Aspects of Contract and Negligence - Assignment Example

?Aspects of Contract and Negligence Table of Contents Task 3 Task 2 5 Task 3 7 Task 4 9 References 12 Task In general, the terms ‘offer’, ‘acceptance’ and ‘consideration’ are regarded as the major constituents of contract law. In this regard, a contract is usually formed at the time when a specific offer is made and accepted by the involved parties in the contract. An offer is fundamentally described as an appearance of willingness to a specific contract based on certain significant terms. It is worth mentioning that an individual might withdraw an offer, which has been proposed by the offeror, prior to the receipt of the offer. On the other hand, acceptance generally takes place at the time when a party agrees to the offer made by a party in the form of an Act or a statement. The other element of a legal contract, i.e. consideration, denotes the promise made by the offeror to pay a price in compensation to the promises made by the other party (i.e. the offeree) to supplying products or services or any other benefit to the offeror (Macmillan & Stone, 2012; Jenkins, 2011). In this particular scenario, it can be apparently observed that “Techno Products”, which act as the specialist in selling computers, especially at discount prices, conducted advertising campaign in a newspaper advertisement, which stated that “The first ten customers to enter our shop on the 12 September 2013 will be eligible to purchase one of our highest specification computers, which normally retail at ?3000.00, for ?1.00”. In response, Peter reads the advertisement and visited “Techno Products” to avail the aforesaid offer. However, when Peter told the sales assistant of “Techno Products” that he desires to purchase it’s one of the highest specification computers for ?1.00, the sales assistant replied that the advertisement was not meant for seriously arguing that nobody of “sound mind” would imagine that they could buy a computer for ?1.00. Moreover, he was informed that if he wishes to buy the computer, he had to pay the market price i.e. ?3000.00. Based on the above situation, it can be advised to Peter that he cannot force “Techno Products” to sell him the computer for ?1.00. This can be justified with reference to the fact that there exists no lawfully binding contract between “Techno Products” and Peter and no essential bargaining terms have been decided amid them. In this context, the contract law linked with “invitation to treat” can be taken into concern as the strong basis to disregard any right to Peter, which can force “Techno Products” to sell him the computer at the discounted price. Conceptually, the contract law associated with “invitation to treat” is simply regarded as an invitation for the customers to accept an offer. The notion of “invitation to treat” can also be called in various forms that include a request made towards bidding or proposals and an invitation made towards tender. It can be viewed that advertisements generally appear under the contract law of “invitation to treat”, which enables the sellers to reject selling products, especially at prices that have been mistakenly or not seriously meant for. Moreover, the denial of the sales assistant of “Techno Products” in marketing the computer at ?1.00, affirming that the advertisement was not seriously meant, complies with the contract law of “invitation to treat”. Apart from this, there also pertains another reason, which might again advocate that Peter cannot force “Techno Products” to sell him the computer for ?1.00 on the grounds that the advertisement, made by “Techno Products” can be usually termed as “invitation to bid’ and does not qualify as an offer owing to the reason that “Techno Products” does not desire to enter into a binding contract without having any further negotiation (The Student Room, 2013). Thus, based on the above discussion, it can be affirmed that Peter cannot force “Techno Products” to sell him the computer for ?1.00. Task 2 Consumer law is primarily aimed at safeguarding the customers from certain deceptive along with unfair practices often performed by businesses or employers to suffice their unethical objectives (HCS, n.d.). At various situations, it can be apparently observed that businesses often guarantee that their respective products are of acceptable quality, whereby the company also delivers with free repair or spare parts facilities accessible for a stipulated time period to its customers. Notably, if these assurances, which can also be termed as promises made under contractual agreements are not duly met, the consumers are entitled with several remedies such as repairing, refunding or replacing the faulty products and compensating for any major loss, relying upon prevailing conditions (ACCC, n.d.). In relation to the case provided, the notion of exclusionary clause can be duly taken into concern. In this regard, exclusionary