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Legal Capacity Assignment Help importance of the essential elements required for the formation of a valid contract

What is contract- when the two parties are entered into an agreement willfully and there is legal obligation is created Legal Capacity Assignment Help | Contractual Capacity | Legal Capacitybetween them is known as contract. The essential elements which are consider necessary for the formation of the valid contract. These are under:

  1. offer and acceptance
  2. Consent
  3. Legal capacity
  4. Intention
  5. Promise
  6. Consideration (lawhandbook.org.)

Offer and acceptance – First essential conditions for creating the valid contract there must be the offer and acceptance between the parties. If there is no offer and acceptance then the contract is not valid in the eyes of law. In offer and acceptance the party has need to make an offer to the one party and one party have to accept the offer for making the contract.

Consent- Second and one of the most important essential for the formation of the contract is the consent. The concept of the consent is come under the section 13. There should free consent of the parties. If the consent is not free then it is not valid contract. There must be  no physical danger in the contract. There are some points which are mention below which shows the consent is free when:

  1. First is the coercion which is defined under section 15 of the contract act.
  2. There is no undue influence by the one party on another party and it comes under section 16.
  3. The consent is not taken by fraud. This connect is deal under the section 17
  4. If there is misrepresentation by one party in making of contract then consent is not free. It is defined under section 18.
  5. The sections 20, 21 and 22 deals with the mistake; it is also one of the important for the free consent.

Legal capacity- The contract which is made by the parties must be in legal capacity means that the contract which is made by the parties is not against the any provisions of the law, thus example the contract which is against the law is that making the contract for commit the crime, or for the making fraud. The contract is come under the law; it is not beyond the law. (hkclic.org)

Intention- There must be an intention to create the contract between them. If the intention is taking by any influence then the contract is not the valid contract.

For instance: like husband and wife agreement. There is a social agreement between the husband and wife agreement and which are not enforceable by law and court considers the domestic arrangements: Balfour v. Balfour.

Promise to pay Consideration: There should be promise between the parties in which they make the promise to pay the consideration. It is given by the promisor to promisee. When the promisor take the promise from the promisee that he has done or he is abstained from doing something in the past, he does or abstain from doing in future, or give promise not doing something in the future. The promise which is given by the promisee to promisor for such act the consideration is given. Any agreement which is not included any consideration is not an agreement.

Capacity – the capacity is also an essential element of the valid contract. The parties which are made an contract they are both competent for the valid contract. they have the capacity of contract, if they are not capable then contract is not valid. The person who are not competent for the valid contract are:

  • If a person is minor
  • Person is unsound mind
  • Law disqualified any person

LO 1.2 Discuss the impact of different types of contract

The impacts of different types of contract are:

  • Unilateral contract: In this contract there are two parties, one party is known as offeror and other party is known as offeree. In this there one express promise is given by the one party from the another. It is differ from the bilateral contract, in which the mutual promise is given by the both the parties to one another. The offeror has to fulfill the contract, he is under the legal obligation because the offeree is act according to the offeror promise. The offeree cannot be enforced to act according the promise of the offeree , because there is no return promise is given to the offeror.
  • Bilateral contract: bilateral contract is that contract in the mutual promises is given by the both parties to one another. The contract is arise when the promise is made by the offerors to the offeree in return of the promises which is made by the offeree.
  • Special contract- special contract is also bilateral contract. The contract is signed by the both the parties and the copy of the written agreement are keep by the both parties.
  • Simple contract: simple contract are those contract which is either in the form of written or in the form oral. The parties who make the simple contract are free to decide the form of contract in which they make.
  • Verbal contract: the verbal contract is that contract which is made by the parties orally on the telephone and it is necessary that it must be well documented by the parties.
  • Standard contract: the standard contract is that contract in which the document is maintain by the each representative party and signed by the party and it is sealed.
  • Implied contracts : In this contracts the responsibilities is raised from the agreement and the agreement is implied contract that means it not expressed in written or any form of words.
  • Express contract: express contract is that contract in which the terms and conditions are expressed clearly. This contract is signed by any:
  1. Business
  2. Individual
  3. Organizations (Collins, H. (1993).

