Scot's Law of Contracts - Essay Example

? Scot’s Law of Contracts Introduction Contracts are bilateral agreements where two or more parties come to a consensus. The parties involved must additionally have the mental capacity to perform what is laid out in the contract and such a contract is enforceable under the law as long as the terms are not illegal, indeterminate, trifling or impossible to perform1. A court of law can confer an enforceable obligation on a single party making it a unilateral contract or on a multitude of parties where it becomes a bilateral or a mutual contract2. Contracts are formed where all the concerned parties have arrived at an agreement. This is in terms of the stipulations of the contract and in willingness to see the contract out without duress. In legal terms, consensus in idem must be achieved for a contract to be deemed as binding. Not all terms in the contract must be agreed upon. However, the most essential ones must be agreed when the parties meet. Another tenet of the Scottish Law of Contracts is that it must not always be in writing3. The Requirements of Writing Act 1995 clearly states that a contract must not always be written contrary to belief by people who are not essentially lawyers. The conduct of the parties, the spoken word or a combination of these may be used in the formation of a contract as much as the written word. Case A1 Arju is shopping for a power washer when a customer who has heard what she is looking for strikes a conversation and recommends an AK47 Watersquirt which she buys. On realizing that the power washer does not do the job she intended, her options become limited. Under the Scottish Law of Contracts, there must be an agreement between the parties at least on the essential terms. The other customer gave his unsolicited advice to Arju on the power washer that he thought was best. Arju was under no obligation4 to buy what the customer recommended as he was not in a position to make a binding contract with her. This is because the law stipulates that the parties in a contract must be willing to see the contract out. The other customer, who gave his advice to Arju was not willing to see his part of the contract out since he was under no obligation to do so. Therefore, it is not possible to prove that a contract existed between Arju and that customer. Additionally, she cannot claim that in court of law as ultimately, she would have to prove that a legally binding contract did indeed exist between her and the customer. The Scottish Law of Contracts requires that consensus in idem be reached. This means that regardless of the means that the contract was formed, there must be a consensus that was reached by the parties. It is possible for the parties in a contract to think that they have come to a consensus only for the court to overturn that belief. This is so especially when the parties think that they have reached an agreement only for the court to ask whether a reasonable person, given all the facts in the case would have acted in the same way. In this case, Arju was not under any obligation to heed the recommendations of the other customer as ultimately, she had not approached him but he had approached her. Therefore, a reasonable person would have pointed out that she was not under any obligation to buy the AK47 Watersquirt and hence no contract could have been made. As Arju’s lawyer, I would not advice her to sue the customer as there was no contract between him and her. Case A2 In this scenario, Arju comes across a sales assistant who is wearing the stores uniform and having a label “home decoration expert”. The assistant concedes that he does not have enough knowledge on power washers but states that the store only stocks the best appliances meaning that whichever she chose would do the job just right. Here, the assistant is in a legal capacity to enter into a contract with the customers on behalf of the store. Therefore, Arju had the guarantee that whichever power washer she chose would do the job that she required it to. As seen earlier, a contract is formed once there is an agreement between two or more parties. In this case, the assistant conceded that he was not an expert in the area of power washers but still went ahead to recommend any of the power washers stating that the store only stocked the best. The Law of Contracts states that parties may come to an agreement but a court may determine otherwise if the goods that the parties were referring to were different. It is clear that the sales assistant entered into a contract with Arju in regards to any of the power washers in the store. Furthermore, the sales assistant had dealt with 200 claims in 4 hours of faulty appliances being returned by customers. The assistant can be seen as being insincere5 in his recommendation to Arju as such a high rate of returns meant that there was something fundamentally wrong with the appliances that were being stocked in the store6. The basic component here is that the parties reached a consensus in idem where the assistant in his legal capacity recommended any power washer to Arju his client. In this case, the store has a case to answer as ultimately, its employee entered into a contract with a client and recommended an appliance that did not perform the task for which it was intended. Arju can sue for breach of contract7 and the store is expected to see out its side of the contract by giving her an appliance that works or other action that the court may deem fit. Case A3 Arju meets up with a sales assistant whose name tag and uniform imply that he works for the store and that he is a power washer expert. He recommends that she buys an M16 Aquablast claiming that it is the best in the market. Additionally, he tells her that the power washer was going to go up in price by $100 in the next week. Scottish Law of Contracts states that a contract is a legally binding agreement that the parties voluntarily enter into. Here, the sales assistant is obligated8 by the law to assist his customers and according to what the customers can see, he is clearly an expert in the power washer department. Therefore, customers are obligated to listen to him as the sole purpose of his being there is to assist them make the right decision. In this case, the sales assistant is even more convincing as he tells Arju that the particular power washer he was recommending was so good that its price was going to go up substantially in the next week. A contract has to have an agreement at least on the essential terms. Here, a contract exists between the assistant and Arju. This is because there was an agreement between the two parties that the best buy was the M16 Aquablast. There was consensus in idem that made Arju make her decision and the sales assistant clearly intended for her to purchase that particular washer. The assistant was convinced that that was the best value for Arju’s money. In so doing, he entered a legally binding contract with her albeit on behalf of the store that he represented. When the power washer did not therefore meet Arju’s expectations, she had a right to sue the store for misleading her and not seeing out their end of the contract. Their end was that the power washer they recommended was the best in the market and none of the others could beat it in value. That guarantee that the sales assistant gave Arju was a promise that she was making the right decision. Scottish law has a branch of voluntary