clause denotes the attempts make by the companies towards limiting the liability of a particular party or restricting the rights of the parties involved with them (Stevens & Bolton LLP, 2012). With this concern, it can be affirmed that Jack could not force “Telephones Are US” to replace/repair the telephone as it has been mentioned in the contract that he is liable to play repairing costs and the company is not liable for replacing or repairing the faulty products. This eventually demonstrates the application of exclusionary clause in relation to this particular case. In relation to the scenario provided, Jack decided to purchase a telephone from “Telephones Are US” based upon a 12 months contract. In order to undergo with this particular procedure, the sales assistant of the shop informed Jack that he should sign a standard contract form. Accordingly, Jack signed the contract, but without reading it. The contract clearly mentioned that “Telephones Are Us” does not accept the liability for product replacement or repairment based on the claim of the customers on the grounds of any fault in their functioning. Therefore, in all circumstances the customer was made liable for the cost of either replacing or repairing the faulty products after the full duration of the contract, i.e. after 12 months. After his purchase, Jack observed that the phone was not working. Thus, he took the telephone back to the shop and asked for replacement. Subsequently, he was informed that he would be liable to pay the repairing costs, as he is totally bound for 12 month agreement that he has signed. With regard to determine whether Jack can force “Telephones Are Us” to replace or repair his purchased telephone, it can be affirmed that a contract is already made between Jack and “Telephones Are Us”, which binds Jack’s rights as a consumer within a period of 12 months. This determination can be based upon two significant factors. One of the factors is that if the telephone does not work while being used after 12 months of the contract formed, he cannot force “Telephones Are Us” to replace or repair the purchased telephone. The other factor postulates that if the telephone does not work being used within 12 months of the contract formed, he can force “Telephones Are Us” to replace or repair the telephone. Therefore, in order to provide an advice to Jack, it can be affirmed from a broader understanding that he cannot force “Telephones Are Us” to replace or repair the telephone, as he already signed a contract without reading it. The contract clearly demonstrated that “Telephones Are Us” not be liable to accept any liability for the replacement claim or repairment of the faulty products after 12 months of purchase. Under these circumstances, the customers were deemed liable to bear the cost of their claimed replacement or repairment of any faulty product. After the mentioned tenure, they were also bound by the terms of this contract for its full duration. By taking into concern the relevant statutory provisions, safeguarding customers purchasing goods from businesses, it can be apparently observed that the consumers bear full right of acquiring the benefits of repairing or replacing products while not working within the warranty period. In relation to the case of Jack, he cannot force “Telephones Are Us” to avail this benefit due to the aforesaid agreement that he signed without reading. Similarly, it can also be stated that Jack is bound by the 12 months contract as the agreement, which he signed clearly depicts that he is bound by the terms of this contract for its full duration. It can be thus recommended that Jack should have read the contract while signing, for the purpose of mitigating this sort of uncertainties in relation to the purchase of the telephone. In this context, no liability can be bestowed on the seller, apart from that the marketers should have communicated the terms verbally to Jack, considering their ethical duties when involving a party into contractual terms. Thus, from the above discussion, it is quite clear that Jack cannot force “Telephones Are Us” to replace/repair the telephone and is bound by the 12 month agreement, despite relevant statutory provisions protecting consumers who purchase goods from businesses are provided. Task 3 The notion concerning ‘liability for negligence’ is often regarded as a civil matter rather than a criminal concern (Royal Society of Chemistry, n.d.). With regard to the case provided, Patricia was a passenger on “Safe and Steady Trains”, which witnessed a collision with another train. The crash eventually made Patricia suffer a broken leg. According to the case provided, the crash was mainly caused due to the lack of adequate duty of care performed by the train driver, who fell asleep on his duty hours, causing the collision. In this similar concern, Patricia desires to bring a claim of negligence in opposition to the train