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Contracts and Negligence Assignment

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    If a single one of elements mentioned above is missing, the agreed contract will become illegal. The main elements are explained below: Offer: This is the first element in a valid contract. According to Peel (2010) an offer s “an expression of willingness to contract on specified terms, made with the intention that it becomes binding once it is accepted by the person to whom it is addressed”. An offer must be communicated and should be explicit.

    The person putting up the offer is referred to as offer whilst the individual who receives the bid (offer) is referred to as the offered. However, an offer must be distinguished from invitation to treat. There are two cases to be considered here. One case is Gibson v Manchester City Council (1979) Mr. Gibson was sent a letter that informed him the council ‘may be prepared to sell the property to IM for EH,180 freehold”. The City Treasurer stated in his letter that “This letter should not be regarded as firm offer of a mortgage”.

    Included in the letter was the instruction on how to complete and return the enclosed application form to make a formal request to purchase the property. Mr. Gibson did as he was requested but because of unanticipated change in political leadership of the council, the proposed action to sell houses to tenants was changed and Mr. Gibson was notified accordingly that it would no longer be possible for him to buy the house. Initially the Court of Appeal affirmed there was a binding contract teen the the council and Mr. Gibson but the verdict got over ruled on appeal to the House of Lords.

    The outcome of the judgment states that the first note forwarded by the Council was not an offer to sell rather it is an invitation to treat and further stated Mr. Gibson did not accept an offer instead made one when he sent his completed requisitioned form. However, in an identical case of Stores v Manchester City Council (1974), Mr. Stores puts in a bid to purchase his council property and he was forwarded an ‘Agreement for Sale of a Council House’ form which he signed and posted it back to the Council. The council received his ply before the political reform affecting the sales of house to council tenants transpired.

    The Council contended that the ‘Sale of Agreement Form to sell the Council House’ was not an offer and in this instance no contract was contracted. However, the Judges failed to agree and ruled that the form was indeed an offer immediately Mr. Stores signed the form and forwarded it back to the Council. It is pertinent to point out the differences between these two similar cases. In the case of Mr. Gibson no ‘Agreement for Sale’ was prepared and Mr. Gibson did not sign. Whereas for Mr. Store’s case there was an agreement; consequently, the arraigning has been done and an agreement attained.

    Acceptance: Is defined by Chartered Institute of Taxation as “any words or actions signifying the offers consent to the terms proposed by the offer”. Acceptance must be final and unqualified. Acceptance should be conveyed to the offered. The wordings contained in the terms of the acceptance must be exact wordings in the terms of offer. Carla” v Carbolic Smoke Ball Company (1891 ) case refers. The company placed an advert in a newspaper, and in addition put a sum of cash on deposit with a bank and say they would pay anyone who contacted influenza while using heir products, a remedy for curing flu, coughs, colds, bronchitis.

    It stated that anyone who had the ailment after taking the medication shall be recompensed with El 00. A consumer, Ms Cargill, took the medication and caught the flu. The firm was sued by her for damages and her case was successful. Consideration: “means something of value is given by one party to the order: ‘it is the price of the promise’ (Chartered Institute of Taxation 201 3) In Dunlop Pneumatic Tire Co. Ltd v Selfridges & Co. Ltd. (1915) Consideration is “an act of forbearance of one party or the promise thereof, is the party which the promise of the other s bought and promise thus given for value enforceable”.

    Selfridges broke the term of agreement and Dunlop sued and lost the case because Dunlop could not enforce the contract because they did not provide any consideration for the promise made by Selfridges. It is important to highlight that ‘past consideration is no consideration. This means that anything done before the promise in return is given is no consideration and it is not adequate to make the promise binding. Types of consideration include: Executed (present) this is when an act is completed. An example is a Unilateral entrant Executors this is when promises have been made in exchange for performance of acts in the future.

