HND BUSAYO ASPECTS OF CONTRACT COPY
A contract is regarded as a special relationship between the parties that agree to it. It is a special because on the parties may be able to derive the benefits from it. The contract should be of standard form and contain the basic elements of the contract. Every contract has a certain type and should be treated accordingly. The breach of a contract is studied according to the nature of the contract. The breach of contract is said to be different from the breach so caused under the law of tort. The various types of torts area aimed at being studied in the following assignment. The knowledge so derived from the given principles is then applied towards the case studies to derive the answers.
A contract is a relationship between the parties for the purpose of a specific nature that brings the parties together. Such a purpose has to be the nature of the contract in order to determine its fulfilment. Every contract should include the nature of the elements in order for it to be standard in formation. Such elements include offer, acceptance, consideration, capacity, intent and privity to contract. (Collins, 2008)
An offer is said to be such statement that comprises of terms so offered by the offeror for the purpose of presenting the contract. The offer is said to be the first step towards the contract as it initiates the contracting process. Every offer should move from the offeror and lead towards the offeree. The offeror should ensure that the offer so made to the offeree shall be clear in meaning and understanding in order for it to be clearly interpreted between the parties so involved. The offer should be clear and precise to make the best interpretation. Every offer should be made to a specific party or a group of people that would be party to the contract. A contract may be offered to one party in particular or the entire world all at once. Such contracts are known to be through offer to the world wherein the person being party to the contract becomes such through performance of a certain act determined in the offer. Every offer is not always accepted as it is by the parties. Sometimes the parties may provide an altered offer that may be known to be counter of the original offer. The counter offer, thereby, results in replacing the offeror as the offeree. Sometimes, the first step towards the contract is offer but the offer is originally derived from the intimation of the seller to the availability of the product. Such intimation is regarded as the invitation to offer whereby the offerors are invited to make their offers in order to go ahead with the concerning purchase of the product. Unless the final offer is concluded no contract is said to be existing between the parties. (Giliker, 2010)
Every contract may or may not be accepted by the offeree. Every contract may conclude in two ways, rejection or acceptance. If the offer is rejected the contract is said to have not been formed between the parties. Thereby, the acceptance is important part towards the formation of the contract. The acceptance of the contract should move from the offeree and be clear in understanding. Under the case of offer to the world the intimation of acceptance is waived off by the party and the contract is entered into by performing a certain action as mentioned in the offer. The acceptance should be made in a manner that is acceptable under the law. Such acceptance may be either in person, through mail or telecommuting and such other means of communication as deemed fit under a contract. The acceptance shall be communicated directly and reach on time. The acceptance so made through a post is considered to be valid as soon as it is posted.
The intent to enter into the contract is an important part of the contract as it helps in determining the nature of the contract in order to establish the enforceability of the contract. The intent helps in determining the extent that it can be established under the law. The contract’s existence under the law is completely dependent on the factor that its intent is determined. The intent may be of two types, that is, commercial or social. The contracts so established for the purpose of the commercial nature then the same may be enforceable under the law without any such mention. The contracts so established under the social regards such contract require the determination of the fact that the same are to be enforceable otherwise the same cannot be applicable under the law. Thereby, the intent to enter into the contract determines the enforceability under the contract.
The very important part of the contract that makes it valid is that of consideration. The consideration under a contract helps in maintaining the legality of the contract. It is so because the consideration is regarded as something of value in order to exchange the same among the parties to create a transaction restoring their losses respectively. The consideration has to be an exchange in order for it to validate the contract. The consideration should not be of past nature, be present, be sufficient, move from the promise and not be part of the existing duty performed under contract or social context. The consideration establishes the validity of the contract under the law. If the same is not present under the contract the contract would merely be considered as a promise and would not be enforceable under the law. (Meyer, 2010)
The parties to the contract should ensure that they are in capacity to understand the contract for it to be valid under the law. The parties to the contract at the time of entering into the contract should be of legal age, mentally sound and economically stable. For parties that are not so the contract so entered into by them are void in nature. It is important for the other parties to ensure that the parties are of capacity in order for it to be enforceable under the law. It may sometimes be excused that the contract so entered into by the minors are valid if the other party to the contract wants to continue the same as it is. (Nel, 2004)
The contract may not always be performed by the parties to the contract. Sometimes the contracts be breached by the parties for non-performance or wrongful performance. It may thereby be considered that the damaged party may claim for the loss so suffered from the breach. The parties to the contract may be the only ones to claim for the breach of the contract. If the third parties attempt at doing the same then the same would be invalid. Thereby, such a relationship is said to be the privity to the contract.
