Analysis of the Contract Law Cases - Assignment Example

Assignment 2 Graduate Development Programme Introduction to Law Bianca Doherty 0602979 16 July 2007 Contents Page Pages 3 - 4 Task For the standard form contract that you obtained from your workplace for Activity 2.1, identify: three express terms; an exclusion of liability clause; a limitation of liability clause; a price variation clause In 300 words, summarise the provisions of the clauses that you have identified. If you cannot identify some of these clauses in your contract, state the general legal purpose of the omitted clause(s) and why you believe it is not present in your work-based contract. Pages Task 2: From your findings for Activity 2.10, summarise in 200 words how the requirement for 'reasonableness' under the Unfair Contract Terms Act 1977 will be interpreted in commercial/business contracts. Pages Task 3: Referring to Activity 2.15, summarise in 200 words the alternative forms of dispute resolution available either for: construction disputes; or for landlord and tenant disputes Your choice will depend upon your sector of practice. Pages Task 4: Your employer has asked you to make a presentation to trainees explaining the assessment of damages in some areas of law of tort as applied to your area of specialism. The presentation will explain how damages are assessed for the torts of: nuisance; negligence; and trespass to land Submit the presentation that you prepared for Activity 3.2, complete with preparatory notes. Your presentation should be no longer than 300 words in total and may be prepared as PowerPoint slides (although it is not compulsory to do so). Pages Task 5: Use your knowledge of the law of tort to provide suitable advice for the following scenario in 400 - 600 words. David, an accountant, wishes to purchase Rose Cottage and has been advised by his solicitor that he should obtain a structural survey from a professional surveyor. David asks his friend, Joseph, who is a trainee surveyor and works for Young & Elder, a firm of surveyors, if he would ask his firm to do the survey for him. Joseph tells David, "It will cost you a fortune to pay the firm; I will do it for you free of charge." Joseph completes the survey for David, giving him a written report using Young & Elder's standard survey form, which indicates there are no structural problems and that the purchase price is a fair reflection of the value of the property. David proceeds and purchases Rose Cottage. Some months later, the chimney collapse through the roof, causing considerable damage to the roof and ceilings. Experts now advise David that the surveyor (Joseph) was negligent in not recognising a structural defect when conducting the survey. David is threatening to sue Joseph for professional negligence for the costs of the repairs. Joseph has responded by saying that they did not have a contract, the report was done as a favour and David knew he was only a trainee. Advise David whether he ahs a legal claim against Joseph. Pages Task 6: Use your knowledge of the law of tort to provide suitable advice for the following scenario in 400 - 600 words. A firm of surveyors has organised a dinner and dance for its employees to be held at The Birds Nest Hotel. It is a private function and only employees and their guests are invited. The hotel is being rewired and a reputable, local electrical contractor, Sparks Ltd, is doing the work. The Hotel's owner, Simon Bird, has placed a notice at the hotel entrance: Beware - Work in Progress, The hotel management accepts no liability for any injury caused due to the electrical works in progress. Two employees of the surveying firm are injured at the Hotel. Barney, a senior surveyor, trips over a roll of wire that had been left in the reception foyer by an apprentice electrician working for Sparks Ltd. The reception area is quite dark, as several lights are not yet connected. Catherine, a secretary, when looking for the 'Ladies room', goes through a door market 'Private' and is electrocuted when she touches a light switch that has bare wires left exposed by the electricians working for Sparks Ltd. Advise Barney and Catherine whether they have a legal claim against Simon Bird and/or Sparks Ltd for the personal injuries sustained. Page 10 References Task 1: For the standard form contract that you obtained from your workplace for Activity 2.1, identify: three express terms; an exclusion of liability clause; a limitation of liability clause; a price variation clause In 300 words, summarise the provisions of the clauses that you have identified. If you cannot identify some of these clauses in your contract, state the general legal purpose of the omitted clause(s) and why you believe it is not present in your work-based contract. The three express terms in standard form contract can be identified as: 1. a. The company has right to monitor the work done by the organisation or the person to whom it has awarded the contract. b. The contractor's report on his method of working need to be submitted as a programme. It can be termed as contractor's obligation to show progress in the works in the periodic reports. The determination of extension of time in case of incomplete operations can be based on actual delay but not on the analysis of the programme. c. The identification of the accepted programme can be treated as another express term. It can be identified with contractor' tender and there after treated as the accepted programme. 