant's violation of that duty,
the plaintiff suffered injury; and
The injury was a reasonably foreseeable consequence of
the defendant's action or inaction.
For example, a person driving a car has a general duty to
conduct the car in a safe and responsible manner. If a driver
runs through a red light, the driver violates that duty. As it
is foreseeable that running a red light can result in a car
crash, and that people are likely to be injured in such a
collision, the driver will be liable in negligence for any
injuries that in fact result to others in a collision
resulting from the running of the red light.
Gross Negligence
Gross negligence means conduct or a failure to act that is so
reckless that it demonstrates a substantial lack of concern
for whether an injury will result. It is sometimes necessary
to establish "gross negligence" as opposed to "ordinary
negligence" in order to overcome a legal impediment to a
lawsuit. For example, a government employee who is on the job
may be immune from liability for ordinary negligence, but may
remain liable for gross negligence.
Similarly, where a plaintiff signs a release (as may be
required, for example, before entering a sports competition),
for public policy reasons many jurisdictions will apply the
release only to conduct which constitutes "ordinary
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negligence" and not to acts of "gross negligence". The reason
for this is quite simple: It is not good public policy to
allow a defendant to escape liability for reckless
indifference to the safety of others, particularly in contexts
where the defendant is responsible for creating unsafe
conditions, or is profiting from their existence. Consider,
for example, a commercial venture engaged in a high risk
recreational activity, such as a company that offers rock
climbing tours. If a tour member is injured when safety
equipment provided by the company unexpectedly fails, a valid
release may protect the company from a lawsuit. However, if
the company knows up front that the equipment is defective and
uses it anyway; it would not be protected by the release.
Children and Negligence
Minors are typically held to a different standard of care than
adults. For example, a minor's negligence may be evaluated
against what reasonably careful person of the same age, mental
capacity and experience would exercise under the same or
similar circumstances. Very young minors (e.g., minors under
the age of seven) are typically presumed to be incapable of
negligence.
Most jurisdictions also consider the fact that minors act upon
childish instincts and impulses when considering injuries to
minors. As a consequence, a defendant knew or should have
known that a child (or children) were present, or were likely
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to be present, in the vicinity, the defendant may required to
exercise greater vigilance. By way of example, a person
driving by an unfenced playground where children often play
baseball should be on alert that a child may impulsively chase
a ball into the street.
Comparative Negligence
When comparative negligence applies, the damages a plaintiff
is awarded will be reduced in proportion with the plaintiff's
fault for his own injuries. (e.g., a jury determines a
plaintiff's damages to be $100,000.00, and finds that the
plaintiff is 40% at fault. The plaintiff would thus be awarded
$60,000 against the defendant.)
Contributory Negligence
Where "contributory negligence" principles are applied, if the
plaintiff in any way contributed to his or her own injury, the
plaintiff is barred from recovering damages. The extreme
consequence of this approach has led to its being limited or
abandoned in many jurisdictions.
One historic limitation has been to examine the context of an
accident to determine who had the "last clear chance" to avoid
its occurrence, and to excuse a plaintiff's contributory
negligence where the defendant is found to have had and to
have failed to exercise that "last clear chance".
Mixed Comparative and Contributory Negligence
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Some states follow a mixture of comparative and contributory
negligence, whereby a plaintiff who is less than fifty percent
at fault may recover damages reduced by the plaintiff's
proportion of fault, but a plaintiff who is more than fifty
percent at fault may not recover damages, or may recover only
a percentage of economic damages, against the defendants. (For
more explanation of damages, please see this associated
article.)
Vicarious Liability
Vicarious liability occurs when one person is held responsible
for the negligence of another. Typically, this applies in an
employment context, where the employer (master) is responsible
for the negligent acts of the employee (servant) which occur
within the context of the employment relationship. For
example, an employer may be liable for an accident caused by
an employee as the result of the negligent operation of a
delivery vehicle. (For more information on liability in agency
relationships, please see this associated article.)
Often, parents may be held vicariously liable for the
negligent acts of their children. However, many jurisdictions
have limited the vicarious liability of parents, and some have
eliminated it.