The various types of the contract that may be entered into by parties are known to be as follows:
- The contracts that are entered into within the presence of the other party are known to be the face to face contract. The contracts of such nature are mostly entered into through a conversation. The conversation is the basis of the contract. The offer so made is through the conversation and the acceptance is to the made through the same conversation or a time so set for a later date. The offer and acceptance so made should be clear in understanding and simple to interpret. Under such contracts the conversation unless recorded may not be able to be presented under the law. Thereby, such contracts are difficult to be established for the purpose of enforceability in case of breach.
- The contracts that are entered into through writing are known as the written contracts. The terms and conditions for such contracts are discussed in writing between the parties and the accepted through the signatures in the written form. The written contracts are present in a manner that may be presented under the law for its enforceability. Due to its evidentiary value the contract are easier to be established as opposed to the oral contracts. (Pratt, 2000)
- Sometimes the contract entered into by the parties are from a distance. Such contracts are entered into by exchanging the terms from a distant mode of communication without in the presence of each other. These contracts may be that of online selling contracts wherein the supplier presents the products for the interested consumers to purchase the same. These contracts are mostly in writing and clearly expressed. The contracts are therefore easier to be established under the law for being present in writing. (Richards, 2006)
The different types of contract terms that are present under a contract are as follows:
- Every contract needs to have a condition present in order for it to be performed to achieve the fulfilment of the contract. A condition is said to be the irreplaceable part of performance as the non-performance of the same would result in the breach of the contract. The condition defines the purpose of the contract and is primary in nature. The condition of the contract may be performed at different stages of the contract. Such may be according to the nature of the contract and importance of conditional performance as determined under the contract.
- Sometimes the performance of the conditions is dependent on various factors beyond that contained under the condition. Such terms that support the performance of the contract are regarded as the warranties of the contract. The warranties may be concerning various different aspects that are covered under the contract. The warranties are important to be performed but if not performed the contract would remain to be carried forward and the damages may be claimed by the affected party in the meanwhile.
- It may happen that the nature of the contract may not be clear to understand and may vary from the different situations. Thereby, the contract may not be voided for some conditions and may be so for some warranties in general. The nature of terms is decided based on the affect it cause in the given situation. Therefore, these terms are known to be innominate terms. (Vettori, 2007)
- Terms that are clearly determined under the contract are referred to as the express terms. Express terms are clearly discussed between the parties and easy to understand. The same are common in nature and determined under the contract. Such terms may be either condition or warranty depending the affect under a given contract.
- Terms that are not mentioned under the contract but are enforceable by the parties under the contract are known to be the implied terms. Such terms are implied through laws and customs. These terms are applicable under the law because the same have been elemental to similar type of contracts. Thereby, the performance of the implied terms is inevitable. (Collins, 2008)
- Exclusion clauses are known to be such terms that include the limitation of the damage to be paid in the situation of breach of the contract. Such breaches are to be valid in the context of the contract and not just formal. In case the exclusion clause is included for the injury or death so caused from the contract then such a term will be invalid. It is important that these clauses are inserted through prior discussion, signatures or a notice.
Case A: Carlill v Carbolic Smoke Ball Co.