driver. In order to bring such a claim, Patricia must establish certain significant lawful aspects in relation to the ‘liability for negligence’ regime. This particular aspect is fundamentally associated with the regime proving that there has been negligence in the “duty of care” or that duty has been breached by a party, generating financial loss or foreseeable harm to the victim, due to the result of the negligence as alleged (Royal Society of Chemistry, n.d.). In relation to the provided case, the victim was Patricia, who had been harmed in the form of breaking her leg due to the crash caused in consequence of the negligence performed by the train driver. It is worth mentioning that in order to establish a claim of negligence against the train driver, she must prove that there has been carelessness in the “duty of care” or that duty has been breached by the accused. This can be proven as the crash was mainly caused due to the inattention of Patricia’s train driver, as he felt asleep while driving. Apart from taking into concern the aspect of ‘liability for negligence’, Patricia can also establish the notion of ‘liability in tort’ for bringing a claim against the train driver. In this regard, the perception of ‘liability in tort’ represents the conduct of wrongful activities that tend to cause damage, loss or harm to body, legal rights along with property of others (Slideshare Inc., 2013). In accordance with the lawful standards of ‘liability in tort’, the offender who performs wrongful activities is entitled to sue the offender in civil court for an injunction or compensation made against repetition. This particular idea must be established Patricia in order to bring a negligence claim against the train driver. Though the train driver does not conduct any wrongful deed, the driver showed an activity of negligence by falling asleep and causing a train cash. Based upon this idea, Patricia can bring a legitimate claim in negligence against the train driver. Accordingly, it can be affirmed that the chances of getting success to fulfil this objective is quite high for Patricia. This can be justified with reference to the fact that the crash was mainly caused due to the train driver’s carelessness act by falling asleep while driving. This ultimately made Patricia suffer a broken leg. From this aspect, it can be ascertained that the train driver caused bodily harm, if not any financial loss to Patricia, laying the foundation for bringing a negligence claim in opposition to the train driver. It is noteworthy in this context that as the train driver breached “duty of care” in the form of having carelessness in driving and causing bodily harm to Patricia, her chances of getting success in bringing negligence claim against the train driver would extensively become much higher. Thus, it can be concluded that the facets of ‘liability in tort’ along with ‘liability for negligence’ would support Patricia towards establishing such claim against the train driver and most vitally, in determining her chances for success. Task 4 According to the case provided, it can be apparently observed that the possibility of bringing a claim against “Pushing and Pulling Ltd”, under occupiers’ liability legislation by Paula, is higher. This can be explained with relevance to the case scenario that Paula, who was invited to a job interview with “Pushing and Pulling Ltd”, tripped over a cable that was running across its reception area at the floor level. It was identified in the case that the building of “Pushing and Pulling Ltd” was solely occupied rather than owned by the company. In this similar context, the possibility of bringing a claim against the company under occupier’s liability legislation can be determined based upon the notion of ‘tort of negligence’ along with defences in diverse operational situations. The idea of ‘tort of negligence’ may be described as the failure to perform any activity reasonably. This particular aspect i.e. ‘tort of negligence’ generally tends to recognise the interrelation prevailing between imagined conjectures and direct facts without injuring others (Griffith College, 2010). After acquiring a brief idea about the facet of ‘tort of negligence’, it can be affirmed that there lays a little probability of bringing a claim against “Pushing and Pulling Ltd.” under occupier’s liability legislation by Paula. This can be justified with reference to the fact that though Paula tripped over a cable that was running across the reception area at floor level, she did not suffer from any bodily harm or financial loss. Negligence, on the other hand, is often regarded as the deficiency in care or care for accountability. Everyone, whether an organisation or an individual possesses ‘duty of care’ for others, to protect them from any sort of damages (Griffith College, 2010). By taking into concern this particular factor of negligence i.e. its shortage of care or care for