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3.3. Explain vicarious liability and its role in the
business context.
It is a generally accepted principle that a person is liable
only for the wrongs that he himself has committed. However, a
rule of tort law knows as vicarious liability creates
situations in which one person is held legally liable for the
wrongs of another although he himself is personally blameless.
The liability of one party for the action or inaction of
another party, even though the party held liable is not
directly responsible for any injury. For example, an employer
of an employee who injures someone through negligence while in
the scope of employment is vicariously liable for damages to
the injured person. In contrast, a defendant who engages an
independent contractor is not liable to others for the acts or
omissions of the independent contractor. An independent
contractor is a person who performs services for another
person under an express or implied agreement and who is not
subject to the other's control, or right to control, over the
manner and means of performing the services.
The doctrine of vicarious liability generally operates within
the law of torts. It has become well-established in English
law and historically has been called “Master and Servant
liability,” which clearly indicates the circumstances in which
the doctrine becomes applicable in tort law.
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The general rule in tort law is that a person who authorizes a
tort will personally be liable for damage or harm as a result.
However, vicarious liability defines the circumstances in
which a person is liable for the torts of another without
express authorization or ratification. The most common example
of vicarious liability is the liability of an employer for the
torts of his employees committed in the course of employment.
It is not necessary in such circumstances for the employer to
have breached any duty that was owed to the injured party, and
therefore it operates as strict or no-fault liability. It is
possible that the injured party could be either an employee or
a stranger, and the employer can be held vicariously liable in
both situations. The most important element to establishing a
case for vicarious liability is that the wrongdoer be acting
as a servant or employee, and that the wrong done be connected
to the employee's course of employment. Vicarious liability
can only be imposed if it is proved that the employee was
acting “in the course of employment.” This criterion is
essential, and requires a clear connection between the
employment duties and the employee's acts complained of. As
such, most employers will be insured in order to avoid such
liability. In addition, in order to establish vicarious
liability, it is necessary to show that an employee was
employed under a contract of service, or in the case of an
independent contractor, a contract for services. English law
has also established that an employer can be held vicariously
liable for a breach of statutory duty by an employee, for
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example in circumstances such harassment or bullying within
the workplace.
Vicarious liability “in the course of employment” The
principle of vicarious liability is only applicable in the
case of servants and not in the case of independent
contractors. For an employer to be held liable, the wrong must
be committed “within the course of employment.” This criterion
is a question of fact, and it is immaterial whether the wrong
committed by the employee was authorised or not. An employer
will only avoid liability in this situation if it can be shown
that an employee acted “on a frolic of his own,” or in other
words, if the employee acted in a way that was unconnected
with his employment. Recently, the courts have been willing to
impose liability in far-reaching circumstances on the issue of
whether the wrong was committed “in the course of employment.”
Important in this context is the case of Lister v. Hesley Hall
Ltd. This case establishes that an employer cannot avoid
liability by showing that an employee engaged in an
intentional and unauthorised wrongdoing. Thus, the important
factor in establishing vicarious liability is the connection
with the “course of employment.” However, it is important to
note that an employer cannot avoid liability if an employee
acts in a way that could be described as “incidental” to his
employment and the duties to which he is entrusted with.
Therefore, in establishing whether vicarious liability exists,
the question to be asked is firstly, whether the act
complained of was committed “in the course of employment” and
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secondly, whether the act is reasonably “incidental” to the
employee's employment duties. If there is a connection, it is
irrelevant whether the employee's act was unauthorised. In the
wake of Lister, a more recent trend has been to impose
liability upon an employer for violent acts committed by
employees. In the Court of Appeal case of Mattis v. Pollock
(t/a Flamingos Nightclub) a nightclub owner was held
vicariously liable for the violent acts of an employed
doorman. The Court of Appeal applied the rationale of Lister
and held that a “broad” approach was required in assessing
whether an individual’s acts were sufficiently connected with
the duties of his employment so as to justify imposing
vicarious liability.