In this case the principle of offer to the world was established. It was determined that the company Carbolic Smoke Ball had posted an advertisement in the newspaper for the determination of the offer so made to the world regarding the positive effects of the cure so advertised for influenza. It was determined that it is surely to work and if the same does not the affected party may claim a sum already deposited in the bank. Mrs. Carlill was such a customer however she was restrained from making the claim on the basis that it was not meant for any person using the product as the acceptance had to be intimated. It was held that under the case for offer to the world the wording of the offer should be so clear that no other interpretation ma be made. It was also held that under such cases the acceptance to the offer is waived off by the party offering the same. (Giliker, 2010)
Case B: Hyde v Wrench
In the present case it was discussed that the defendant had made an offer to the claimant for the sale of a farm worth 1,000 Pounds. However the offer was countered by the claimant for the price of 950 Pounds that was refused by the defendant. The claimant then had accepted the previous offer so mad by the defendant. It was determined that since the original offer primarily made was countered it was no longer existent. Thereby, the subsequent acceptance made for the primary offer is not an acceptance but an offer which is thereby rejected by the defendant making no contract therefore. (Meyer, 2010)
Case C: Lampleigh v Braithwaite
In the present case it was established that the past consideration is not a valid consideration. The defendant had murdered the person who was about to be hanged to death the next day. The defendant asked the claimant to make him get a pardon from the king. After the claimant successfully did so, the defendant promised to pay him a sum of 100 Pounds that he didn’t. The claim so made by the claimant is considered invalid as the action so determined for the contract has been performed. However, the claimant had performed the act when asked by the defendant and the same was not paid for thereby, creating a liability on the part of the defendant. The claimant may have the right to claim for the actions so performed by him.
Case D: Tweddle v Atkinson
In the present case the principle of privity to the contract was established. Herein under, a couple wanted to get married. But the father had agreed with the father of the groom that a sum of money would be paid to the couple. The father of bride died having not paid his share. The groom’s father died as well before doing the same. The groom thereby, made a claim from the executor for the sum so agreed to by the respective fathers. It was determined that since the groom was not a party to the contract, he would not be able to claim the sum and was not entitled to the enforceability of the contract. (Pratt, 2000)
Case E: Chapple v Cooper
In the present case it was determined that the widow was sued for the funeral expenses of her late husband because such services are important. Under general conduct of law the services of any nature are to be ordered by a person in order to pay for the same, however, the services such as funeral are to be paid for as the same are important in nature and for the condition of the life at time of sale and deliver making her liable to pay for the services. (Meyer, 2010)
In the provided scenario it may be stated that the statement so made by the salesman regarding the offer of lowest prices in Britain is considered to be a trader’s puff. This is because a trader’s puff is considered to be a statement that may be or may not be completely true. A trader’s puff is a statement that is made for the basis of attracting the customers to purchase the products so advertised for.
The term related to the inclusion of the Road Tax, Radio, Stereo and full Tank of petrol would be determined as an express warranty as the same would be supplementary to the main purchase of the contract. Such a sale would be made for the used cars and the same will be supported with above mentioned statement thereby making it a warranty. The term so made for the sale price and the model number of the car will be considered as a condition as the same may not be substituted with other cars. The term made regarding the Registration number will also be considered as the condition to the contract. The terms regarding the miles covered and the owner of the car would be a representation as the same cannot be certain and only be informed to the seller’s best knowledge. The implied term in the contract would be for the provision of the car as represented. The seller should ensure that the same model with the same registration number should be provided. This is because the Sale of Goods Act, implies certain terms in regards with the provision of goods as per standard quality and sample so provided for the delivery of goods of best nature to the client. If the same is not provided the customers may have a remedy to void the contract, repair or claim for repayment of the product.
