This situation involves matters regarding consideration. Consideration must be money or money worth which in the case of Currie v Miss was defined as: “some right, interest, profit or benefit accruing to the one party, or some forbearance, detriment, loss of responsibility given, suffered or undertaken by the other. ” Where one side performs its part of the agreement, this performance can be looked at as detriment to the party performing and a benefit to the other party, thus providing the consideration for the other party’s promise.
Here in the current situation Aim performed his part of the work further to the promises made to him. Since he has provided the consideration in the shape of performance therefore Yakima and Jane cannot go back on their promises. Principle of Liability Distinction between liability in tort and contract Both tort law and contract law are the branches of civil law. The breach of duty in tort attracts civil penalty and so does the breach of contract. However, there are fundamental distinctions between the two branches when compared with each other.
The liability for breach of contract arises only in respect of that party with whom the contract is being made, whereas, the liability in tort arises even when one has not entered into contractual relationship with another. Once liability is proved in tort the victim is awarded damages to place him in the position had the tort not taken place whereas in contract if the breach is proved then plaintiff is awarded damages to place him in the position had the contract been performed.
That is why the concept of remedy for breach of contract is referred o as ‘performance and damages’ that the court requires the breaching party to perform the contract as well as pay damages to the plaintiff. However, the court may also award only ‘damages’ particularly in those instances when the performance becomes impossible. Liability in Negligence Liability in negligence arises from the existence of broad categories of duty of care required of one party towards another. For example, drivers are required to take duty of care towards pedestrian and are held responsible for the harm occurred to pedestrians due to their negligence. These categories have been established over time by the courts. One of the best exposition of the rationale behind recognizing liability in negligence on part of one person towards another despite the fact that no contractual relationship exist is given in the case of Donahue v Stevenson whereby the court held that one person owes a duty of care towards those who he can reasonable foresee shall be affected by his actions and that the breach of such a duty gives rise to liability in negligence. Over the years the courts applied this rationale to broaden the categories of recognized classes of negligence.
This mainly includes (but is not limited to) classes such as driver towards pedestrian,2 manufacturer towards end consumer,3 employer towards employees. Vicarious Liability Under the principle of vicarious liability one person may be held liable for the tort committed by the other. An employer can be held liable for the negligent conduct of his employees. However, one must satisfy three criteria to establish vicarious liability. These are given below: the alleged toreadors was an employee the employee committed a torts the employee committed the tort in the course of employment.
For third criteria, Salmons Test is employed by the courts as per which “A master… Is liable even for acts which he has not authorized, provided that they are so connected with acts which he has authorized that they may be rightly regarded as modes – although improper modes – of doing them. ” Hence, in Home Office v Dorset Yacht Co. The Home Office was held vicariously liable for the tort committed by the Barstool Officers because they being the employees of the company allowed seven boys to escape from a training camp in Poole Harbor while they were asleep.
The boys then stole Co’s boat and caused damage to other boats in the harbor. The court held that Barstool authorities owed a duty of care to the owners of property near the camp and the Home Office being their employee was vicariously liable. Standard Form Contracts Standard form contracts are usually utilized in securing consumer transactions. They are written in advance and produced at the time of securing transaction with no or little choice with consumer to propose different terms.
Therefore, despite the fact that they are convenient and ensure speedy transactions, they an be rigid for consumers. That is why the law has the mechanism against unfair terms in such contracts which is regulated by a number of statutes and case law including Sale of Goods Act 1979, Unfair Terms in Consumer Contracts Regulations 1999, unfair contract Terms Act 1977. The clauses within the contract are also usually named after their type e. G. Clauses which are aimed to exclude the liability of the business against any harm to consumer are called exclusion clauses.
Such exclusion clauses may be valid provided consumer has not been misrepresented . However, such clauses must be reasonable. 8 Moreover, the clause can only cover the breach which it expresses to cover and thus cannot cover the breach of any other kind. 9 Courts tend to be less restrictive against clauses which limit the liability as compared to the ones which totally exclude the liability. 10 An example of standard form agreement is the agreement between British telecommunication service provider “Talk Talk” and their customer. This can be found online. 1 The three instances of limitation and exclusion clauses in their tankard form agreement are as follows: “We are not responsible for and are not liable to you for the content, availability or modifications to such third party services and exclude all losses, liabilities or damages you may suffer or incur arising out of your use of such third party services. ” 12 The company excludes its liability ‘for any loss of business, contracts, profits, anticipated savings, goodwill, or revenue” 13 It also excludes its liability for “loss or corruption of data. “14 The ACTA 1977 governs the exclusion clauses contained in a business context i. Regarding business liability. 15 The CITRIC 1999 on the other hand is applicable to consumer contracts only which it defines as a person acting for non-business purpose. Sale of Goods Act 1979 is different in the sense that it stipulates implied terms i. E. Those terms that form part of each contract whether or not they are mentioned in the contract between parties. 16 Appendix Appendix – 1 Sands Brown took her car into the shop to have her tires rotated. As the mechanic performed the agreed upon service, he noticed that there were a few questionable lug nuts.