Vicarious Liability under a statutory duty -An employer can
also be held vicariously liable for an employee's breach of a
statutory duty. This duty differs to that of a common law duty
in that the duty does not rise by operation of common law
principles, but by statute. As such, the statute imposes a
duty on the employee personally and makes no reference to the
employer. An employer can be held liable for the breach of a
statutory duty even where the statutory duty is owed by the
employee personally and individually. This circumstance would
potentially arise in the context of harassment within the
workplace, where one employee has been harassed or bullied by
another- see the case of Majrowski v. Guy's and St Thomas's
NHS Trust. However, emphasis will be placed on the intention
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of the legislature in creating the statute in deciding whether
vicarious liability should be imposed.
Conclusion Where vicarious liability is imposed on an employer, both the
employee and employee will be held jointly liable. This
operates to allow the employer to claim a contribution from
the employee under the Civil Liability (Contribution) Act
1978. It must be noted that in the context of an independent
contractor, an employer would be held vicariously liable where
he authorised or ratified the tort.
It is clear that vicarious liability will continue to operate
significantly for an employee's acts committed within the
“course of employment.” However the case of Lister has
expanded the approach taken by the courts in determining the
circumstances for the applicability of vicarious liability,
and has broadened the extent of the “in the course of
employment” criteria. Although essential, this criterion has
expanded to the point of allowing claims for vicarious
liability in cases where liability would not have arguably
been imposed. The extension of the liability to statutory duty
only highlights this point. In turn, the expansion of
vicarious liability will have far-reaching implications for
employer's in the future.
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Task 4 4.1. Apply the rules on tort of negligence and comment
whether Ciara can claim damages from Arthur Anderson.
We want to analyze whether Ciara can claim damages from Arthur
Anderson for that purpose we have to decide whether can get
pure economic lose for negligent misrepresentation in tort law
or not. Ciara bought Danial dine with the misperception of
Arthur Anderson’s information.
A misrepresentation is a forged declaration of reality or law
which induces the representee to go through a contract. Where
a statement made during the course of negotiations is classed
as a demonstration relatively than an expression an
accomplishment for misrepresentation may be accessible where
the declaration turns out to be incorrect. There are three
types of misrepresentation guiltless misrepresentation,
neglectful misrepresentation and deceptive misrepresentation
involve of a judgment of misrepresentation is the indenture is
voidable i.e. the agreement exists but might be set apart by
the representee. The solution available depends on the kind of
misrepresentation, but commonly consists of rescission and or
compensation. The correct to withdraw the contract may be
missing in some situation. The law unfolding to
misrepresentation is mostly found in common law with the
Misrepresentation Act 1967 as long as a number of further
information.
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The popular of professionals are attentive that the
stipulation of negligent advice or a negligent misstatement
may depiction them to liability. However, such professionals
may not be aware of the amount of their possible liability.
Negligent misstatement recounts to a representation of fact,
which is carelessly completed, and is relied on by another
party to their inconvenience.
For several time it has been probable to claim for financial
loss arising out of an inattentive misstatement where no
contractual or fiduciary affiliation exists between the
parties. This is provided but that a special connection or an
adequate proximity exists among the parties.
Duty of care in negligent misrepresentation
A particular is definite as a being practicing a career, the
quantify to be applied by the court in significant whether a
defendant has acted with concern is essentially strong-minded
by orientation to;
What could be logically expected of a person professing
that ability (and not a greater level of skill), and
The applicable conditions as at the day of the made-up
negligence and not an subsequently date.
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A proficient can pass up liability if it is well-known that
the professional acted in a behaviour that was extensively
acknowledged in Australia by peer proficient opinion as
knowledgeable professional preparation. However, if the court
determines that the judgment is difficult or there is a
responsibility to warn of risk, then the practised will not
getaway liability.
For an applicant to recover compensation for a neglectful
misstatement Ciara must establish; a duty of care, this is
well-known during a connection or immediacy between the
parties. This may be incidental, e.g., a trained relationship,
or informal. Policy considerations, such as the public
interest, may also be important.