obligations that make up the law of promises9. Here, the parties do not have to reach an agreement but the promise is still enforceable under the law. When the sales assistant promised that the M16 Aquablast was the best in the market, there was no need for there to be a consensus between him and Arju as ultimately that promise in itself is binding under the law. As Arju’s lawyer, I would advise her to sue the sales assistant on behalf of the store for not fulfilling his end of the contract by supplying equipments that did not match her expectations. Case 2 Arju, a concert pianist was dining in her favorite restaurant Grumpies. When she was about to leave, she falls under an uneven piece of carpeting where she breaks her wrist meaning that she becomes incapacitated to perform since her hands are what she uses. Clearly, Arju has visited this restaurant on a number of occasions and seems happy to dine here implying that she was aware of the policies of the restaurant. The policy of the restaurant is that it is not liable for the death or injury to an individual regardless of how it is caused. Here, there is a case of involuntary obligations10. Scottish law refers to these involuntary obligations as being delicts11. It is aimed at cautioning parties against wrongful conduct that may harm the interests of another party. The aggrieved party has a right to sue for the wrongful conduct that resulted in harm. Harm has to be caused to personal interest which may be the individual’s physical integrity or his property12. This is however dependent on the circumstances that led to the occurrence of the harm. For there to be proof that delictual action is necessary, there must have been wrongful conduct on the part of the part that led the harm to occur. In this case, the restaurant was negligent to the point that there was existence of uneven carpeting in the restaurant that led to a customer breaking her wrist. There is no legal justification here that warranted the harm to occur13. The delict in this case is unintentional. However, the restaurant was clearly careless in the matter regarding the carpeting as there should have been necessary caution taken to ensure that the customers were protected from any harm. The restaurant can therefore be said to have acted negligently. The restaurant has a duty of care to its customers. However, they have a disclaimer stating that they do not accept liability for injuries despite how they are caused. As Arju’s lawyer, I would advise her to sue the restaurant for having being negligent to the point that an uneven piece of carpeting caused injury to her. The merits of her action are that she was harmed due to the wrongful conduct of the restaurant and that under the law, she is protected from such harm. The restaurant is in this case delictually liable and should be sued for damages which are to be determined by a court of law. Case 3 A contract is formed when consensus in idem has been reached. This means that there is no preexisting rule that states that an offer and acceptance has to be existent. In this case, a contract exists between Arju and the concert hall where the law requires that she performs. By not seeing her end of the contract through, she is liable to be sued by the concert hall for damages. Arju made a promise to the concert hall that she was going to adhere to the terms of the contract that they had agreed on. There is no doubt that a contract exists between the two parties. Under the law therefore, the concert hall is entitled to damages for Arju’s non-performance of her end of the contract14. Arju can however claim that the contract has become frustrated due to the injury that she has suffered while at a restaurant. This means that she is incapacitated and cannot perform. Frustration occurs where an external event forces one of the parties to be relieved of his part in the contractual obligation. Here, a pianist cannot be expected to perform with a broken wrist. Thus, this occurrence relieves her of her contractual obligation and the contract is termed as being frustrated. The broken wrist amounts to frustration in the form referred to as a supervening impossibility15. This is where the contract cannot be fulfilled due to the destruction of the subject matter. In this case, the subject matter is Arju’s prowess in piano playing. Naturally, a piano can only be played by hand and as such, the injury suffered by Arju to her wrist can constitute destruction of the subject matter. If the court of law decides to award damages to the concert hall for any losses they may have incurred due to Arju’s non performance, then, the remoteness of damages16 would be in play. This is where the defendant, who did not see out his end of the contract, does not have to pay the full extent of the damages. In the case of Hadley v Baxendale (1854) 9 Exch 341[7]17, it was held that “in order to recover damages for a breach of contract, the loss suffered by the aggrieved party, must be such as may fairly and reasonably be considered either; as arising naturally, that is according to the usual course of things from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time in which the contract was made, as a probable result of the breach”. Therefore, due to natural circumstances, Arju would not be liable to pay the full amount of damages that a court may decide. Case 4 Arju was shopping for golf clubs in Deadheads store when she came across some ultra swish golf clubs that she had always desired. She knew that the value of the golf clubs was $1500 but the display showed that they were going at $150. She thought she would buy them but at the till, she was told that a mistake had occurred and that she would only get the clubs if she paid $1700. The display of the golf clubs can be considered as an invitation to treat. In the case between the Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd [1952] 2ALL ER 45618 it was held that the display of goods in a retail setting is an offer to treat and not an offer of a contract. The plaintiff in the case argued that the display of specific medicines on the shelves of the Boots cash chemists could be considered as an offer whereas the action of putting the medicines in the basket could be considered as an acceptance. The defendant on the other hand claimed that the display did not constitute any part of a contract and that an offer and acceptance which are the core tenets of a contract could only occur at the till. They considered an offer as the action of presenting the goods to the customers and acceptance as the action of processing and accepting the payment from the customers. In the case of Arju and Deadheads, Arju is of the idea that the fact that the golf clubs were on display is an offer from the store and the fact that she went to the counter to pay for them was an acceptance from her part. However, the fact that the golf clubs were on display, according to the case above, an offer is on the part of Arju who offers to buy the clubs by putting them in her basket. However, the store is either bound to accept the offer or reject it. They accept the offer once they accept the payment that Arju is about to make or reject the offer by refusing Arju’s payment. As her lawyer therefore, I would not urge her to make any claims against Deadheads as the case will be considered as not amounting to a contract as Deadheads did not accept her offer. 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