LO 1.3 Analyze terms in contracts with reference to their meaning and effect

Terms in contract: various statements will be made by the one party for inducing the party for entering in the contract. Thus the dispute is arises that what are the terms of contract, which statement should be considered as the part of the contract. The parties which are under the contract are bound by the terms of contract they are not bind by the statement.(lawhandbook.org)

The terms which are used in the contract are:

  1. Conditions
  2. Warranties
  3. Exclusion of responsibility terms.

Apart from these contracts include the various types of terms but these are the important terms

Conditions term: the conditions terms is one of the most important terms. The parties are not entering in the contract without the condition terms. If any person breach the condition and the condition which is make is false, then the contract will be treated on part of that is void and voidable.

Warranty contract: warranty is less important than the conditions term. The parties which make the condition false and make breach then the party have to pay the compensation for the damages which is suffered by the party on the wrong done by the party.

The court looks the merits of the case then court will consider the circumstances and decide that the term is condition or warranty.

Exclusion of responsibility terms: in the contract there is term which is known as exclusion of responsibility terms. In this term the party is excluded from the responsibility if in the contract there may be something going wrong. If the contracting parties signed the contract, they will be automatically bound by the exclusion. (McKendrick, E.)

Task -2

LO 2.1 apply the elements of contract in given business scenarios

Business contract: A contract between the small owners is known as business contract. Business contract is used in a situation in which the specific duty has to be performed and any service which is providing by the payment of fee. It is also a legal agreement.

There are various element which are required for the legally validity. These are:

  • Parties: Both the parties of the contract are necessary to enter in the contract and the parties in the contract are simply the entities. It is can be in the name of person or any separate entity of the business.
  • Consideration: In contract the consideration is that what each party takes the profit from the business. (Dunlop v. Selfridge, 1915).
  • Competent parties: The parties should be competent for the contract if one of the party is not competent for the contract then contract will be declared to be void. The factors which are considered to be competency that :
  1. Party should not be unsound.
  2. The consent is taken at the time when the party is under the influence of drugs then the contract will be void.
  3. The party is under the influence of drink then the consent is not valid then it will not treat as competent party
  • Legal purpose: There should be a legal purpose in the business contract. If the contract is not for the legal purpose then the contract will be treated as void.
  • Terms and conditions: The terms and conditions are laid down the rights and duties of the parties under the business contract.

No, Brian is not able to claim the reward. Because for the claiming there must be contract between them. Merely giving advertisement in the newspaper and Brian reaches Calais without any acknowledgment of the Adam.

LO 2.2 apply the law on terms in different contracts

There is a valid contract between the berry and local council because the essential of the contracts are exist in this agreement.  The three elements are exist in this case. The barry paid the 50p to the attendant so there is offer from the barry and acceptance from the attendant. The amount paid by the barry is the consideration. And there is contractual relation has been create  between the barry and the attendant. There is a clear intention of the parties to be legally binding as the transaction is that of a commercial nature. The contract which is made between the barry and local council consist the exclusion clause.

So in the case of Chapelton v Barry UDC (1940), the local council is not rely on this clause. He said that the ticket is a only a mere receipt for a reasonable person, and any reasonable person wil not expected that the ticket contain any contractual term. So barry should gave to brought to notice to the attendant for such contractual libality.

LO 2.3 evaluate the effect of different terms in given contracts

The terms in contract are:

  1. conditions, warranty and innominate terms
  2. Exemption clauses

Effect of these terms on contracts is:

  1. Breach
  • Conditions – condition is terms of contract which is used more than the warranty terms. If any party want to enter in the contract they need to use the conditions terms without this term party cannot enter in of contract. if any party breach the conditions of the contract which will effect to the another party then harmed party recouping their from the party.
  • Warranty- warranty is also the term of the contract. It is less favorable then the conditions. In this if any party make the breach. Then harmed party have right to claim the damages and get compensated. But he can’t revoke the agreement.
  1. Exemption clause

In exemption clause the party is excluded from the responsibility if there is going something wrong in the contract. The exemption clause is included in the terms of contract in common law in various ways. These are:

  • The notice is show through display.
  • The notice is given in the document
  • The notice is given by signature
  • The notice is given in the course of dealings.