A breach of duty, Ciara must establish that;
Arthur Anderson made a representation or statement,
Arthur Anderson knew, or ought to have known, it was
being requested for a serious purpose,
The representation and statement by Arthur Anderson would be
acted upon; if the statement was inaccurate they could suffer
loss. Damage, Ciara must establish that there is a connection
between Ciara’s omission and the damage they have suffered,
the element. This means establishing that they have relied to
their detriment on Arthur Anderson’s information or advice.
The influence of Denning LJ in the cases Candler v Crane
Christmas & Co are proved completely when the House of Lord
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was ready to make longer the duty of be disturbed in the
Hedley Byrne cases.
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1963] (HL) in
this case, House of Lord held that the plaintiff was
unsuccessful to claim the economic loss to the defendant,
since the advice given by the defendant was prefaced by
disclaimer of dependability for the accurateness of the
declaration. Besides that, House of Lord held that they are a
few suggestion of situation that the duty of care could begin
in pure economic defeat caused by inattentive misstatements
which are:
Plaintiff economic loss should be reasonably
foreseeable
Have a “special relationship” between the defendant and the
plaintiff. Consequently, the responsibility of care owed by
the defendant for neglectful misstatement is not as broad as
the general duty of care (Neighbourhood Principle) created by
the container Donoghue v Stevenson. The responsibility of care
was owed in the negligent misstatement when the position that
the parties are in “Special relationship”. the main expansion
in ‘special relationship’ came into the case above Hedley
Byrne & Co Ltd v Heller & Partners Ltd [1963] (HL).To compel
the duty of care into the tort law, there had to be a ‘special
relationship’ exists among the plaintiff and defendant. But,
create a ‘special relationship’ not necessary is a contractual
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client relationship. There is need of judicial agreement to
give an exact meaning of ‘special relationship’ therefore the
‘special relationship’ was treated in a slender term. The
special relationship just can exist into the commerce
relationship. In the Hedley Byrne case, reviewer decides that
there are few situation needed to achieve to constitute a
‘special relationship’ between the self who gives an
suggestion and another person that who wanted on the advice.
Plaintiff must rely on the advice given by the
defendant
Defendant must responsive that his suggestion will be relied
on by the plaintiff. Plaintiff reliance on defendant’s advice
must practical in all circumstances. Mutual existence and
citizen’s Assurance Co Ltd V Evatt [1971] AC 793, [1971] All
Er 150, PC the Privy Council held the plaintiff can’t claim
their economic expenditure loss cause by the negligent
misstatement to the defendant. Because the defendant was
Insurance corporation although they provide an advice but the
financial advice they had given was not a specialist in their
specialized. After this container happened, it restricted the
“special relationship” standard that ascertain in the case
Hedley Byrne. In this case Privy Council added an additional
condition that essential to constitute the special
relationship.
When the defendant who given the recommend must expert in the
part of their business or proficient.
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This situation had been established by the cases Esso
Petroleum Co Ltd v Mardon [1976] QB 801, [1976] 2 All ER 5, CA
in this cases, Esso provide an advise regarded the specialist
number of annual petrol trade to the Mr. Mardon, however Mr.
Mardon’s new filling station are fail to realize the expert
number given by Esso because of the rerouting of a highway.
House of lord held that, a duty of care will arise to the Esso
Company because the recommendation they give to the Mardon was
in their part of qualified and business. Therefore, the Mr.
Mardon can claim the economic loss cause by the negligent
misstatement to the Esso Company. (Richard Card & Jennifer James, 1990,
pg 323)
Moreover that, in the Caparo Industries v Dickman state that
the responsibility of care will arise not only that the
declaration will be relied on, and the result of the person
who relied on the declaration must suffer in economic loss.
Besides that, the defendant must have information that their
declaration would both be communicated to and be relied on by,
the plaintiff. (Vivienne Harpwood, 2000, pg83)
Caparo Industries v Dickman [1990] 1 All ER 568 case, House of
Lord held that no duty of care owed by the defendant as an
auditor to plaintiff who was real or potential shareholder.
