Business Contract Agreement and Possible Negligence - Assignment Example

 Aspects of contract and negligence for business Case 1 A contract formalizes an agreement between two or more people or parties (Chen-Wishart, 2012). However, before any party can sue for enforcement of the contract, he or she has to show that there exist the six basic requisites present in a legally binding contract. Notably, an enforceable contract has to have an offer and acceptance, competent parties with a legal capacity to enter into a contract, a lawful subject, and consideration. An offer is defines offer as an “expression of willingness to contract on set terms, made with the intention that it shall become binding as soon as it is accepted by the person to whom it is addressed, the offered” (Young, 2010). An offer is a declaration of the expressions on which the offeror wishes to adhere to (Deakin et al, 2003). Expression of offers comes in distinct forms and can be in the form of an advertisement, email, conduct and a letter, only if it communicates the grounds on which the offeror intends to contract. However, an offer should be differentiated from an invitation to treat. Invitation to treat is an “expression of willingness to negotiate”. This is an invitation for customers to present their offer. However, an offeror making an invitation to treat is not obligated as soon as it is accepted by the offered individual. In this case, the advertisement by Techno products was an invitation to treat and not an offer. This implies that the company invited customers to contract. This implies that the company is not bound to sell the computers to anyone willing to pay for them. This is seen in Partridge v Crittenden (1968), where the court determined that the appellant only intended to offer to sell the birds and was not an offer (Young, 2010). However, an advertisement can be an offer in certain circumstances. In this case, the advertisement by Techno products to sell the computers at £1 to the first ten customers on 12th September 2013 was an offer. In this case, the actions of peter portrayed acceptance of the offer. This case is similar to Carlill v Carbolic Smoke Ball Company (1893). In this case, the company offered a reward to anyone who contracted influenza as a result of using the smoke ball for three times. The court determined that any individual who makes an offer for the sale of items through an advertisement impliedly brandishes notification of acceptance if the primary objective is to sell as many items as possible (Young, 2010). In this case, Techno products chief aim for carrying out the advertisement was to increase its sales after it had seen that its profits were on the decline. The court in Carlill v Carbolic Smoke Ball Company determined that an advertisement ceases to be an invitation to treat when the advert specifies the quantity of individuals qualified to agree to its terms (Young, 2010). In this case, the advertisement by Techno products stipulated the number of people who can accept the offer as the first ten customers to enter the shop on September 12th. The actions of Peter impliedly portrayed his acceptance of the offer. However, the court will have to determine whether the advert was a mere puffery or a promise (Beatty, 2008). In this case, the advert made by Techno products seem to be mere puffery and would be illogical for an individual to think that he or she can purchase a computer that retails for £3000 for £1.00. In effect, puffing is accepted since the legitimate rules for expressing the truth are distinct in commercial relations than in the commonsense implication of a declaration that is not defensible by the facts of circumstances. Therefore, puffery pulls its nourishment from conventions on what is fair to anticipate from distinctive consumers in the contemporary market exchange (Beatty, 2008). In this regard, Techno products may not be liable since the advertisement was a mere puffery and no reasonable customer would believe that the company would sell its computers at £1.00. Case 2 As a common decree, an individual is obligated to his or her signature to a document, regardless of having read or not read or understood the document (Beatty et al, 2013). This is a mistake that relates to documents. In a contract of sale of goods, a mistake is a mistake certainty, that particular facts are factual. In this case, a mistake may be imminent in a contract when an individual enters into a contract without full information of the terms of the contract. In some cases, a party to a contract may enter into the contract having mistaken the terms of the contract or the subject matter of the contract. In this case, only one party to the contract is mistaken while the other one has full knowledge of the terms or subject matter of the contract (Edwards et al, 2012). In this case, jack made a mistake by signing the document without reading it. Therefore, Jack is bound by the 12 month contract he signed and is supposed to repair the phone. However, he can escape performance of the contract if he can claim non est factum. Non est factum is a principle that allows a party to a contract to escape the performance of the contract on the grounds of mistake, without apprehension of the meaning, but not done negligently. A successful application can make the 12 month contract