Aspect of Contract and Negligence
Contents
The
contract law and liability in negligence law is very essential in business
organizational casualties. The context below will discuss different terms of
contract and its effect in business scenarios. Application of different
elements of counteract, evaluation of elements of contract, application of law
on terms of contract, definition of different types of contract and analysis of
express term and implied term will be discussed
in the context. Liability in tort, nature of liability in negligence and
vicariously liability and its effect in the eye of law also are discussed in
the subsequent pages.
Contracts
referred to an official agreement in the form of oral or agreement. According
to Tritely (2012) contract is “A
promise or set of promises which the law will enforce”. There are some elements
in a valid contract and their importances are described in below:
Agreement: an agreement is formed when one
party accepts the offer made by the other one and involves a meeting of the
minds. In other sense, in an agreement there must have an offer and against it
an acceptance. When an offer is made the counterpart will know what is offered
than he will make a consent or agreement. Without proposal and acceptance or
agreement on an issue no contract can be formed as it is the foundation of a
valid contract.
Consideration: It also a very urgent element in
a contract to be valid. There must have a consideration between promise and
promissory and it would be mean that the other person would give something in
return. There should be a consideration so that it would be legally valid. As
for example, client Perry made a contract with Essential IT support with an agreement of paying 75 pound as consideration.
Intention to create legal relation: it is essential to have the
element in a contract to be valid. Though the Contract Act 1950 is silent in this regard, the parties in a
contract must have intended their agreement to have legal consequences. The
contract could be subject to a lawsuit if there is no intention to create a
legal relation in a contract and it makes the contact enforceable.
Capacity: it refers to the legal capacity
of the parties to enter into a contract. Insane and fewer than 18 year old
people are not eligible to make a contact. If there occur a contract between
incapable parties there will be no legal action if the contract is tort so it
is utmost for a valid contract. Without capacity the contract will be void.
Consent: it is very important and
essential for a valid contract to have a free consent of both parties. They
must agree on something is the same time at same sense. This is the real consent
from the inner part of contractor and it gives positive impression to
performance of the liabilities created form the contract.
Legality: the purpose of the agreement
must not be illegal or contrary to a public policy to be a contract valid.
According to the legal law any contract that is deleterious to the society or
for the country is not acceptable. So; legal form of contract, among legal parties
for legal product or services are necessary for the valediction of a contract (Tritely, 2012).
There are
different forms of contact based on action of contract and based on number of parties.
Types of contract and their impact are discussed below:
Contract by deed: contract by deed refers to the
contract that is completed with a formal legal document signed, witnessed and
delivered to effect conveyance or transfer of property or to create a legal
obligation. It is the most safe contract types as it provides the opportunities
to sue or take any legal action to the seller o buyer if any counterpart deny
or malinger to fill the consideration (Atiyah,
2000).
Simple contract: the contract which is not in
deed is known as simple contract. This type of contract is made in any
different way of deed contract such as in writing, orally or may be implied
from conduct. It is not reliable and dependable like contract by deed but this contract
is law enforceable.
Bilateral contact: it is the contract in which a
promise by one party is exchanged for promise by the other. It is the basic
form of contract and most of the contract fall into this category. Is this
buyer promises to pay for good and seller promises to deliver the goods. In
this contract both promise exchangers become enforceable.
Unilateral contract: in this contract one party to do
something in return for an act of the other party. This is called a breached or
broken contract. As for example, Jen promises a reward to Den if he fined his
lost wallet, here only Jen is bound to do anything. But if Bella seen the offer
and found the wallet and returns than Bella will be entitled to the reward (Hofstra, 2012).
A
contract consists of various terms and that is express term and implied term.
The meaning and effect of both terms are likely below:
Express term
Meaning Express term: it is an open agreement between
an offered and receiver. The express term of a contract can be performed in a
written paper or via an electric writing way or telling or verbalization. Which
terms of contract is followed strictly by both parties that contract terms are
called express terms. Express term in a contract makes it legal or void. In
this the rules that should be performed by both parties are fixed by them
before signing the contract (Clarck ,
2012).