    For instance, a Bilateral contract Past consideration. In addition there are certain requirements for consideration to be valid and these are: It must not be past. However, there are exceptions such as: (a) Previous request where the promissory has previously asked the other to provide services. Lamplight v Breathing (1605) (b) Business Situations, that is, when a thing is done in business and both parties perceived that it will be paid for. Careers Patents (1892) refers. (c) The Bill of Exchange Act 1882 Section 27 1) says “provided that previous debt is valid for a bill of exchange”.

    It has to be forbearance to sue that is, if an individual has valid claim against another person but promises to forebear the enforcement. Combo v Combo (1951) & Alliance Bank v Broom (1864) It should be passed at the request of offered. Durra Parkas v Balder (1880) It must move from the promises. Dutton v Poole (1677) & Twaddle v. Atkinson (1861) It must be sufficient. Thomas v Thomas (1842); Chapel v Nestle (1960). Cannot consist solely on sentiment value White v Bluest (1853) It must be legal that is not doing things that are immoral Wyatt v Kerning and

    Ferrous (1933) Performance of existing duty that is, person carrying out duties that under general rules, they are required to do will not provide consideration. Traditional authority for rule: Collins v Goodyear (1831). Carrying out additional duties: Glasswork Brothers v Glamorous County Council (1925) Existing Contractual Duty this is where an individual has promised to do a thing already obligated to them under a contract that will not amount to a genuine consideration. (Stick Myriad (1809) 2 camp 31 7; Hartley v Pontoons (1857); William v Roofer – if a 3rd party is owed for existing contract Duties to pay debts.

    This is where debts are paid in installment. This is not a valid consideration and it is known as Panel’s Case. Fakes v Beer (1884) Intention to create legal relations: Parties to the agreement must intend to go into a legally binding agreement or contract. This is an intention from the two involved parties to go into a lawful and binding association. If there is no intention the agreement will be void. Intention to create legal relations could be: Commercial or business relations. Quillwort Benson Ltd v Mining Corporation Bad (1989), or, Social friend’s relation.

    Simpson v Pays (1955) and Family or domestic relations. Buffalo v Buffalo (1919). Capacity: All those involved in a contract should possess legitimate ability to go into it. An individual unsafe physically, demented or a minor under the age of 18 cannot go into a binding. However, certain groups of people who have limitations such as mental health issue, drunks and minors under the age of 18. Those are the mentally ill, Minors under the age of 18 as stipulated by the Family Reform Act 1969. E. G. Chapel v Copper (1844) where a service was considered necessary but in the case of Nash v Inman (1908).

    Where a waistcoat was supplied to a minor would have been considered necessary but in this case it was the other way round as, purchase of the waistcoat is not necessary because the father had already provided the minor with several waistcoats. If a minor procure a luxurious thing and did not acquire because of necessity, the minor is liable and be responsible for his action. Privy of Contract means that “a contract cannot under normal situation confer rights or impose responsibilities emerging from it on any person except those involved in it.

    It is also known as “Rights of the third party Act 1999′. Triple (2004) It sin also the relationship between the parties to n agreement, though there are exceptions, Q. 1. 2. Face to Face (Verbal or Oral): This is “an agreement based on spoken promises, however it may be difficult to prove and it legally binding and both parties will understand what they have agreed to and bargained in good faith” www. Owe. Com Phillip v Brooks (1919) case refers. It is case that involved a thief who falsely pretended to be Sir George Bulldog and bought jewelry under Sir Bulldog’s name with a cheese.

    The thief convinced the jeweler to part with the ring because his wife’s birthday was next day. The jeweler was convinced the as indeed Sir Bulldog after checking the address directory which tallies with Sir Bulldog’s address details. As soon as the rogue left, he sold the ring under the false name of Mr. Firth and vanished into thin air. The claimant instituted a unilateral mistake of identity legal action. The case was affirmed that the transaction was not void for mistake because the parties transacted a face-to- face contract and in law it was assumed they dealt with the person before them and not the person they claimed to be.