 Task-3

LO 3.1 Contrast liability in tort with contractual liability

Long time the tort and the contract are common law but there aspects are very different from on another. The common aspects in common law are mentioned below:

  1. Contract and tort both are civil law.
  2. The harmed person can file the suit for taking the compensation for recupping their loss from the defendant. But he cannot file suit for giving punishment to the defendant.
  3. The harmed party files the suit against the defendant but he has needed to prove that the loss which is suffered has not too remote consequences of the defendant breach. The breach made by the defendant in contract and tort have difference in various ares. These areas are:
  • Relation- The parties in contractual liability their relation is created and governed by the contract. But in tort liability the relation between parties is non- contractual and it is imposed by the law.
  • Consent – The consent of the party is necessary for making the legal contract. the consent must be free. If any party entry into the contract required that:
  • Free consent of the party
  • Party is well known about the terms of the contract.
  • In liability there is no need of consent of the party is necessary. As according to the definition the tort involve that party should be taken the intrusion into the safety, health, profit of the other party.
  • The need for awarding damages: In contract when the party is suffered from any loss from the other party then he sue the other party for restoring his positions in contract.
  • In tort liability the harmed can claim compensation and recover his losses but the victim is compensated by the extent of damage which he suffered on the part of defendant.

LO 3.2 explain the nature of liability in negligence

Negligence is a situation in which an individual not intentionally but accidently harm the person. But for the existence of negligence it is necessary that it hurt to someone, if any person done any act which is caused or hurt to someone is known as negligence. The person who done negligence then he will be held liable for pay the damages or compensated the person who get hurt.

Burden of proof is laid upon the claimant:

  1. Duty of care: The claimant has to prove that the defendant is failing to take such care which is needed in the duty, and it will cause to damages to claimant. Then defendant is liable to pay the compensation to the applicant for suffering the loss. There is a case in which duty of care for injury in Donoghue v Stevenson 1932 (Appendix 1, pg.10)
  2. Compensation – the compensation can only be claimed by the claimant if he proved that there is breach of duty by the defendant which harms the claimant and the harm which the claimant suffers is not too remote from the breach. There must be actual suffer or any loss is suffered by the claimant for compensation.
  3. Defendant breach the duty if care- For claiming the compensation by the claimant he has to prove that defendant breach the duty of care, then court also consider the standard of reasonable care. If the court find that defendant fell below the reasonable care then he is liable.

LO 3.3 explain how a business can be vicariously liable

Vicariously liability is a situation in which liability is raised under the common law. In the superior is responsible for the act done by his subordinate. Simply means when any act done by the third party then the superior is liable for them. In business the two liabilities is arise. These are:

  1. Employer’s liability: Under the vicarious liability the employer is responsible for the any act done by the employee. When any act done which is any negligence or omissions by the employee in course of employment then employer is liable for that omission. For making the employer liable on the part of the employee the following condition is to be fulfilled. These are :
  • There must be an employer and employee relationship between them if there is   not the employer and employee relationship then employer is not liable. The court can check the relationship by the 3 tests. These are control test, integration test, and economic test.
  • The tort is committed by the employer.
  • The tort must be committed in the course of employment.
  1. Principal liability: In this principal is liable for any omission done by his agent. For example the pilot is not liable for performing his actions by any person who lent the plane for the purpose of owner, then any action is performed by the pilot the owner of the plane is responsible.

Task-4

LO 4.1 apply the elements of the tort of negligence and defences in different business situations

In tort of negligence there should be harm by the person to the third party accidental not intentional. The essential element:

There must be parties.