invalid ab initio. Subject to Foster v Mackinnon (1869), an individual can claim non est factum if he or she should satisfies the following requirements: the party’s mistake to the nature of the document should be essential and the party must not have carelessly signed the document. In Foster V Mackinnon (1869), the defendant, a partially blind man, was persuaded to sign a document, which he was informed was a guarantee, but was a bill of exchange, which the claimant became titled. The court determined that the defendant was not accountable to the bill and was not negligent and; therefore, non est factum prevailed (Turpin, 2000). Jack will have to prove that there was a significant distinction between the document he signed and what he believed it to be. Subject to Saunders v Anglia Building Society (1971), the application cannot prevail if the party was negligent. In the material facts of Saunders v Anglia Building Society, an old widow wanted to shift the ownership of her house to her nephew by way of gift. The nephew, together with Lee, prepared a document that transferred the asset to his name and asked her to sign (Lunney & Oliphant, 2008). The old lady did not have her spectacles with her when the document was brought to her, so she did not read the document and appended her signature, trusting that the nephew would not do anything wrong. However, the nephew mortgaged the house and took the proceeds from the house for his own use. In this case, the court held that the contract that the old lady had entered was not distinct from what she had purported at the time she got into the contract, and that she had been negligent signing the document. In the case at hand, Jack’s intention was to purchase a phone on a 12 month contract, which he stated at the time he got to the ‘Telephones Are Us’. However, the ‘helpful’ shop attendants failed to notify Jack about the terms of the contract that they handed him to sign. In this case, the document signed failed to portray a common intention between the parties. However, non est factum requires an individual to exercise a considerable degree of carefulness (Stone, 2013). In this case, Jack should have ensured that the document he was signing contained only the 12 month contract without any other terms or clauses. Case 3 Negligence arises when an individual or an organization fails to exercise reasonable care to people or to the society. In essence, when people are carrying out an activity, it is essential for them to consider the harm that their actions may have on other individuals (Owen, 2007). In this case, Patricia’s application against the Safe and Steady Train’s driver will prevail under negligence. For negligence to prevail, a party should indicate the breach of a duty of care, causation and damages. Subject to Donoghue v. Stevenson (1932), the acts of an individual or a company should be exercised in a manner that portrays a considerable degree of duty of care (Edwards et al, 2012). In the material facts of Donoghue v. Stevenson (1932), Donoghue, the plaintiff had taken a beer manufactured by Stevenson, which had remains of a slug at the bottom of the bottle. The court determined that there existed an implied contract between the company and the plaintiff and that the company ought to have the people affected by their actions in contemplation (Lunney & Oliphant, 2008). Caparo Industries plc v Dickaman (1990) set the precedence on assessment of duty of care. Subject to this case, a duty of care arises in negligence when harm is rationally predictable; the party has an association of contiguity to the other party and is fair to exercise an action for liability (Owen, 2007). In the case at hand, Patricia will have to show that harm to the passengers in the train was predictable. This is because sleeping while driving results to an accident. Additionally, Patricia will have to show that the passengers and the driver had a relationship, where the driver was expected to get them to their destination. Therefore, it will be fair and just for Patricia to exercise action for damages in a court of law. For a negligent case to prevail, it is imperative for the party to show that the acts or blunders were the cause of damage or harm suffered (Beatty et al, 2013). In this case, Patricia will have to show that the act of falling asleep by the driver caused the train accident, which caused harm on her leg. It is essential for any case on negligence to show that the actions of one party caused harm to them. Failure to show the harm caused may make the case not actionable. For a case against negligence to prevail, there has to be a direct cause or factual causation. In this case, the court will have to determine what caused Patricia’s leg to break. According to the material facts presented, the en the trains occurred after the driver to Patricia’s train fell asleep. If the driver had not fallen asleep then the accident would not have occurred, and Patricia would not have broken her leg (Lunney & Oliphant 2008). Additionally, Patricia can exercise a legal application against ‘Safe and Steady Train’ company. This is because the driver acted as an agent to the company. The company is vicariously liable for the actions of the driver and should be liable for any harm caused by the actions (Munday, 2010). In this regard, Patricia’s claim will