It may be determined from the case study that Jim and his family were holidaying by the riverside and they went to Fun Park whereby a charge of 1 Pound was paid to the Stand Council for parking. It was determined in the parking area that the Stand Council will not be responsible for the damages so caused to the cars in the parking area. The same was hidden behind the shrubs. The family then went inside the park whereby on paying the entry charges he was handed offer with a slip stating that the park will not be responsible for the injuries so caused or death to the visitors. A flying bar came over and hit the children. It may be noticed that the clauses so mentioned by Stand Council and Fun Park are exclusion clauses. (Collins, 2008)
The exclusion clause so provided by the Stand Council was hidden and not accessible to make the customers fully informed. Thereby, the same would not form a part of the contract. The clause so mentioned by the Fun Park was on the ticket that was paid for already wherein the same was presented after the contract was already entered into. It may be determined that the clause will not form a part of the contract and the Fun Park will be responsible for the damages so caused. Also, the exclusion clause would be said to be invalid as it restricts the liability for the cause of death or injury that is forbidden under the UCTA. Thereby, even if the clause was a part of the contract it would be inactive and invalid. Therefore, Jim and the family are entitled to claim for the damages so suffered to the car as well as the children. (Pratt, 2000)
The liability so established under the contracts is different from the one arising under the law of tort from negligence. The liability so arising under both the laws is civil and strict in nature. The root cause of liabilities under two separate aspects is different from the different causes. The liability under the law of contract arises from the non-performance of the contract already agreed to between the parties. Whereas the liability in tort arises from the wrongful act so caused towards the party which results in breach of the duty of care so owed to the person. The elements important for the contract to be considered are that of offer, acceptance, privity and such other. (Cooke, 2007)
The elements so considered in order to study the occurrence of tort are that of remoteness of damage, causation and such other. The damages so occurred under the contract are discussed and decided based on the involvement of the consideration whereas the damages so decided under the tort are different and specific to the situation so arising. The rights so affected under the breach of the contract is that of the right in personam whereas the right so affected under the breach of duty of care is that of right in rem. The reason behind the breach so committed under the law of contract is not important whereas the same is of importance under the law of tort. The parties under the contract are already in a relationship of professional nature whereas the parties under law of tort are not under any relationship prior to the breach. The liability arising under the law of contract is strict in nature because the parties to the contract had already agreed to perform a certain duty towards each other. The liability under law of tort is strict because the duty of care towards the society is inevitable and cannot be escaped. (Collins, 2008)
The liability of negligence under the law of tort is considered to be arising from a breach of exiting duty against the society. The duty so concerned is for the duty of care to be taken by everyone towards their neighbour in order to protect their right to safety and healthy life. The duty of care extends to any person that may be affected from a negligence act. The duty when breached is considered to be a breach of duty of care. Such a breach should be so serious that it causes the other party some detriment in terms of loss of physical, monetary and psychological aspect. It is essential that the damage and the wrong committed should be connected. For example if the driver is driving negligently on the road he is breaching the pedestrian’s right to safety and if caused accident would be bound by a tort of negligence. In the case of Donoghue v Stevenson it may be determined that the extent of liability under tort of negligence was established whereby the manufacturers were now burdened with a liability toward the product no matter who uses it. This case was elemental in laying down the liability for the manufacturer in addition to the sellers of the product. Under the case of the Caparo Industries it was determined that the tort of negligence should be tested against a three-fold scale of factors. These factors are studied as follows:
- Remoteness of Damage: The tort so committed should be at least related to the damage it’s causing. The connection may be direct or indirect.
- The cause of the negligence should cause an effect on the damage so claimed for. The cause and effect relationship should be direct in nature. (Giliker, 2010)
- Proximity: The tort so committed and the damage so caused should be under the given area whereby least possible effect may be caused from the tort so committed. The two aspects should be within such an area whereby the relationship between the two may be established. (Vettori, 2007)
It was also determined under the case that if the damage to be occurred is foreseeable then the parties would be bound by the duty of care and avoid the possible damages that may lead to a harm towards the other party. The possible defences that may be applied by the parties towards each other under tort of negligence is that of the contributory negligence, minor negligence, or volenti non-fit injuria. The contributory negligence refers to a situation whereby both the parties are involved under the cause of negligence leading to the damages. The parties in such a situation are responsible to a shared ratio and respectively responsible. The minors are excused from the negligence so committed by them because of the assumption that they are not aware of the wrong so committed by them for the lack of knowledge. The situation whereby the damaged party has voluntarily exposed himself to the situation of damage then such a party is not entitled to any claim.