  1. Harm made by the person accidental.

Case- Mark decide to go for swimming in hotel swimming pool but there sign board on which  it is written that pool is closed between  7.00pm and 7.00 am and no visitors is allow to swim in the pool but he ignore the warning,  he can’t find the light and  he jump in to the pool. There is no water in the pool and he is badly injured, after that he tears his designer swimming trunks and it is very expensive. He files suit and claiming the cost of designer swimming trunk under Occupiers’ Liability Act 1984.

According to the Occupiers’ Liability Act 1984

Warning- warning is come under the section of section 1(5). This section says that “by taking such steps as are reasonable in all the circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk”. In simple sense owner giving the warning sign is not enough but the trespasser have the risk. So sign must be clear. The warning notice is not adequate for the children who can’t read or write. So it is dangerous for the children also.

According to me the poshplace hotel is liable because they give the warning but according  to section 1(5) warning is not enough for taking the defence against any defence , they have to a take a better step for stopping any accide3nt. Giving the warning sign is not enough.

Defences taken by the hotel

  • The hotel is giving the warning.
  • Mark read the notice and he ignored that warning.
  • Hotel owner is not tearing his designer expensive swimming trunk.
  • There is no water in the pool.

LO 4.2 apply the elements of vicarious liability in given business situations.

Vicarious liability is a situation in which third party is liable for the act done by his subordinate.   Elements are:

  • There must be an employer and employee relationship between them if there is not the employer and employee relationship then employer is not liable.
  • The tort is committed by the employer.
  • The tort must be committed in the course of employment.
  • Principal agent relationship
  • The tort is committed by the agent. (ACAS, (n.d)).

Case- Mark decide to go for swimming in hotel swimming pool but there sign board on which  it is written that pool is closed between  7.00pm and 7.00 am and no visitors is allow to swim in the pool but he ignore the warning,  he can’t find the light and  he jump in to the pool. There is no water in the pool and he is badly injured, after that he tears his designer swimming trunks and it is very expensive. He files suit and claiming the cost of designer swimming trunk under Occupiers’ Liability Act 1984.

Legal Capacity Assignment Help | Contractual Capacity | Legal Capacity

The hotel is not liable for the cost of designer swimming trunk. Under the vicarious liability there must be parental, employer, and principal agent relationship. And in this case these relationships do not exist. Mark is only the visitors of the hotel, so the hotel is not liable. The hotel also given the warning sign and mark ignore that.

Reference

  1. org.au, (2015). What is a contract?. [online] Available at: freeassignmenthelp.com.lawhandbook.org.au/handbook/ch12s01s01.php [Accessed 2 Jun. 2015].
  1. Negligence, C. (2015). Contract and Negligence. [online] Academia.edu. Available at: freeassignmenthelp.com.academia.edu/8160716/Contract_and_Negligence [Accessed 2 Jun. 2015].
  1. vicarious definition, meaning – what is vicarious in the British English Dictionary & Thesaurus – Cambridge Dictionaries Online. [online] Dictionary.cambridge.org. Available at: http://dictionary.cambridge.org/dictionary/british/vicarious [Accessed 2 Jun. 2015].
  1. Anon,(2015).[online]Availableat:freeassignmenthelp.com.uio.no/studier/emner/jus/jus/JUS5260/v12/undervisningsmateriale/Terms.pdf [Accessed 2 Jun. 2015].
  1. Riley, J. (2015). Contract – Express & Implied Terms. [online]Available at: freeassignmenthelp.com.tutor2u.net/law/notes/contract-express-implied-terms.html [Accessed 2 Jun. 2015].
  1. Anon,(2015).[online]Availableat:freeassignmenthelp.com.uio.no/studier/emner/jus/jus/JUS5260/v12/undervisningsmateriale/Terms.pdf [Accessed 2 Jun. 2015].
  1. acas, (n.d). Understanding what vicarious liability means for employers. [Online] Available at: freeassignmenthelp.com.acas.org.uk/index.aspx?articleid=3715[Accessed 18 June 2014].
  1. Collins, H. (1993). The law of contract. London: Butterworths.
  1. McKendrick, E. (2007). Contract law. Basingstoke: Palgrave Macmillan.

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