2. The exclusion of liability cause: The organiser or the person who got the contract from the company can express disclaim for all the liability and damage to persons or goods including the exhibits or furnishings in the premises. This exclusion of the liability generally will be irrespective of cause or responsibility. The exclusion of the liability cause will be complete if the damage is a result of the organiser's buildings or furnishings. In this contract, this exclusion is not included. The damage due to the external causes can be excluded and the remaining damages can be excluded from the liability of the contractor to whom the retail sales contract has been awarded. The liability cause is limited to the internal cause in case of damage and the external causes cannot make contractor bind over for the damage. 3. In the third express term, the price variation clause of raw material can be considered. This is because the company is awarding a retail sales contract. This should include the wage variation that causes the price variation. In case of industrial tenders, the raw material supplied can be considered for the price variation. In case of retail sales, the goods supplied by the company to the retail contractor can be considered as the raw material and the price variation clause can be applied. The supplier has to mention the base price of the material supplied to the retail contractor. Task 2: From your findings for Activity 2.10, summarise in 200 words how the requirement for 'reasonableness' under the Unfair Contract Terms Act 1977 will be interpreted in commercial/business contracts. According to unfair contract terms act 1977, the references to liability are needed to be considered. The liability of an occupier of the premises for breach of an obligation or duty towards a person obtaining access has to be mentioned in that context. This access is restricted because the company awarding the contract can claim that the equity regarding the premises and the business is owned by it. Here this clause can be termed as unfair because the contractor who got permission for retail sales from the company is paying an amount to the company and the amount includes the value of the material supplied. If the company wants to own the equity, it can take the money as deposit regarding the material supplied only. When it is taking the money as deposit and charge for franchisee, without considering the ownership of equity; it can be termed as unfair. This is according to the unfair terms act of 1977. This can be termed unfair because, the company is imposing liability on the contractor for the damage caused due to internal causes for the business and the material. In that context, the owner of the equity should bear the damage cost also. When that liability has been imposed on the contractor, the ownership of equity of the business, by the company avoiding the contractor as a partner in it, can be termed as unfair. It will be fair if the contractor shares the equity of the business with the company. Task 3: Referring to Activity 2.15, summarise in 200 words the alternative forms of dispute resolution available either for: construction disputes; or for landlord and tenant disputes Your choice will depend upon your sector of practice. Construction disputes are fairly common when the constructions involve the partnership of the persons or organisations. The problems will be escalated when the constructions involve or used for the businesses run on contract basis or by franchisees. The reason is that the contemporary construction project requires the coordination of numerous interdependent components, including information, materials, tools, equipment and a large number of personnel working for independent engineers, contractors and suppliers. In contract businesses and franchisees if the construction disputes are not resolved in time, the problem will precipitate by the time the contract or the franchisee period expires. This involves the finances, time and opportunity costs wasted in the course of dispute resolution process. The construction disputes, if not resolved by arbitration or by mediation, they involve high legal costs to get resolved. The monitoring and overseeing of the projects using management reporting tools are capable of reducing the project costs. The legal assistance regarding construction can maximise the opportunities and improve the performance. The dispute will exist in the presence of ambiguity about the contract between parties and the terms in it. The letter intent can be considered as best documentation in the above mentioned circumstances. When these issues involve the construction context, the general principles are used to sort out the disputes between the parties and projects. So far, the majority of the construction disputes are being settled outside the ambit of the law or by the arbitration purposes. Task 4: Your employer has asked you to make a presentation to trainees explaining the assessment of damages in some areas of law of tort as applied to your area of specialism. The presentation will explain how damages are assessed for the torts of: nuisance; negligence; and trespass to land Submit the presentation that you prepared for Activity 3.2, complete with preparatory notes. Your presentation should be no