Foundations of Business Law - Contract and Negligence Tort - Assignment Example

Foundations of Business Law: Contract and Negligence Tort Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Name Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Course Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Lecturer Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 18th April, 2012. Contract Law A contract is an agreement between two or more people with the intention to make it legally binding. However, the agreement must have a consideration to be complete (Davenport & Parker, 2011). There are three forms of contracts in reference to their validity; valid contract, voidable contract and a void contract. A legally binding valid contract must exhibit certain criterions. Offer plus acceptance can be said to be the framework of a valid contract but it must have some consideration regardless of whether it is sufficient or not. Therefore a valid offer is the first essential element to a valid offer and consequently a legal acceptance follows. A lawful consideration is the next element followed by the capacity to contract of the parties involved, a possibility of performance and intention to create a legal relationship (Gibson & Fraser, 2011). For a declaration to be made whether a legally binding contract existed between Sportswear World Ltd and Hi Q Manufacturer Ltd, the above essentials of a valid contract must be determined. However, the essential elements of a contract may differ from one contract to another in reference to where the contract may be classified. Apart from valid, voidable and void contracts, there are implied and express contracts, contracts under seal, contracts of utmost good faith simple contracts and formal contracts (Turner, 2010). Sportswear World Ltd and Hi Q relationship was under express terms due to the presence of a document. In addition, the relationship exhibits an element of a formal contract in reference to the document still. Although it is written and thus express, the relation exhibits some formal relationship which could lead to the consideration of a formal contract. A formal contract exists where there are writings in a special way and does not eventually to include a consideration on the same (Lambiris, 2011). Consequently, the contract’s formality is evident in its form. The first element of determination is the legality if the offer. An offer is anything that expresses the willingness of the offeror to enter into a legally binding contract with the offeree. Often, people mistake an offer with an invitation to treat. This is because of the essential elements of a valid offer which distinguishes an offer from an invitation to treat. On the other hand, an invitation to treat is anything that is subjected to instilling awareness that will lead to one making an offer (Turner, 2010). Therefore, an offer must be very clear and precise or else it will be assumed an invitation to treat. An invitation to treat does not lead to a contract not unless an offer is consequently made. It includes advertisements and displays and is characterized by declaration of intention or the supply of information which cannot be regarded as an offer but rather as an invitation to treat. In regard to the relationship between Sportswear World Ltd and Hi Q Manufacturers, the earlier is the offeror or intended offeror in reference of the facts of the case. The document prepared by Sportswear World Ltd amounts to an offer to buy 100 cartons of swimwear from Hi Q Manufacturer Ltd. However, then offer made by the Sportswear World Ltd defines a conditional offer. A conditional offer is one that gives some conditions that should be satisfied before making or after the acceptance (Lambiris M, 2011). In this case, the offer document made by the offeror (Sportswear World Ltd) to the offeree (Hi Q Manufacturer Ltd) outlines the conditions as per the offeror requirement. The provisions on the terms and condition were on the basis of a precedent situation before an acceptance is made. Consequently, the offeree was obliged to read the document before making the acceptance (Gibson & Fraser, 2011). On the other hand, Hi Q Manufacturer Ltd accepted agrees to sell the goods on the basis of the provision. It is therefore assumed that the offeree read the provisions prior to the acceptance of the offer (Davenport & Parker, 2011). The offer and the consequent acceptance form the framework or the basis of a contract presence. From the offeror side, the offer exhibited clear information with the assumption to being included in the provision on the terms and conditions. The offer was communicated and the offeree was aware and the offer was intentioned to create a legal relationship. The case’s facts exhibit a legal acceptance which consequently amounts to the presence of a contract relationship between Sportswear World Ltd and Hi Q Manufactures Ltd. It should therefore be held that there a contractual relationship between the two companies and consequently a breach of contract. It is however not clear who among the parties led to the transaction failing through. The Tort of Negligence Negligence is a tort that is discussed under the civil law of torts. Negligence refers to the breach of a legal duty of