    Written Contract: This is a written document indicating an agreement between two individuals. The parties can e human beings, organizations and businesses. All parties will have to append their signature to the contract to be legitimate. It also acts to protect both parties from breach of contract. Mow. Weeklies. Com On-line: This is also known as Distance Selling when goods are sold to consumers void of face-to-face contact and done through Internet, e. G. Amazon. Co. UK, eBay, booking vacation and on line banking. This type of transaction is governed by the Distance Selling Act 2000.

    Four contractual elements are contained in on-line contracts: offer, acceptance, consideration and intention. Contracts by Deed: “is a written comment signed by the promissory and it must be clear be clear in the wording of the document that is intended to take effect as a deed. The must be witnessed by a third party. (Chartered Institute of Taxation 2013). The property title will not be given to the potential buyer until the final payment is made. It is also referred to as Sales Contract. Q. 1. 3. Terms are the contents of contract.

    It is used in the civil law, to denote the space of time given to the debtor to discharge his obligation. Terms could be expressive resulting from positive stipulations of an agreement. It could be of right or of grace it is not within the agreement. Terms are of grace when it is afterwards granted by the judge at the requisition of the debtor. Contracts terms may be expressive or implied and could be classified as either: conditions, or warranties or nominate terms. Www. Tutor. Net An express term is one that has been particularly stated and agreed by both individuals at the time the contract is executed.

    It could be written or oral. Vim. Tutor. Net Implied terms are words or stipulations that a court presumes were planned to be incorporated in a contract meaning the terms are not expressively mentioned in the contract. Www. Lowercases. Co. K It could be: Terms implied through custom, Hutting v Warren (1836) CHEW JOG; In fact. The Morocco (1889) 14 PDP 64 At Law Shell UK v Locks Garage Limited (1976) 1 WALL 1187 There are two main types of implied term: (a)Terms implied by statue for example Sales of Goods Act 1979.

    There are about four key provision but I will use Section as an example that says “goods should be of ‘satisfactory quality meaning they should be up to standard a rational individual would consider “satisfactory” and if the purchaser says the good is being purchased for a distinct reason, there is an implied terms the products re suitable for the intended purpose. Win. Tutor/net (b) Terms implied by law courts an example is if the courts held that landlords of blocks of flat should keep the communal areas including lifts, stairs etc. N a reasonable state of repairs – so that the term was implied into the rent contract. An example case is Liverpool City Council v Irwin (1977) AC 236 HAL Nominate term this when the parties involved fail to classify the commitments in the contract, the court will hold that they are unattested and apply the ex-post ‘consequence of breach test’. The judgment given will depend on the magnitude of the breach. Case of: Hong Kong Fir Shipping v Sukiyaki Samisen Aisha (1962) 2 CB 26 refers. Condition is a paramount term of the contract that goes deeply into the contract.

    For example if a proviso is contravened the guiltless party is entitled to renounce the contract and claim compensations. In the matter of Passwords v Speers (1876) 1 JOB 410. Madame Passwords entered into contract to perform as an opera singer for three months. She was ill five days before the opening night and unable to perform for four days, held that she breached condition and that Speers were entitled to end the 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. Betting v Gee (1876) JOB 183.

    Trader puff is an expression of exaggeration made by a sales person or found in advertisement that concerned the goods offered for sale. It represents opinions instead of facts and is usually not considered a legally binding promise. Example of trader puff: “this is in good shape” and ‘Your wife will love this car” Representation Term “is used in reference to any expressed or implied statement dad by one of the parties to a contract in the course of negotiation to another regarding a particular fact or circumstances that influence the consummation of the deal and if not honored the innocent party may bring an action for misrepresentation. There are three types of misrepresentation as follows: Innocent, fraudulent and negligent misrepresentations (e-law resources) Learning Outcome – 2: Mini-case A The case above is an expressive term Bi-lateral case one involving Finn and her uncle which involves offer and acceptance. Uncle Arnold was the offered and Finn the offered. The offer here was El 5,000. The main element of this case was that of acceptance.