liability, it can be affirmed that there exists greater possibility of bringing a claim against “Pushing and Pulling Ltd.” under occupier’s liability legislation. This is owing to the reason of the company’s lack of concern in providing utmost care to Paula and other visitors to the building. In order to advise Paula regarding any action that can be brought under legislation associated with occupiers’ liability and whether damages award might be reduced because of any possible contributory negligence on her part, the notion of vicarious liability can be taken into concern. In this similar concern, the aspect of vicarious liability denotes the law principle that makes one party accountable for the activities or the inactions of another (Beyer, 2006). In other words, the idea of vicarious liability often refers to a particular situation wherein, one party is held responsible for the omissions or actions of another party. Moreover, it also denotes the imposition of liability of one particular person for a tortuous activity committed by other person (ACAS, n.d.). In relation to the case of Paula, this particular facet can be applied owing to the reason that “Pushing and Pulling Ltd.” can be held liable for not taking care of Paula, as she tripped over a cable that was running across the reception area at floor level. According to the case provided, it can be apparently observed that negligence from her part might have contributed to her falling over the cable. This is because Paula is taking medication for a virus that should only be taken with food or else can cause substantial damage to her health. However, she took the medicine on the interview day without food and thus, this can be duly considered as the factor contributing to her falling over the cable. In this situation, the damages to be compensated might be reduced because of the aforesaid possible contributory negligence relating to medication on her part. It is worth mentioning that contributory negligence made by an individual himself/herself without the involvement of others might make compensations against damages to be reduced by a certain degree. Thus, from the above discussion, it can be affirmed from that the possibility of bringing a claim against “Pushing and Pulling Ltd.” under occupier’s liability legislation can be legitimately made through considering the aspects of ‘tort of negligence’ and ‘vicarious liability’. Besides, it can also be affirmed that the damages to be compensated can be reduced relating to the case of Paula because of her contributory negligence relating to medication. This might support “Pushing and Pulling Ltd.” towards depicting lesser ‘duty of care’ to Paula. References ACCC, No Date. Consumers' Rights & Obligations. Business. [Online] Available at: http://www.accc.gov.au/business/treating-customers-fairly/consumers-rights-obligations [Accessed December 07, 2013]. ACAS, No Date. Understanding What Vicarious Liability Means For Employers. Training and Business Solutions. [Online] Available at: http://www.acas.org.uk/index.aspx?articleid=3715 [Accessed December 07, 2013]. Beyer, D. A., 2006. Introduction. Vicarious Liability. [Online] Available at: http://www.franchise.org/uploadedfiles/prospective_franchisee/franchising_basics/vicarious%20liability%20_david%20beyer_.pdf [Accessed December 07, 2013]. Griffith College, 2010. Introduction. Negligence – General Principles. [Online] Available at: http://www.gcd.ie/assets/Uploads/images/Law/fe1manuals/20090519051807Chapter02Tort.pdf [Accessed December 07, 2013]. HCS, No Date. Consumer Law and Shopping Rights. Types of Law. [Online] Available at: http://www.hcs.harvard.edu/~scas/wp/wordpress/?page_id=24 [Accessed December 07, 2013]. Jenkins, J., 2011. The American Courts: A Procedural Approach. Jones & Bartlett Learning. Macmillan, C. & Stone, R., 2012. Requirements for the Making of a Contract. Elements of the Law of Contract. [Online] Available at: http://www.londoninternational.ac.uk/sites/default/files/programme_resources/laws/ug_subject_guides/elements_law_contract-subjectguide4chapters.pdf [Accessed December 07, 2013]. Royal Society of Chemistry, No Date. Negligence. What Can You Be Liable For And Why? [Online] Available at: http://www.rsc.org/images/4_liable_tcm18-17646.pdf [Accessed December 07, 2013]. Slideshare Inc., 2013. Contrast Tort and Contract. Law of Tort. [Online] Available at: http://www.slideshare.net/btecexpert/0201compare-contrast-tort-and-contract-1999799 [Accessed December 07, 2013]. Stevens & Bolton LLP, 2012. What Is An Exclusion Or Exemption Clause? Effective Exclusion Clauses. [Online] Available at: http://www.stevens-bolton.com/uploads/effective-exclusion-clauses.pdf [Accessed December 07, 2013]. The Student Room, 2013. Distinguish Between An Offer And An Invitation To Treat. Forums. [Online] Available at: http://www.thestudentroom.co.uk/showthread.php?t=540006 [Accessed December 07, 2013]. Read More