Foundations of the Law of Obligations - Essay Example

Foundations of the law of obligations Introduction In Butler Machine Tool v Ex-cell (1979 All ER 965 , Lord Denning was of the opinion that the best approach of determining the existence of a valid contract between two parties was to look at the forms, to glean from the agreement as continuous passing of documents between the parties offers flexibility and enables informed decision-making in making of valid contracts. In the above case, the plaintiff (Butler Machine Tool Co) wanted to sell a machine to the defendant (Ex-cell Co) at price of 75, 535 pounds, but the plaintiff attached some terms and conditions to the sale quotation in addition to a price variation clause of 2,893 pounds. The defendant responded to the offer with a counter-offer by setting out new terms and conditions and excluding the price variation clause (Koffman and Macdonald 134). The counter-offer contained an acknowledgement slip that explicitly set out that the buyer’s conditions would form the basis of the contract. The plaintiff signed the acknowledgement slip and delivered it back to the buyer. Plaintiff (seller) retuned the cover letter stating that delivery was to be ‘in accordance with our revised quotation of May 23rd’. The Court held that the counter-offer by Ex-cell Co extinguished the validity of the original offer by Butler Machine Co thus price variation clause did not form part of the contract. In addition, by signing the tear-off acknowledgement slip send by Ex-Cell Co, Butler Machine Co had signified and validly accepted a new offer thus destroying their original offer. The issues that arose centered on the battle of forms when parties send their own terms and conditions that they seek to be applied to the contract (Taylor and Taylor 153). In this case, the terms and conditions send by the last party to communicate usually form the basis of the contract and thus the valid terms and conditions for the contract were those send by buyer (Ex-Cell C0). The majority adopted the ‘mirror image’ approach to valid contract formation by asserting that acceptance must mirror the terms contained in the offer. According to this mirror image approach, a buyer’s order that contains variations of the seller’s offer quotation should not be construed as an acceptance, but a counter-offer (Charman78). Young asserts that a legally binding contract requires offer and acceptance, but some unusual commercial transactions may entail negotiations that are evidenced by a series of passing of documents such as quotation, purchase order and acknowledgement of the purchase order ( 89). United Kingdom still conforms to the ‘last shot rule’ in determining the battle of forms contract cases since a counter-offer rejects the original offer (Mulcahy 102). This traditional way of analysis of the offer and acceptance is evident in the case of Trollope & Colls Ltd v Atomic Power Construction Ltd (1963) 1. W.L.R 333 when the court held that a counter-offer kills the original offer. Acceptance of the counter-offer must be communicated in order to form a valid contract as evidenced by the requirement of acknowledgement slip by Ex-Cell Co (Poole 18) Under the United Nations Convention on Contracts for the International sale of goods (CISG), Article 19 (1) asserts that an offer that purports to be an acceptance, but contains additional terms, limitations and conditions is a rejection of the initial offer and amounts to a counter-offer (Richards 321). Article 19 (1) clarifies that additional terms that affect the quality, price and time of delivery to the extent of the liability of one party are considered to alter the original offer materially thus amounts to counter-offer (Bix 190). Under the principles of European contract law, Article 2.208, a reply by offeree that contains new terms is rejection of the initial offer. UNIDROIT PICC Article 2.11 on battle of forms, a counter-offer rejects original offer while Article 2.22 requires the parties to indicate in advance or immediately of their intention of not being bound by a contract where they have reached an agreement on standard terms. However, Denning advocated that the best solution was to apply an objective test of the conduct of the parties and language used in the documents. In this case, Denning asserted that if the difference in terms is so materials that it would affect the price of the contract, then the buyer ought not to be allowed to take advantage of the difference in terms unless he or she has drawn specific attention to the terms to the seller (Hare 74). In other cases, if the terms and conditions of both parties show significant irreconcilable differences when construed together, the courts should replace the differences with a reasonable implication. In this case, Lord Denning considered all the documents, but selected the buyer’s document as the ‘decisive’ document’ while Lawton and Bridge followed the classical doctrine of offer and acceptance. In the case of Brogden v Metropolitan Railway Co (1877) and New Zealand Shipping Co Ltd v A.M Satterthwaite & Co Ltd (1975) A.C 154, it is evident that passing of documents and conduct of parties will identify whether an agreement has been reached even though there may be differences in terms and conditions. In this case, a contract is usually formed when the last of the forms is sent and received without objections (Stone 56). Accordingly, in case of material differences, it is good that one party to draw attention to the other party as in the case of Butler Machine Co v Ex-Cell Co when required an acknowledgement slip on the terms and conditions of the counter-offer (Blum 244). Conclusion The ‘last shot’ rule forms the foundations of obligations where battle of forms arises in contracts in the United Kingdom. A counter-offer rejects the original offer and one is expected to accept the terms and conditions contained in the counter-offer in order for a valid contract to exist (Collins 41). Part B Clarence advice The Occupiers liability Act 1957 require occupiers or people in control of the land or premises to undertake measures that will ensure the safety of the visitors. The duty is to take such care that will ensure the visitors will be reasonably safe for the purposes for which they are in the premises. The Frescos supermarket not only occupies the shopping building, but the car parks and pavements. According to Section 2 (4) of the Occupier liability Act 1957, the court will consider how obvious was the danger, warnings provided by the occupier, the age of the visitors, the adequacy of lighting within the environment of the danger and how expensive is to remove the danger. A damage that is caused by a visitor of which he has been warned does not necessary absorb the occupier from liability. The warnings should be