    The agreement failed due to non-acceptance and time as consideration because the uncle said “fairly quickly’ with a third party involved “l have already had a good offer from my colleague” so the following is to be considered when giving the verdict: Term: Offer El 5,000 and Acceptance by Finn, Bi-lateral, both written and expressive Consideration – Time fairly quickly Third Party involved with better offer (Priority) Even though no clear straight form of acceptance occurred it is still a legal ending agreement but in this case Finn cannot claim compensation for breach of agreement because it failed due to her delay and negligence in not responding in time. Therefore, if Finn decides to go to court her case is not substantial enough to award her for damages. However, under vicarious liability Finn can make a claim in court if she wishes. An example is Harvey v Apace (1893) AC 552 Privy Council. This was a case between Harvey and Apace in which correspondences were exchanged regarding sales of bumper Hall Pen asking for the sale of the property. This was a distance offer as it was done wrought telegram). When Harvey asked “Will you sell us Bumper Hall Pen? “. Face responded “Lowest price for the Bumper Hall Pen CHECK’ to which Harvey responded “We agree to purchase Bumper Hall Pen for IEEE asked by you. Please forward your title deed so that we may get early possession”. Unknown to Harvey Face was already negotiating with Kingston Council. The transaction failed and Harvey sued Face. The issue in this case is “was that there was no clear offer” from Face to sell the property to Harvey so the Privy Council ruled that “An offer cannot be implied by writing. It can only be concrete and sound.

    The appellant Harvey cannot imply that Face made an offer when he did not” (www. Supernumerary. Com) Mini case B This is a distance, face-to face executed consideration and unilateral case involving offer of intention made by Mrs. Smith open to everyone so no need for acceptance in this instance. The offer here is the reward of E 10 if her lost cat is found which did not involve transport cost. Mrs. Smith refusal to David EYE which include cost of transportation is valid and justified as payment for transportation was not included in the advert so therefore David has no case ND could not claim for compensation if he goes to court. See Leonard v PepsiCo.

    PepsiCo placed a superfluous television advert stating “Pepsi points” if Pepsi was drank highlighting a young person arriving at school in Harriet jet and mentioned that the Harrier jet was for 7,000,000 Pepsi points. Leonard attempted to collect the Harrier jet by bombarding 15 Pepsi points accompanied with a cheese for $700,000. 00 in order to obtain the Harrier jet. PepsiCo refused the delivery of the Harrier jet. Leonard lost the case because advertisement was not an offer. Mini- case C Mrs. Harris, the owner of three rented houses in Sexton, asks her next-door neighbor, Ted, to collect rent from the tenants for her while she is abroad on business.

    Ted collects the rents and when Mrs. Harris returns, she says to him, “I’ll give you EYE for your work”. Later Mrs. Harris refuses to pay Ted. Here is a bi-lateral verbal, expressive offer and acceptance case between Mrs. Harris and Ted. The mall contract element issue here is consideration because the act has already been performed by Ted before the agreement was met. Even with no binding agreement, the ‘rule of consideration applies in this case’ because inconsideration can never be past or post, therefore in this case, Ted can sue Mrs. Harris for consideration and breach of Contract for his claims. For example see the case of Labrador v Pollard Group, Inc. 2004) Mini-case D The above is an offer and acceptance bi-lateral expressive written contract case between Lynx Cars Ltd and Roadster Ltd though the agreement is not legal binding. The offer is Lynx Cars Ltd whilst the offered is Roadster Ltd. The contract term as stated here are the quantity of cars (2000), time limit of five years with no financial loss incurred. Roadster Ltd was informed in good time of just four weeks cancellation into the agreement. My verdict is that for Roadster Ltd to make a claim the agreement must be legally binding which is missing in this case. Therefore Roadster can withdraw from the agreement but cannot make any claims for compensation because of reasons given above.

