Aspects and negligence of Contracts
- Aliâ€™s offer is a unilateral offer meaning that it is an offer to the world at large and that any person wishing to buy the rug can present himself to be the owner of the rug, at the same time the client should satisfy all the terms of the offer of Ali.
This type of offer is seen in the case of Carlill v Carbolic Smoke Ball Co 1 QB 256 In this case there was an advertisement in the newspaper placed by a company Â£100 reward will be paid by the Carbolic Smoke Ball Company to any individual who tires the smoke ball as prescript and who will still be a contaminated by the influenza Mrs Carlill purchased some smoke balls and used them according to the directions and caught flu. She sought to claim the stated Â£100 reward. The Court decided that Mrs Carlill the was permitted to receive the reward that was offered as said in the unilateral offer , as she used them as they were prescript. To conclude, the offer of Ali which is also a unilateral offer; it is prÃ©cised enough, there is consideration and thus anyone who is interest to buy the rug has all the required informationâ€™s and is free to come to buy it.
- What is a contract?
Acontractis alegal agreement between minimum two persons which is recognised and enforced in the admin of justice. The agreement consist of an offer and an acceptance Acceptance is the final and unqualified assent of all the term of the offer. An offer is a proposal made by the offeror to the offeree. The advertisement of Ali was an offer, bud sent a letter to try to buy the Rug, but it was not a condition in the offer. The postal rule cannot be used in this case as Ali prÃ©cised in his offer that the first to come with the money in cash will be the owner of the rug the letter from bud was only an attempt not a letter of acceptance. The postal rule has been set up after there was a case named Adam v Lindsell, in this case the court has decided that a contract was set up at the time the letter was posted. This rule is applied when the post is the form of communication between the offeree and the offeror, the letter should contain all valid information and the exact address and then the acceptance take place on the date on which the letter is posted. To conclude this case Bud has not entered into a contract with Ali as there was no acceptance from Bud to the offer of Ali; Bud has not followed the terms of the offer. Therefore Bud has not entered in a binding contract with Ali.
- In this case, there was no contract between Cil and Ali, As Cil came to the shop to buy the rug with the exact amount of money but he brought a cheque and in his offer Ali told that the interested client has to come with the amount of money in cash. Cil has not accepted the contract; there was no acceptance. But Cil tried to do a counter offer to Ali by trying to buy the rug with as cheque.
A counter offer means that Cil has tried to make a new offer that alter any terms of Aliâ€™s offer. A counter offer is seen in the Case of Hyde V Wrench. In this case the court decided that a counteroffer negates the original offer and the offer of Wrench had not been declined before Hyde accepted it and his acceptance created a binding contract. To resume, Cil has made a counter offer i.e. a new offer to Ali ; as Ali has not accepted the new offer there was no agreement thus no contract between them. Cil has no right of action against Ali
- In this case Das did not do a counter offer to Ali, he just asked Ali if he could keep the Rug until he gets money from his bank.
There was consideration from Ali as he told he would wait for Das to come with the money but there was no consideration from Das. Consideration is the price that a party pays in return of a promise. As there was consideration from Ali only, they did not enter into a contract with each other. To conclude there was no contract thus no legal aspects; Das cannot take any action against Ali. Task 2
In this if bob has to sue someone it will be the Tidy skips and not Syd because of the vicarious liability act which is an attempt to make an employer responsible of the damage caused by his employees. It has to satisfy to specific conditions
- The tortfeasor was an employee
- The tort was committed during the course of his employment.
In this case both conditions are satisfied as Syd is an employee of the Tidy Skips Company and the accident was on his way while delivering the car to Bob. But the Tidy skips is going to rely on the exclusion clause; a term in a notice which appears to exclude or restrict a liability or a legal duty which would otherwise arise. There are three hurdles to overcome so that the tidy skips cannot be sued;
- Proper incorporation into the contract, it means that the notice should be inside the contract at the start. There a 3 ways that the incorporation of an exclusion clause should figure in the contract :
- Either a written contract with a signature at the end it is encountered in the case of Lâ€™Estrange v Graucob where the court has decided that as she signed the order form she was bound by all the terms contained in it irrespective of whether she had read the form or not. Consequently her claim was unsuccessful.
- A reasonable notice that figures into the contract at the time the client is going to analyse it. In the case of Olley v Marlborough Court Hotel it is seen that the notice was ineffective as it did not form part of the contract at first when the client looked at the contract.
- Proper dealings if there is an exclusion clause at one time, it does not mean that it will be applicable for the other time that it was not written on the contract. In the case of McCutcheon v MacBrayne the court has decided that there was no consistency in the course of dealings and therefore the clause was not incorporated. The defendant was liable to pay damages.