Effects of Express Term: the effect of express term of a
valid contract is essential and deep. By virtue of express term in a contract
no party can escape from the obligation, or can’t do anything illegal. It is also
not possible to avail the positive result of the contract toward one’s own side
by any unfair means. In a single word the effect of express term in a contact
is that it makes a contract valid and longer lasting.
Implied term
Meaning of Implied term: sometimes the terms of a contact
are not mentioned by either any of the parties and not included in the contract
cause of not making the contract by commercial sense without that term. Rather
here terms are implied by courts or statutes. Implied terms are the word or
provisions that a court assumes were intended to be included in a contract.
Condition, warranty and nominate terms are included in implied term.
Effects of Implied terms: this contract is lawful but not
preferable. In applied terms there can be a condition, a warranty and in
nominate terms. If a condition is breached the suffered party has the right to
sue the wrongdoer for the damage. If a warranty has been breached the suffered
party can sue but cannot terminate the contract to return to their pre
contractual position (Hare, 2012).
Hofstra (2012) refers that the elements of
contact must be performed for the valediction of a contract. There are some
rules and regulations in this regard. The applications of the elements of
contract in given scenarios are in subsequent phases.
Offer and acceptance: in scenario of, here setting an
auction sale is an offer to sell Plaintiff’s goods on the other hand the
defendant who has made the highest bid a receiver. But in this scenario no
acceptance were occurred as defendant withdrew his bid before falling auctioneer’s
hammer.
Consideration: in scenario we can see that on 6
June Wrench offered his estate to Hyde for £1000 and Hyde offered £950 and later £1000
to pay for against the offer as
consideration. It is known that consideration means offering anything in return
of offerings.
Consent: it is very important and
essential for a valid contract to have a free consent of both parties. They
must agree on something is the same time at same sense. In the scenario of Essential IT support applied for job as
headmaster and managers apparently decided to appoint him but later they
appointed another one. Here, since one of managers confirmed Powell of
recruiting him without authority the Element ”consent” in not here. So according
to law Powell can’t sue against managers.
Legality: it means the contract must be
between legal parties for legal goods o services. In the scenario of Essential IT support authorized
managers didn’t give conformity to Powell. But another manager confirmed him
without authorized notice so there legality is absent so no contract occurred
here (Atiyah, 2000).
According
to Hugh (2013) the contract are
normally governed and enforced by different laws of contract such as Sales of
Goods Act 1979, Supply of goods and Services Act 1982. The applications of laws
on terms of contract are likely below:
On a condition: in the scenario of Essential IT support, singer worker
were failed to appear on time for why the defendant refused to continue the
contract. In this scenario a breach of condition will entitle defendant to
repudiate the contract and claim the damages. Obligation to perform from the
first night was a condition.
On warranty: in scenario of Essential IT support worker were failed
to come in due time on the purpose of rehearsals for his illness as a result
Gye the defendant refused to accept his services. In this situation defendant
cannot repudiate the contract as warranty is a less important term.
Intermediate terms: in this terms it is impossible
to classify neatly either it is warranty or condition. An intermediate position
can be addressed only in light of consequences of breach. In this if the damage
is severe the injured party can repudiate the contract. On the other hand if it
not severe the injured parties’ remedies will be restricted to damages.
Clark (2003) refers that a contract has many
terms with different effects on a contract. A valid contact cannot be without
its terms and formalities. Evaluation of the effects on different terms of
contract is in below:
Condition: it is a vital term of making a
contract. A breach of condition makes the injured party able to repudiate the
contract. In the scenario of Paussard v Spies, singer Poussard were failed to
appear on time for why condition was breached so Spies can repudiate the
contract.
Warranty: the effect of breaking warranty
is less effective than condition breaking. The injured party has the right to
make up his loss but he hasn’t the right to repudiate the contract.