    Mini-case E The above case was initially a unilateral case because it was advertised and opened to all but after the agreement was signed between Slick Cars and Paul it became Bi-lateral. The agreement was also an expressive one with contract term of conditions, warranty and trade puffs met. However if in the future something goes wrong with the car, Paul is not entitled too claims because all the sales conditions were met as of the time of purchase. Also if the car was discovered to have been stolen, Slick Cars Ltd and not Paul will be liable for prosecution. The warranty on the car includes the refund of road tax payment and an implied term of “buying a car from their hundreds of cars”.

    All the conditions regarding the sales of the car have been met bargain including the traders puff. My advice to Paul is to go ahead and buy the car as he has no liability regarding the car even if the car was to be a stolen one. However if the Trade puff does not represent what the advert says, or any of the condition is missing, Paul has the right to terminate the agreement his money will be refunded but will not be entitled to any compensation. However if the Trade puff defaults and Paul has evidence to support it, Paul can sue for compensation. Verdict Paul to buy the car but he should bear in mind that the warranty cannot end the contract but again, he could be compensated. Cargill v Carbolic Smoke Ball Company (1891) case refers.

    Mini-case The above is a clear case of tort negligence and breach duty of care. Negligence allure on Duty of Care on both the part of the Council and the Leisure Centre. The Council’s notice was partially obscured so not visible to Jim and his wife, also the Council should have cut the overgrown shrubs failure to do this is maintenance negligence as this accident could have been prevented in addition Jims car damaged by the Council van is a health is an implied term and safety issue for which the Council is liable. The Leisure Centre on the other hand did not show any Duty of Care when the accident happened and therefore liable to pay for injuries and other related costs.

    In view of the above, it is my considered device that Jim and his wife get compensated. See Blake v Galloway (2004) CA Q. 3. 1 Tort is a civil wrong committed against an individual and originated from the Latin word torture meaning “twisted wrong” and also conceded in court law as arguments for a legal action that can be resolved through compensations. See, e. G. Smith v. United States, 507 U. S. 197 (1993). This is a case involving the of a husband who got killed whilst working for a private firm under contract to a Federal Agency in Antarctica a region with no recognized government and without civil tort law and the wife sued The United States under the Federal Tort Claims Act (FTC) for wrongful death in action.

    The case was dismissed by the District court for lack of jurisdiction because Mrs. Smith’s case was stopped by Feta’s foreign country exception policy that states that the statute’s waiver of sovereignty immunity does not apply, however, the Court of Appeals affirmed. (HTTPS://supreme. Justas. Com/cases/federal/us/507/179/case. HTML) The principal reason for tort law is ensuring compensation is given for the injuries sustained and to prevent others from committing the same harms. Inclusive of the types of injuries the injured party may recover are: loss f salaries fitness, pain hardship, and rational medical costs. These are inclusive of both present and future expected losses.

    Tort could be in form of trespass, assault, battery, negligence, products liability, and intentional infliction of emotional distress Torts are classified into three categories as follows: Intentional torts: These are intentional acts that are rationally and foreseeable done to injure another person. Intentional torts are unethical behaviors the defendant knew or should have known could transpire as a result of their actions or inactions, an example is to intentionally hit a person. Case of Brome v Perkins [1 987] Crime LORD 271 refers. The appellant was diabetic and drove in an unsafe manner whilst suffering from hypo-glacially, a low blood sugar level caused by an excess of insulin in the bloodstream. His claim of non-insane automatism failed because of evidence that he had exercised conscious control over his car by veering away from other vehicles so as to avoid a collision and braking.

    His was found guilty for driving without undue care and attention Negligent torts are the most common tort used to describe behavior that constitute unreasonable risks to harm to a person or property or where the pendant’s actions were irrationally precarious. Vaughan v Menlo (1837) 3 Bingo NC 467 in this case the defendant’s haystack caught fire because of poor ventilation. The defendant had been warned several times that the haystack could cause fire but he contended he had used his acumen and did not anticipate a risk of fire. The court held his logic was inadequate. He was adjudged by the standard of a reasonable man. (womb. E-lowercases. Co. UK) However, it pertinent to mention that not all wrongful act is a tort. In order for a tort to be constituted the following must exist: Every wrongful act is not a tort.