- The clause covers the loss. Head of loss i.e. the damaged items, here is the wall (premises) and the car (property)
Where required the court would apply the contra-proferentem rule. It is a rule where by any clause considered to be ambiguous should be interpreted against the interests of the party that requested that the clause be included.
- Reasonableness of the clause. It is controlled d by Unfair Contract Terms Act (UCTA)
Quoted from the clause 1977 In the case of goods of a type ordinarily supplied for private use or consumption, where loss or damageâ€” (a)arises from the goods proving defective while in consumer use; and (b)results from the negligence of a person concerned in the manufacture or distribution of the goods, liability for the loss or damage cannot be excluded or restricted by reference to any contract term notice contained in or operating by reference to a guarantee of the goods. As all the three hurdles are not being overcome Bob can sue the Tidy Skips company and he will win his case against them as said above there is a guaranty of the good so he will get the money to repair his car as well as for his wall . Task 3 Types of liabilities
Tort and contractual liabilities Torts are negative acts resulting in loss, damage or hurt to anyone else or against legal caused by a violation of the rights. A tort is a civil wrong, and the wronged person sues in civil court for compensation or an injunction against repetition. On the other hand, contractual liability exists when there is a contract that associates groups together. They are both applied in companies as well as within individuals. They also have differences the contractual law is the "result of agreements" while the tortuous is "the result of law". Contract damages are based on expected losses compared to tort damages which are compensatory. This case is about the law of negligence which was settled after the case of Donoghue v Stevenson in this case the court has decided that Mrs. Donoghueâ€™s claim was successful. This case established the modern law of negligence and established the neighbour test. There are rules to follow so that the negligence claim is successful; 1. The defendant owed a duty of care to the people; 2. The defendant violates that duty;
- The breach of dutycaused damage .
In the case of Alice, Bobâ€™s supermarket owes a duty of care to his neighbours i.e. the customers. Here the occupiers liability is concerned. The occupiers liability bases a common law of duty of care on the occupiers of the promise to its lawful visitors. The occupier can be anyone who has sufficient control on the premises, in the case of Wheat lacon Under the vicarious liability which is an attempt to make an employer responsible of the damage caused by his employee. This in this case Alice will have to sue Ben the owner of the supermarket, also because he due to his customers a duty of care. Alice can sue the employer of the supermarket who was cleaning the floor as he put the signs at the front door and Alice who was leaving the supermarket was not able to the â€œwet floorâ€ signs. References: Website:
E-lawresources.co.uk, (2015). Carlill v Carbolic Smoke Ball Co
. [online] Available at: http://www.e-lawresources.co.uk/Carlill-v-Carbolic-Smoke-Ball-Co.php [Accessed 1 Jun. 2015]. E-lawresources.co.uk, (2015). L'Estrange v Graucob
. [online] Available at: http://www.e-lawresources.co.uk/L'Estrange-v-Graucob.php [Accessed 5 Jun. 2015]. E-lawresources.co.uk, (2015). Olley v Marlborough Court
. [online] Available at: http://www.e-lawresources.co.uk/Olley-v-Marlborough-Court.php [Accessed 5 Jun. 2015]. E-lawresources.co.uk, (2015). McCutcheon v MacBrayn
. [online] Available at: http://www.e-lawresources.co.uk/McCutcheon-v-MacBrayn.php [Accessed 5 Jun. 2015]. TheFreeDictionary.com, (2015). head loss
. [online] Available at: http://encyclopedia2.thefreedictionary.com/head+loss [Accessed 5 Jun. 2015]. Legislation.gov.uk, (2015). Unfair Contract Terms Act 1977
. [online] Available at: http://www.legislation.gov.uk/ukpga/1977/50 [Accessed 5 Jun. 2015]. E-lawresources.co.uk, (2015). Donoghue v Stevenson
. [online] Available at: http://www.e-lawresources.co.uk/Donoghue-v-Stevenson.php [Accessed 5 Jun. 2015]. Markedbyteachers.com, (2015). Compare torts liability with contractual liability and comment on the appropriateness of the former in business operations. - University Law - Marked by Teachers.com
. [online] Available at: http://www.markedbyteachers.com/university-degree/law/compare-torts-liability-with-contractual-liability-and-comment-on-the-appropriateness-of-the-former-in-business-operations.html [Accessed 25 Jun. 2015]. Name of cases
- Carlill v Carbolic Smoke Ball
- Adam v Lindsell
- Hyde V Wrench
- Lâ€™Estrange v Graucob
- Olley v Marlborough
- Donoghue v Stevenson
- McCutcheon v MacBrayne
- Wheat v Lacon