Intermediate terms: in this term it is difficult to
understand either is it warranty or condition. Here the breached effects will
be on the basis of mutual bargaining. In this if the damage is severe the
injured party can repudiate the contract. On the other hand if it not severe
the injured parties’ remedies will be restricted to damages.
Exclusion clauses: in this term the wrong doer is
excluded from the responsibility of punishment or sometime not for the excluded
condition breaching. In the scenario of Essential
IT supports, the car will be suitable for touring was a condition. As the clause
did not exclude liability for breach of a condition the plaintiff was not bound
by it.
Expressed term: this contract is lawful but not
preferable. In applied terms there can be a condition, a warranty and in
nominate terms. If a condition is breached the suffered party has the right to
sue the wrongdoer for the damage.
Implied terms: in most contracts the primary
obligation of the parties are not expressed terms. In this time according to
various circumstances imputes the condition what to do with the breach of
contract. In this time by custom or statute condition would be applied (Hugh, 2013).
According
to Marsh (2011) the term tort refers
to the damage, harm or injury to the other counterpart or company with which he
wears engaged in a contract. And tortuous liability arises from the breach of a
duty fixed by laws. In tort liability the breached are responsible to compensate
the damage of injured party. On the other hand contract is an agreement between
two or more persons, parties or clients outlining their duties to one another.
In contractual liability the compensation terms are quoted or narrated hare.
Sometimes
the contract liability law and tort law are categorizes into the law of
obligation. There are some similarities between tort and contract. Such as
contract and tort create civil law obligation and breach of both provide the
opportunity to an action for damages. On the other side there are some
differences too such as contractual obligations are voluntarily undertaken but
in regard of law of tort there is no free choice law imposes the obligation. In
tort liability the tort is obliged to compensate the damage as it were before
but in contractual liability damages are counted as the agreement shows (Brazier, 1993).
Clarendon, (2010) refers that liability means the
obligation and responsibility to make up the damages or compensation for damages
or violation of contract law. In business more or two parties involve in a
contract to do something, if any of two or them breach the pint of contract he
will be obliged to compensate the damage for his negligence. The liability in
negligence refers that what will be the liability and how to fill the damage if
one damages another’s things for negligence.
Duty of care: the duty of care responsibility
held’s by company to provide protection for the employees. It makes a relation
between two parties involved in contract. Duty of care is a condition in
contract and its breach makes the tort responsible to compensate the damages.
Breach of duty: it is the second element in
negligence. A breach of duty of care refers to the falling below the standard
of behavior that was expected. In the breach of duty of care the defendant’s
activities are tested against the standard of care expected of responsible
person.
Damages for negligence: it is the third stage of
negligence. It is counted how much lost causes to the plaintiff for the negligence
of a defendant. If there is a quote in contract about the compensation
limitation or type that type will be liable for the defendant (Elliot, 2003).
In contract
system vicarious contract may occurred in different time or situation. In
vicarious liability another person become liable because of having relationship
with the person who did the act negligently. The name of this negligence is
imputed negligence. Vicarious liability occurred among the legal relationship
of Parent and child, husband and wife, owner of a vehicle and driver and
employee and employer. In a vicarious contract there are various things such as
bartered exchange, subscription fee or advertizing revenue of copyright. One
person may be reliable if he is not aware enough of the knowledge of inferring
acts occurring in the business. The employer will be charged with legal
responsibility for the negligence for employee as he is the agent of the employer.
As for example, in a business restaurant if the worker causes damage
negligently to the customer in his duty time the employee of the worker will be
responsible for the damage because of agency (Elliot, 2003).
At the
very end we can say that there are many contract system some have great
importance than the others. The factors of different terms of contract and
their effect according to law is necessary to know for the businessmen and
company. In business the company or proprietors have to conduct many contracts
with customers and clients with some condition. So what will be the effect if a
condition or warrant is breach by the company are necessary to know. The
context will help them all providing a clear concept and regulation of law in
business industries.
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