enough to make the visitors to be reasonably safe while using the premises. The warning should make a difference and thus the supermarket failed in providing effective warnings. Frescos supermarket had put a sign to warn the customers, but Clarence could not see it due to blindness. The courts will factor the adequacy of lighting within the environment of the danger. In this case, Clarence is blind and could not have seen the warning sign or detected the danger even if there was adequate lighting in the supermarket. Abigail should have noticed the blind condition of Clarence by watching her movements from the moment she entered the supermarket. In this case, Abigail failed in providing the required shopping assistance to a blind customer thus contributing to the injury. The courts will consider the special circumstances of the claimant. In this case, Clarence was totally blind and thus could not see the warning sign. Accordingly, the courts will consider the experience of the staff and special circumstances that led to the injury. From the outset, Brutus is a highly trained and skilled shop manager, but illness led to his irrationality and sleepiness. In this case, the courts will also consider the experience of Abigail and her roles and responsibilities in her work placement at the supermarket. The courts must ascertain whether the Brutus had delegated his responsibilities to Abigail and whether the supermarket had clear policies on the safety of customers at the supermarket. In a secondary system of responsibility, the members of staff are under a duty to provide inspection of the premises and detect any hazards that may harm the visitors to the premises. The proprietor of the supermarket should have an adequate system of mitigating hazards in the premises. The courts will also consider the regular safety inspections that are conducted on the premises and the reasonable frequency of inspections in order to determine the liability to the occupier. In this case, the management of the supermarket made omissions since the freezer was badly maintained for a long period. Surprisingly, the expenses of maintain the freezer are minimal and thus Brutus should have taken action to ensure the freezer is properly maintained. This shows that the occupier made omission in making sure the premise is safe for the customers and thus is liable for the damages suffered by Clarence. The common duty of care includes the duty to avoid negligent acts and negligent omissions. The Unfair Contract Terms Act 1977, Section 2 (1) provides that liability for death or personal injury that results for negligence and breach of common duty of care cannot be excluded. Esther advice Some degree of actual physical control of premises is required for occupier liability to occur. According to Occupiers Liability Act 1984, Esther can sue the owners of the supermarket since the law requires the owners of any public property to ensure the safety of lawful visitors to the premises (Davies 267). Esther is a lawful visitor and she is entitled to claim damage for personal injury or death (Jones 78). The occupier is owed a duty of care if there are reasonable grounds to belief the danger exists or is aware that other people apart from the customers may come near to the danger (Strong and Williams 134). The courts will consider the gravity of the danger and measures that the occupier of the supermarket has undertaken in order to mitigate the danger associated with playing cricket near the car park. Fred, the first aid officer has not attended any of the mandatory training for the first aid officers and had limited medical ability. Fred panicked and administered Esther with intravenous coagulant, but Esther was pregnant and the treatment is inappropriate (Mulheron 67).In determining the medical negligence, the courts will consider the medical ability of Fred and circumstances surrounding the urgent medical attention. Esther will have to prove that Fred was negligent and has suffered harm as a result of the negligent act of Fred. The court must find that Fred acted in a manner that is not in accordance with the professional expectations. In this case, the court will consider the medial abilities of Fred since he has not undertaken mandatory first aid courses. Esther’s damages will be assessed on the quantum basis of the current and future earnings, the reduction in the quality of life enjoyed and mental suffering incurred due to the harm (Hiltz 20). Esther, must demonstrate to the courts that she suffered damages due to the head injury and subsequent inappropriate medical attention by Fred in order to qualify for compensation. An employer will be responsible for vicarious liability for the negligent acts or negligent omissions committed by an employee in the course of employment. In this case, Frescos Supermarket is partly liable for the damages since the employer has not provided adequate training and skills to Fred. Accordingly, Fred is liable for the injury suffered by Esther since he should have exercised due care and diligence in administering the first aid to Esther (Mulheron 45). Works cited: Bix, Brian. Contract law: rules, theory, and context. Cambridge: Cambridge University Press. 2012. Blum, Brian. Contracts: examples & explanations. Austin: Wolters Kluwer Law & business. 2007. Charman, Mary. Contract law. New York: Routledge. 2013. Collins, Hugh. The law of contract. Cambridge: Cambridge University Press. 2003. Davies, Alex. Workplace law handbook 2011-health and safety, premises and environment handbook. London: Workplace law Group. 2010. Hare, Clarke. The law of contracts. New Jersey: Lawbook Exchange. 2003. Harpwood, V.H. Modern tort law. New York: Routledge. 2008. Hiltz, Panteleymon. Medical malpractice: issues and law. New York: Novinka. 2004. Jones, Lucy. Introduction to business law. Oxford: Oxford University Press. 2013. Koffman, Laurence and Macdonald, Elizabeth. The law of contract. New York: Oxford University Press. 2010. Lunney, Mark and Oliphant, Ken. Tort law: text and materials. Oxford: Oxford University Press. 2011. Mulcahy, Linda. Contract law in perspective. New York: Routledge. 2008. Mulheron, Rachael. Medical negligence: non-patient and third party claims. Burlington: Ashgate. 2005. Poole, Jill. Textbook on contract law. Oxford: Oxford University Press. 2012. Richards, Paul. Law of contract. London: Pearson. 2006. Steel, Jenny. Tort law: text, cases, and materials. Oxford: Oxford University Press. 2009. Stone, Richard. The modern law of contract. New York: Routledge. 2009. Strong, Stacie and Williams, Liz. Complete tort law: text, case and materials. Oxford: Oxford University Press. 2011. Taylor, Richard and Taylor, Damian. Contract law. Oxford: Oxford University Press. 2013. Young, Max. Understanding contract law. New York: Routledge. 2009. Read More