(Richard Card & Jennifer James, 1990, pg 347)
The principle of the statement made by evaluator is to help
the corporation to manage all the money business and protect
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the company existing shareholder as remnants. Therefore, the
individual shareholder cannot use it as in sequence that
deciding to purchase more divide and make the profit on it. As
a result, the assessor was not owed duty of mind to
shareholder because the announcement was not including in
investing reason. Unless, the auditor are fully aware that the
shareholder would relied on his declaration. This can be shown
in the case below.
JEB Fasteners Ltd v Marks, Bloom & Co [1981] 3 All ER 289 in
this case, a firm of accountant, who carelessly made a
economic statement of Y company, and the plaintiff relied on
it. The court supposed that, the firm of accountant impose the
responsibility of care to plaintiff because the defendant
fully aware that the plaintiff will spending in or taking over
Y company thus, defendant will knew that the plaintiff will
rely on the available accounts. (Richard Card & Jennifer James, 1990, pg
323)
In the case Caparo Industries v Dickman the House of Lord
establish the contemporary three stage of duty of care. It
condition that, the duty of care would happen they are three
factors:
Level-headed Forcibility
Immediacy between the defendant and plaintiff
Is it fair, just and realistic to impose a duty of heed
to defendant
Page 67 of 77
Exception ‘Special relationship’ in negligent
misstatement
After the two cases Esso Petroleum Co Ltd v Mardon and Mutual
life and citizen’s Assurance Co Ltd V Evatt, the special
relationship no longer just exists into a business connection
and existed into professional affiliation too. Even as social
relationship still barred, unless the parties can be obviously
prove that carefully considered advice for organism sought.
Chaudhry vs Prabhakar [1988] 3 All ER 718 the court of appeal
held that the duty of mind will arise on the defendant who are
the friend of plaintiff that give a negligent recommendation
to the plaintiff to assortment of a second car. The defendant
will answerable on it, although defendant not as a specialized
in the mechanic area.
This is an exemption existed the responsibility of care in a
social relationship. Because the Court of application clearly
measure that the case above was a strange case, the judgment
in this case was complete in a special facts. Consequently,
this judgment not consists into universal rule of liability in
all cases
Exception ‘Special relationship’ in tort
In the all-purpose rule of “special relationship” in tort,
there is no duty to control the act or conduct of third person
for prevents their behaviour resulting injury to an extra.
While, there had two exceptions state that the person (actor)
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has a duty to control the act of third person which are state
in the Section 315 of the Restatement.
First exemption, when particular affiliation exists into actor
and third person. Second exception, when performer has a
particular relationship with the other that the performer has
owed a duty of care to defend gets injured by the act of Third
person.
Pure Economic Loss
Economic loss is a term of art which refers to monetary loss
and injure suffered by a person such as can be seen only on a
equilibrium sheet rather than as physical injury to the self
or destruction of property. There is a fundamental distinction
between “pure economic losses” and “consequential economic
loss”, as pure economic loss occurs self-regulating of any
physical damage to the person or property of the victim.
Usually, "pure economic loss" in tort, particularly in
negligence, is not recoverable as damages or otherwise. It has
also been optional that it be called "commercial loss" as
injuries to person or possessions could be regarded as
"economic".
From interpretation several cases, the term ‘pure' suggest
that a loss must be wholesome and self-representative, rank
separately from other losses such as personal damage. This is
a shape of loss experienced by a claimant that is not
consequential due to a result of bodily damage to a person or
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property. Ordinary categories of pure economic loss are
spending, loss of profit, profitability or loss of some other
shape of financial increase. It is so important to decide
whether a claim is in fact consequential or pure financial
loss, as the latter is usually not recoverable in-law as
damages. In a claim for personal injury following negligence
of the defendant, the claimant may be unable to resume work
suffering a loss of wages which is a usual head of damage. We
can see that this is clearly a manufactured goods of personal
injury thus representing consequential loss not pure economic
loss. From preceding readings, economic loss is recoverable
using the law of contract, and unless contractual provisos or
agreements have been breached, there cannot be declare for
loss. Even so, there are other categories of torts known as
‘economic torts' that act as a vehicle of improvement for
economic interests.