longer than 300 words in total and may be prepared as PowerPoint slides (although it is not compulsory to do so). Tort is a legal term that gives the meaning as a civilian wrong. This can be termed as criminal wrong as it is against law. The law that is mandatory for citizens and employees, when violated can be treated as tort. The harming of employers property or the business by the employee also comes under tort. In this paper the tort regarding nuisance, negligence and trespass to land are discussed by employees and citizens. Nuisance: The tort of nuisance allows the employer to sue for most acts that interfere with the use and enjoyment of the property and business owned and administered by him. When the employee violates the norms of the agreement between him and the employer or if he insults the clients or customers in the course of his duty, the employer can take legal action on him or can sue him for the compensation for his acts of tort. Negligence: The negligence has several meanings from the view of tort. It can be tort of negligence or careless behaviour and can be decided as per the context. After assessing their conduct the judge can assess the negligence of the person involved in the tort case. The moral responsibility is not taken into account and the damages caused due to negligence only will be considered by court of law in the context of negligence. Similarly the employer cannot sue for the employee's irresponsibility but he can sue him when there is any damage to the organisation or its business due to irresponsibility of the employee. This comes under tort of negligence and action can be taken by the court. This means that the employer can sue the employee after the damage has been done but not for prevention of damage. Tress pass to Land: Any person can be protected by the tort law regarding his property. The protection for the property by tort law can be from many aspects like nuisance and trespass to land. The trespass to goods and conversion also can be taken into consideration for suing by the plaintiff, under the ambit of tort law. Task 5. Use your knowledge of the law of tort to provide suitable advice for the following scenario in 400 - 600 words. David, an accountant, wishes to purchase Rose Cottage and has been advised by his solicitor that he should obtain a structural survey from a professional surveyor. David asks his friend, Joseph, who is a trainee surveyor and works for Young & Elder, a firm of surveyors, if he would ask his firm to do the survey for him. Joseph tells David, "It will cost you a fortune to pay the firm; I will do it for you free of charge." Joseph completes the survey for David, giving him a written report using Young & Elder's standard survey form, which indicates there are no structural problems and that the purchase price is a fair reflection of the value of the property. David proceeds and purchases Rose Cottage. Some months later, the chimney collapse through the roof, causing considerable damage to the roof and ceilings. Experts now advise David that the surveyor (Joseph) was negligent in not recognising a structural defect when conducting the survey. David is threatening to sue Joseph for professional negligence for the costs of the repairs. Joseph has responded by saying that they did not have a contract, the report was done as a favour and David knew he was only a trainee. Advise David whether he ahs a legal claim against Joseph. The above condition of the David comes under the protection of economic interests. In protection of economic interests, the land lords should prove that they are engaged with legal business practices under common law. The illegal business practices come under unethical practices according to common law and cannot give any protection for the property including protection against tort. The economic torts can be considered as the acts that deserve punishment or to pay compensation for the plaintiff. The limited economic protection to the plaintiff under the common law has been left to the statute of the law to draw the conclusions and to give the judgments. As this is offering limited protection and was left to the discrimination of the judges and the statute, it was being controversial because in some cases taken up by a bench may result in diverse opinions by the judges in the bench. This is due to the lack of clarity in the law. This involves the chapter on negligence also to decide the compensation for the economic loss. This ambiguity in the law made the tort and contract intersect. As a result a distinction is needed to be drawn between economic loss and physical damage. This makes economic loss obvious and physical loss clear under the economic protection of a person by the law and statute. In the above mentioned case, the legal opinion before the purpose was to survey the property by a professional surveyor. David instead of contacting a professional surveyor took the services of a trainee without giving a contract for work from him. In the absence of a contract neither the trainee nor the professional are responsible for the results that are opposite to their survey. This is due to the fact that the absence of contract cannot compel the surveyor to submit the report with his signature. He will just write a report of the facts he observed regarding the property. In the above case though there is no contract between David and Joseph