Sometimes the liability so arising is burdened on a person who is not actually performing the wrong. Such a liability is known as the vicarious liability. Such liability is most commonly present under the relationship of employer-employee. This is because the employee is said to be performing the duties so delegated by the employer which won’t be performed if not asked for by the employer. Thereby as the employer benefits from the performance of the duties the wrongs so committed by the employee would be the employer’s responsibility as well. The wrong so committed should be however arising from the performance of the professional duties and not personal actions so undertaken by the employee on whim. Also, the actions so performed of illegal nature will not be the responsibility of the employer.
According to the Health and Safety at Work Act, states that the employer is responsible for the maintenance of the security and health of the employees present on the premises. These liabilities arises from the relationship for being responsible for the actions so performed by the employees. The equipment so used by the employees should be safe and of standard quality. The premises should be clean and sanitised to ensure health of the employees. Clean water to drink and place to sit should be provided. (Nel, 2004)
According to the Occupier’s Liability Act, 1984, the occupier is responsible to maintain the premises for the safety of the people present on the premises be it permanent or temporary. The occupier should ensure that the warning signs are put up at places required to keep the visitors informed of the possibility of harm to be caused when present at the premises.
In the present case it may be determined that the defendant ran a min-bus business. Such a mini-bus was left to lay-by for the entire night. The mini-bus had been unlocked and the keys were left in the ignition. It was asked from a hired driver who was an employee to pick up the bus. But he did not turn up for his shift. Few thieves had discovered about the min-bus and the keys available inside and drove it away. However, the thieves were driving negligently and the acts led to knocking over a woman present on the bicycle. The woman was later found to be dead and an action was brought forward by her husband. The action was brought against the min-bus service. It was discussed that however the bus caused the death the owner or the employee were not driving the car. Thereby, the actions of negligence was not undertaken by any of the parties related to the min-bus. The bus company owed no duty of care for the performance of negligent act of third parties. Thereby, the husband had no claim against the mini-bus company for the loss of her wife from negligent actions of the thieves. (Nel, 2004)
In the given case it may be determined that the Coggins and Griffiths had hired a crane from the Mersey Docks Board. The same was hired to be run for the purposes as required. The crane was negligently driven by a driver so provided by the Board and injured a man. The injuries so caused were now claimed for from the Board. The question so arising was whether the clause so specified in the contract for the exchange of employee and the vicarious liability for the time of hire is valid or not. It was determined that the contract stated that the hirers can tell what to lift and not how to lift. It was held that the work so performed by the driver was not transferred. Also, wherein the employee who has two employers then the employer having the direct control of the employee at the time of the performance of negligence would be responsible vicariously. The employer having the maximum control here in case was the Mersey Docks and therefore, they will be responsible for the negligence so undertaken by the driver leading to causing the harm to the man. (Richards, 2006)
It may be concluded that the contract is established between two or more parties on mutual consent. Such consent shall be clear and express. The consent should be valid and duly acquired for the terms so present under the contract. The terms when breached will result in creating a liability for the damaging party towards the affected one. The tort law established the duty of social nature which when wrongfully breached would be owed to be compensated by the damaging party. Such liabilities have been studied in detail under the present assignment.
- Collins, H. (2008). Standard contract terms in Europe. Alphen Aan Den Rijn: Kluwer Law International.
- Cooke, P. (2007). Law of tort. Harlow: Longman.
- Giliker, P. (2010). Vicarious liability in tort. Cambridge, UK: Cambridge University Press.
- Meyer, L. (2010). Non-performance and remedies under international contract law principles and Indian contract law. Frankfurt am Main: P. Lang.
- Nel, J. (2004). The theoretical basis for contractual liability. Bathurst, N.S.W.: Faculty of Commerce, Charles Sturt University.
- Pratt, S. (2000). Duty of care. East Roseville, N.S.W.: Simon & Schuster.
- Richards, P. (2006). Law of contract. Harlow, England: Pearson Longman.
- Vettori, S. (2007). The employment contract and the changed world of work. Burlington, VT: Ashgate Pub.