4.2. Analyse the situation to decide whether the company
is vicariously liable for the action of Mr. Plenty It is generally accepted principle that a person is liable
only for the wrongs that he himself has committed. However, a
rule of tort law known as vicarious liability creates
situations in which one person is held legally liable for the
wrongs of another although he himself is personally blameless.
This is another instance of strict liability and is usually
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invoked to hold a master liable for the wrongs committed by
his servants.
This early concept of vicarious liability changed and evolved
over the centuries into the present day rule of tort law that
an employer is liable for the acts of his employees committed
in the course of their employment.
Before discussing the task, it is important to note that it is
not applicable in the case of all employees but only as
regards those who fall within the legal definition of a
‘servant’. In other words it is incidental only to a “master
and servant” relationship. Secondly, it must be remembered
that it is not based on any breach of duty owed by the
defendant but on the fact that his servant’s tort is imputed
to him.
The principle of vicarious liability is only applicable in the
case of servants and not in the case of independent
contractors. Therefore it becomes important to distinguish
between the two. Two theories have been formulated to do so,
namely control test and organization test. Here it is clear
Mr. Plenty is a servant not an independent contractor. It
should be noted that a master will not be liable only for
those torts which were committed by him in the course of his
employment. “A wrong falls within the scope of employment if
it is expressly or impliedly authorized, or is necessarily
incidental to something which the servant is employed to do”.
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Once it is established that the enough relationship of
employer and worker exists, it is necessary that any tort be
staunch in the course of employment. As with distinctive an
employer and employee association, there is no one test which
adequately establish which acts employers are vicariously
liable for. Such determinations rest upon precedent, and the
facts of each person case. A favoured test of the courts was
formulate by John William Salmond, some 100 years ago, which
conditions that an employer will be held liable for either a
unlawful act they have official, or a wrongful and
unauthorized mode of an act that was authorized. The rationale
for this is policy based; if an employer could simply issue
detailed and long prohibitions on what an employee was not to
do, they could never be found vicariously liable for the
wrongdoings of their employees. However, a distinction can be
drawn between acts which are prohibited, and acts which take
employees out of the course of their employment. An
illustration of the test is provided by two contrasting cases,
Limpus v London General Omnibus Company and Beard v London
General Omnibus Company, both involving road collisions. In
the former, a driver pulled in front of another rival omnibus,
in order to obstruct it. Despite express prohibitions from the
employer, they were found liable; this was merely an
unauthorized mode of the employee carrying out his duties
(driving), not an entirely new activity. By contrast, in the
latter case, London General Omnibus Company were not liable
where a conductor (employed to collect fares on board the bus)
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negligently chose to drive the vehicle instead; this was
completely outside of his duties. A wilful wrong of a servant
may still be held to be in the course of employment even if it
had been expressly forbidden by the employer. The latter would
be protected from liability only if the act which had been
forbidden actually restricted what the servant was employed to
do. “It is a question of fact in each case whether the
prohibition relates to the sphere of the employment or to the
mode of performance”. In the case of Limpus v London Omnibus
Co, a driver of the defendant’s omnibus had specific
instructions not to race with or obstruct other omnibuses on
the road. He disobeyed these orders and obstructed the
plaintiff’s vehicle and damaged it. His employers were held
liable because his act was a wrongful and unauthorized mode of
carrying out an authorized job, which was to promote their
business in competition with their rivals. The surrounding
circumstances of wrongdoings are often important in deciding
whether an act is in the course of employment or not.
For example, where a professional rugby player was expressly
prohibited in contract from assaulting another player, it was
held that as it had been contemplated by the drafters, such an
act was in the course of his employment. Where in Century
Insurance Co v Northern Ireland Road Transport Board an
employee set alight to a petrol station, by throwing a match
carelessly away while refuelling a petrol tanker, this was
adjudged to have been in the course of his employment.