    To constitute a tort, There must be an unjustified action carried out an individual person The unjustified action must be serious in nature to have given warranted a judicial relief and Such judicial relief should be in the manner of an action for UN- established injuries. Strict liability torts are when a person places another in danger in the absence of negligence because he possessed weapon, animal or product and it is not compulsory for the plaintiff to prove negligence meaning :mess area”. Http://education-portal. Com See Sweet v Parsley 1970 HAL This is a case involving landlady who lets rooms to tenants however she kept a room for herself and visits once in a while to collect her letters and the rent. In her absence the house was raided by the police and cannabis found.

    She was found guilty under so of the Dangerous Drugs Act 1965 (now replaced), of “being concerned in the management of premises used for the smoking of cannabis”. She appealed and claimed no understanding of the situation and could not be expected to rationally have acquired such understanding. Her conviction was revoked by The House of Lords, due to lack of proof that she purposely rented her house o be used for drug-taking, since the statute in question created a serious, or “truly criminal” offence, the judgment convicting her would have grave consequences for the landlady who is the defendant. Lord Reid stated that “a stigma still attaches to any person convicted of a truly criminal offence, and the more serious or more disgraceful the offence the greater the stigma”.

    Lord Reid in furtherance pointed out that it was inappropriate to levy her for total liability for this type of wrongdoing because the people who were in charge for renting properties are not likely to have anticipated everything that their tenants were ongoing. It is imperative to mention that there are both similarities and differences in torts. Similarities between tort and contract laws The above two laws share the same similarities in that they are both civil wrong. In tort the injured person will claim damages with a classical example of Donahue v Stevenson (1932) whilst in contract the injured person will sue for compensation an example is the case of Dunlop Pneumatic Tire Co. Limited v New Garage & Motor Co Limited (1 91 5) A C 79.

    In both tort and contract violations monetary rewards or any payment that will atone for the losses Differences teen tort and contract laws are shown in the table below: Tort Law Contract Law No relationship with the claimant, could be total stranger Claimants could be known to each other and parties to the contract Consent not necessary liability is warranted by one individual against another Consenting parties are involved Tort is punitive Contracts is positive, creative situations Tort is used to claim compensation by the injured party Contract involves two or more parties In tort damages are imposed by court or negotiated In Contract compensations are awarded as stipulated in the contractual agreement Tort law is not codified Contract law is codified Tort law safeguards right in ERM available against everyone It protects rights in personae meaning against a particular person Damages are UN-liquidated Damages are liquidated Source: http://www. Academia. Deed Q. 3. 2 Negligence is the failure to take reasonable care or exercise the required amount of care to preventing harming others.

    An example is where an accident occurs that injured another person or cause damage to the car because the driver was driving erratically, the driver could be sued for negligence. Http://www. Taskmaster . Com Negligence in behavior and duty usually have a disastrous effect on individuals and the society as whole, and in order to protect the society from these dangerous acts, legal steps are taken such as included in the elements of negligence. Consequently, elements of negligence as explained below: Duty of Care: is the statutory obligation made mandatory on every rational human being of sound mind to exercise a level of care towards an individual, as reasonably in all the situations, so as to avoid injury to other fellow human being from being or damage his or her property.

    An example is the celebrated case of Donahue v Stevenson (1932) in which the claimant drank ginger beer bought by her reined containing a dead snail causing her harm . This case brought about the “neighbor principle test” and according to Lord Aitkin “Reasonable care must be taken to avoid acts or omission which one can reasonably foresee to injure one’s neighbor and this brought about the question ‘Who then in law is my neighbor? ‘ Neighbors are those individuals who will be closely and directly affected by one’s act” This case led to the Neighbors principle.

    Contracts and Negligence Assignment. (2018, Jun 08). Retrieved from https://graduateway.com/contracts-and-negligence-assignment/

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