prevail against both the driver and the company. Under vicarious liability, a company is responsible for any negligent actions of its workers in the line of duty. An automobile owner is vicariously responsible for negligent acts committed by the driver, who is the owner’s agent (Young, 2010). In this case, the drive of the train used the train with the aim of carrying out tasks of ‘Safe and Steady Train’ Company. Case 4 A property owner owes an individual who enters his property or land a duty of care with regard to his or her status. A property owner should ensure that his or her property is safe for invitees. In this case, the property owner should inspect the premises to identify any concealed risks. Additionally, the property owner has the responsibility of informing or notifying the invitee of risky and dangerous conditions of the property. As a result, the property has to bear liability for any injuries that may befoul the invitee (James, 1999). Invitees are the people invited to premises by the owner of the property. In most cases, an invite may be invited to a property for the purpose linked to business dealings with the owner of the property (Beatty, 2008). In most cases, the owner of the property can be any person who rightfully uses the property over a period of time. In the case at hand, Paula is the invitee and Pushing and Pulling Ltd is the owner of the property. Paula had been invited for a job interview thus making her an invitee. On the other hand, since Pushing and Pulling Ltd were the sole tenants of the building, then they ought to act as the owners of the premises. A tenant is expected to exercise reasonable care to an invitee and is responsible for any injuries that the invitee may suffer. Notably, before a store owner or a tenant is held liable, it is essential for the invitee to prove that that the owner or tenant caused the condition or knew about the existence of the condition and failed to take adequate reasonable action to remove the hazard or enlighten the invitee (Lunney & Oliphant, 2008). In this case, Pushing and Pulling Ltd had an obligation towards Paula. The company was supposed to ensure that the condition of the premise was secure and would not cause any harm to the people invited to the building. Paula tripped over a cable that was running across the reception area at ground level. The presence of the cable in the reception shows that the company was aware of the cable. However, the company failed to remove the cable at ground level and t place a notice near the cable to avert any harm to invitees. Additionally, being the reception area, the company should have anticipated a considerable number of people to use that path and should have taken reasonable steps to reduce or avert danger. Therefore, since the reception would be used frequently by invitees, the company is anticipated to exercise more diligence and responsibility than on other areas of the building. As Paula walked into the building, there was no notice of the presence of the cable lying on the floor and, therefore, nothing was brought to her attention. However, the fact that Paula took her medicine without food on that morning before going for the interview may amount to contributory negligence. The virus medication required the medicine only to be taken with food. The fact that she overlooked this requirement may have contributed to tripping over the cable. In this case, ‘Pushing and Pulling’ ltd can use Paula’s contributory negligence as a defense against their liability towards the injury that occurred to her while in the business premises. In this case, ‘Pushing and Pulling’ ltd can rely on this fact and assert that the effects of taking the medicine without food should have affected Paula’s sight and thus making Paula not see the cable on the floor. Consequently, in some cases the court denies victims compensation for damages for establishing that the victim contributed to the injury. On other cases, the court permits the decrease of recoverable damages to the level that the court deems fit (Stone, 2013). Therefore, the damages that Paula can recover will be grounded on the extent to which her negligence attributed to the injury. References Beatty, J. F., Samuelson, S. S., & Bredeson, D. 2013. Introduction to business law. Mason, OH: South-Western Cengage Learning. Beatty, J. F. 2008. Essentials of business law. Mason, OH: Thomson/West. Chen-Wishart, M. 2012. Contract law. Oxford: Oxford University Press. Deakin, S. Angus J. and Basil, M. 2003. Markesinis and Deakin's Tort Law. Oxford University Press Edwards, L. L., Edwards, J. S., Wells, P. K., & Edwards, L. L. 2012. Tort law. Clifton Park, NY: Delmar Cengage Learning. James, F. 1999. Tort Liability of Occupiers of Land: Duties Owed to Licensees and Invitees. Yale Law Journal, 63(5), 605-638. Lunney, M, Oliphant. K. 2008. Tort Law - Texts, Cases. 2nd ed. Oxford University Press. Munday, R. J. 2010. Agency: Law and principles. Oxford [England: New York. Owen, D. G. 2007. The Five elements of Negligence. Hofstra Law Review, 35(4), 1671-1687. Stone, R. 2013. The modern law of contract. Milton Park, Abingdon: Routledge. Turpin, C. C. 2000. Non est factum: Mistake of Identity and Negligence. The Cambridge Law Journal, 36(3), 187-190. Young, M. 2010. Understanding contract law. Abingdon, Oxon: Routledge-Cavendish. Read More