The Host of Negligence Case - Essay Example

Name Institution Course Lecturer Date Business cannot afford to work without contracts and agreements, in most case, the relationships between parties and particularly where there is something of value to consider is maintained by legal obligations. The process of reaching to these legal obligations is determined by how each party articulates its terms and expectations. In some cases, agreements are set orally or by written model into what is referred to as a contract. A contract has three important things that make it legally abiding; the offer, acceptance and consideration. However, not all contracts are successfully delivered and the failure by one party may be interpreted as a breach by the other which may lead to a claim for damages. In the process, the judge will always look at the intention of the parties and foresee ability of breach by both parties. If it is established that both parties had foreseen the breach and the intention of the party considered to have breached were right, it is hard to enforce the terms or damages (Bepko 134). Negligence is another area that has increased due to the way companies delivers to the consumers and transactions between them. In most cases, negligence involves a failure to respond to the requirements like the duty of care, selling defective products and fraud. The host of negligence cases involving companies can be grouped under civil and criminal cases (Mosher, Cohen and Jernigan 348). Of these, the tort laws covers some example of cases that involves civil wrongs that fall outside the breach of contract but have a level of injury to the parties, property or economic interest that in turn destroy business relationships. In addition, acts of omissions or inaction by one party to minimize potential risks to the other business can be termed as negligence. A business is taken as a legal entity and must have the basic understanding of tort principles. The understanding helps it to identify as well as minimize potential risks and select the best course of action to ensure its compliance (Waite 13). Negligence is taken as a failure to exercise an ordinary care that would in turn contributed to avoiding injury to other persons or their property. It is resumed that, a person or a party that enters into an agreement with the other has to weigh its potential and capacity to deliver as per the requirements and must ensure that all efforts are reasonably applied. Negligence case arises when it is revealed that, the person would have taken an action to mitigate the injury. The doctrine of reasonableness is applied in most cases where the judge look at what a careful person would have done under similar circumstances (Esper and Keating 34). However, to establish a negligence claim, a party has to establish four elements. First, duty of care is derived from the relationship that existed and was established between parties. When an agreement is made, each party raises the expectations of the other meaning that, the other party ultimately trust that it will be safe under the existing conditions for the other party to deliver and avoid any act that can lead to injury (Waite 28). Secondly, it must prove that the other party breached the duty where through inaction or action that leads to the injury. For instance, where a company expects that the contractor would compile the software and take absolute care for its databases, if an action or inaction causes the data base to collapse, the company can raise a claim that the party breached the duty. Actually, the party is weighed by its possessed skills and the degree with which it would have exercises its skills, diligence, care and knowledge. If it falls short, it is for the judge to determine what the party would or would have not or would have done to ensure the right standard of care measured according to reasonable standards (Esper and Keating 37). Thirdly, causal connection establishes the link between inaction or action and the injury. It must be established that, the injury experienced was caused by the other party’s failures and would not have happened or necessitate by any other probable circumstance. This has to be explicit by considering all the factors that would have led to such an outcome. If the injured party had exercised all diligence to avoid injury on its side, then the blame is well established to have been caused by the other party. Fourthly, an actual harm or loss must be revealed where, something of value was lost due to the failure of one party (Waite 23). Loss might be established in monetary terms like loss of revenue due to stopped operations following a system breakdown when it was being maintained or repaired by another party that was aware of the their client’s needs. In other cases, actual harm can be established like in the case where a party that is involved in repair activities lead to break down of a software or a facility. The defendant can in turn raise defenses to negligence claim by raising attack on all or one of the four negligence elements. Some of the possible defenses can include a challenge to the status of a plaintiff such as licensee v. invitee and a corresponding duty of care that would have been accorded. The defendant can also assert that they acted in accordance to the requirements of standard of care, attract that causal connection between act, omission and injury or question whether a plaintiff suffered actual losses as claimed. A negligent party can escape all or some of its liability if at all it proves that the injured party was also negligent. The response in a case may adjust damages or award them accordingly (Eisenberg 1422). The plaintiff cannot recover from contributory negligence where its own negligence contributed to a loss. Ultimately, contract law and law of tort are meant to determine relationships between parties and particularly those with commercial relations. It offers the course of action to be adopted and regulation to be followed to ensure that each party abides to its commercial obligations. Works Cited Bepko, Gerald L. "Contracts and Commercial Law." Indiana Law Review Archive9.1 (2012): 132-160. Eisenberg, Melvin Aron. "The Role of Fault in Contract Law: Unconscionability, Unexpected Circumstances, Interpretation, Mistake, and Nonperformance."Michigan Law Review (2009): 1413-1430. Esper, Dilan, and Gregory C. Keating. "Putting" Duty" in Its Place: A Reply to Professors Goldberg and Zipursky." (2010). Mosher, James F., Elena N. Cohen, and David H. Jernigan. "Commercial host (dram shop) liability: current status and trends." American Journal of Preventive Medicine 45.3 (2013): 347-353. Waite, Melissa. "Check fraud and the common law: at the intersection of negligence and the uniform commercial code." Boston College Law Review 54.5 (2013). Read More