Page 73 of 77
There have been contrasting judgments where employees have
given lifts in their vehicles, during hours of employment, as
to whether their employers can be vicariously liable. Two
similar cases demonstrate this problem. The first, Conway v
George Wimpey & Co Ltd involved a driver, who, despite express
prohibitions, gave a lift to an employee of another firm, and
negligently injured him in an accident. No liability was
imposed on the employer, as this was deemed to be an activity
outside of the employee's duties. This can be compared to Rose
v plenty, where liability was imposed where a small boy was
injured in a road accident, while helping a milkman on his
rounds. It has been stated that these two decisions are not
reconcilable. However, Lord Denning offered some justification
in Rose v Plenty for the distinction, stating that the
employee, in allowing the boy to assist him, was not acting
outside of his employment, but acting in furtherance of it
(through the boy assisting his duties).
Rose v Plenty [1976] 1 WLR 141 is an English tort law case;
this case’s facts are same like provided case study. Vicarious
liability was tenuously found under John William Salmond's
test for course of employment, which states that an employer
will be held liable for either a wrongful act they have
authorized, or a wrongful and unauthorized mode of an act that
was authorized. On appeal to the Court of Appeal, this
judgment was reversed, with Lord Denning making the leading
speech. It was established that, as in the case of Limpus v
London General Omnibus Company the employee was merely acting
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in an unauthorised way, whilst still going about his duties of
delivering milk: In the present case it seems to me that the
course of the milk roundsman's employment was to distribute
the milk, collect the money and to bring back the bottles to
the van. He got or allowed this young boy to do part of that
business which was the employers' business. It seems to me
that although prohibited, it was conduct which was within the
course of the employment; and on this ground I think the judge
was in error. I agree it is a nice point in these cases on
which side of the line the case falls; but, as I understand
the authorities, this case falls within those in which the
prohibition affects only the conduct within the sphere of the
employment and did not take the conduct outside the sphere
altogether. I would hold that the conduct of the roundsman was
within the course of his employment and the masters are liable
accordingly, and I would allow the appeal.
Whilst the majority of Lord Denning and Scarman LJ agreed upon
this interpretation, Lawton LJ dissented, arguing that
precedents set in two earlier cases, Twine v Bean's Express
Ltd and Conway v George Wimpey & Co Ltd, could not be
distinguished from the instant case. In these cases, no
liability was found on the part of the employer where
passengers taken by employees - against specific instructions
- were injured. Lord Denning distinguished the cases on the
grounds that Leslie Rose had been furthering the employee's
duties, keeping Mr Plenty within the course of his employment.
Page 75 of 77
Conclusion
By doing this first task got clear knowledge about
elements of valid contract, different types of contracts,
and terms of contract. And second task is about elements
of contract in the scenario of Alan and Cath, different
terms. With the task 3 differentiate tort liability with
contractual liability, negligence in law of tort,
vicarious liability and its role in the business. Task
four is mentioned rules on tort of negligence, elements
of vicarious liability in business situations.
I have also collected the relevant secondary data from
various sources like magazines, books and Internet. Based
on the relevant primary and secondary data, a four
comparative analysis has been done so as to find out the
areas of excellence and improvement in future.
Page 76 of 77
Reference k.t chitrasiri,2004, law of contract
w.v.h rogers, Winfield and jolowicz on tort, 1984 London
sweet &Maxwell press.
e.d. pitchfork, law of tort, 10th edition, HLT
Publication
Catharine MacMillan Richard Stone, 2012, Elements of the
law of contract, University of London
Richard Stone,2002, The Modern Law of Contract
P. Ebow Bondzi-Simpson, 2002, Law of contract, Excellent
Pub. & Printing
Justo P. Torres, 1987, Obligations and contracts,
Booksellers, Inc.
Justo P. Torres, 2000, The Law on Business Organization:
Partnerships & Corporations, Published & distributed by
Rex Book Store
Avtar Singh, 1980, Law of contract, Eastern Book Co.
Sir Frederick Pollock, India, Sir Dinshah Fardunji Mulla,
1972, Pollock & Mulla on Indian contract and Specific
relief acts
Hugh Collins, 2003, The Law of Contract Cambridge
University Press
Richard Stone, 2005, The Modern Law of Contract
Cavendish,
[Online] available at<www.slideshare.net> [Accessed on
10th of august at 10.00 am]
[Online] available at<www.lawteacher.com> [Accessed on
13th of august at 8.30 pm]
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