care and skill expected of a prudent man that consequently results to damage that is taken as a predicament by the plaintiff (Gibson & Fraser, 2011). In my case against Hi Q Manufacturer Ltd in regard to contracting of a skin infection as a result of chemical traces that were left in the swimwear during the manufacturing process, all the essential elements of negligence have to be approved first. On the other side, elements of negligence must be ascertained to determine whether there was negligence from my side when I wore the swimwear without first washing it consequently contracting the infection. The key element of the negligence is the duty of care (Lambiris, 2011). The duty of care falls on the defendant where the burden of proof is upon the plaintiff to proof that the defendant had a duty of care to the plaintiff. The second key element to negligence is the breach of the legal duty of care. After proving that there exists a legal duty of care, the plaintiff still retains the burden of proof that there was a breach of the legal duty of care. Consequently, the other element of negligence is reliant on the second one of the breach of the legal duty. Remarkably, the element carries a legal weight since it confers to the breach of the legal duty of care being the actual cause of a legal injury. In regard to the legal duty of care, every person is obliged to avoid anything that he can reasonably foresee to cause an injury to him or to another person. However, professionals have a higher legal duty of care in regard to their respective disciplines. On the other hand, it is of essence to note that for the defendant to be held liable, he ought to have reasonably foreseen that his or her negligent acts would lead to an injury. In the relation between me and the Hi Q Manufacturer Ltd, the facts should be weighed to resort on who among us carries the legal duty of care and consequently suffer liability over the injury caused. Therefore the principle theme and facts speaking for themselves should be considered (Gibson & Fraser, 2011). This would help determine my liability of the company over negligence. In addition, it would confer on who carries the burden of proof. For instance, the company would have the burden of proof if it claims it had done its part and that my negligence led to the injury sustained. The principle of facts speaking for themselves requires that the thing that caused the injury was under the control of the defendant who in this case must have been negligent. In addition, it states that there must be no other reason as to the cause of the injury other than that of the defendant’s negligence. According to the first important fact to the case, the company left some chemical traces on the swimwear which actually caused the injury I sustained. It is evident enough that the company was absolutely negligent to have left the chemical traces on the swimwear (Donaghue vs. Stevenson 1932, AC 562). The burden of proof falls on me to proof on the legal duty of care was present and consequently the company breached the legal duty. Finally, I am supposed to proof that the breach to the legal duty resulted to the contraction of a skin infection. Bearing on the facts of a legal duty, the company was more prudent enough to have noticed the chemical traces. In additions, it was in a better position to know of the adverse effects of the chemical traces and make sure they were not (Lambiris, 2011). In simple terms, Hi Q Manufacturer Ltd had a legal duty of care in regard to the chemical traces. By the fact there were chemical traces on the swimwear, it is evident that there was a breach of the legal duty of care to ensure no chemical traces. The other burden of proof that I bear is that the breach of the legal duty actually caused the injury in regards to the skin infection. According to the principle of facts speaking for themselves, it is evident that the breach of the legal duty caused the injury (Donaghue vs. Stevenson 1932, AC 562). With those facts, I can proof that I have an action in negligence against Hi Q Manufacturer limited. In addition, the tort committed can be linked with the unperformed contract between Hi Q and Sportswear World Ltd where the Sportswear World Ltd would have recognized the traces under their legal duty of care. However, a question arises about my contribution to the injury. Contributory negligence refers to the case where I wore the swimwear without washing first (Lambiris, 2011). This would lead to me being held liable to contribute to the injury cost of the skin infection. However, I have a defense that the company Hi Q Manufacturer Ltd was more prudent than I was in reference to the legal duty of care on the chemical traces not unless there was any disclaimer to the case of washing before wearing but otherwise, I have an action in negligence against the company (Donaghue vs. Stevenson 1932, AC 562). References Davenport S & Parker D, 2011, Business and Law in Australia, Pyrmont NSW: Thomson Reuters. Donaghue vs. Stevenson [1932] AC 562 Gibson A & Fraser D 2011, Business Law, Frenchs Forest: Pearson. Lambiris M, 2011, First Principles of Business Law, Victoria: The University of Melbourne. Turner C, 2010, Australian Commercial Law, Sydney: Law Book Co. Read More