regarding survey, David has a chance to bring Joseph for a compromise. He can sue Joseph using his company's unauthorised form and this may amount for cheating. Opting for proceedings under cheating David can compel Joseph to give him the compensation for the economic loss he incurred due to him. If David is successful in making Joseph comply with his demands due to the proceedings of the cheating case, he can get compensation. If Joseph proceeds to the court, David may have no other way except to continue the case on Joseph. Task 6. Use your knowledge of the law of tort to provide suitable advice for the following scenario in 400 - 600 words. A firm of surveyors has organised a dinner and dance for its employees to be held at The Birds Nest Hotel. It is a private function and only employees and their guests are invited. The hotel is being rewired and a reputable, local electrical contractor, Sparks Ltd, is doing the work. The Hotel's owner, Simon Bird, has placed a notice at the hotel entrance: Beware - Work in Progress, The hotel management accepts no liability for any injury caused due to the electrical works in progress. Two employees of the surveying firm are injured at the Hotel. Barney, a senior surveyor, trips over a roll of wire that had been left in the reception foyer by an apprentice electrician working for Sparks Ltd. The reception area is quite dark, as several lights are not yet connected. Catherine, a secretary, when looking for the 'Ladies room', goes through a door market 'Private' and is electrocuted when she touches a light switch that has bare wires left exposed by the electricians working for Sparks Ltd. Advise Barney and Catherine whether they have a legal claim against Simon Bird and/or Sparks Ltd for the personal injuries sustained. In general people are interested in their personal security. This can be provided in number of ways by the governments by bringing the personal security aspects under law. The protection of law regarding the personal security will be in the form of punishing the perpetrator or by making him to pay the compensation for the victim. In these cases the victims must make the court to trust that the damage or hurt has been done due to the tort of assault or negligence. The assault can be considered when there is a physical interaction between two parties, persons or groups. In case of negligence, the services and products offered by different firms may cause damage to the consumers, customers and users. This comes under the ambit of law as tort of negligence and the perpetrator can be booked under the tort law regarding negligence. In case of selling of products, the seller will give some assurances regarding the product. If that product violates those conditions in causing a loss of physical damage to the buyer, the seller can be sued. In case of services offered, the firms offering services is responsible for the damages and economic losses incurred to the users due to the negligence in offering the services. If the firm is supposed to get the license for offering services after safety precautions taken and instruments fixed; the loss incurred to the users by that firm can be sued for the compensation. In the above case the hotel management is using the hotel under modernisation or repairs to offer the boarding and lodging services to the customers. It is even offering the services at the customers' personal responsibility. In case of hotels and the firms like theatres, the managements are responsible for the protection of the customers, users and audience. These institutions can even be sued and seized for the lack of health protection activities. In the above case the hotel management is responsible for the safety of the individuals as long as they are not intentionally injuring them selves. The board before the hotel that disclaims the responsibility for the safety of the customers is not sufficient for the hotel management to escape from the responsibility of the protection of their customers. The surveyors firm can sue the hotel management for the physical damage caused due to the irresponsible and illegal attitude of the hotel management. As doing business while the repairs are going on is illegal, the surveyors firm can sue the hotel management asking compensation for the physical damages caused to their personnel in their stay at hotel. References Task 1 to Task 6 a. Richard Card, John Murdoch, Sandi Murdoch (2003) Estate Management Law b. CEM study materials: Paper 6024 (2004), Sources of English Law, CEM c. CEM study materials: Paper 6025 (2006), The administration of justice, CEM d. CEM study materials: Paper 8299 (2005), Dispute resolution, CEM e. CEM study materials: Paper 3681 (2005), Principles of land law, CEM f. CEM study materials: Paper 3682 (2006), Landlord and tenant relationship, CEM g. CEM study materials: Paper 6031 (2001), Formation of a valid contract, CEM h. CEM study materials: Paper 6032 (2002), Factors that affect the validity of a contract, CEM i. CEM study materials: Paper 6033 (2002), Contents of a contract, CEM j. CEM study materials: Paper 6034 (2002), Discharge of a contract, CEM k. CEM study materials: Paper 6035 (2002), Remedies for breach of contract, CEM l. CEM study materials: Paper 6041 (2002), General liability, CEM m. CEM study materials: Paper 6042 (2002), Direct and indirect interference with land, CEM n. CEM study materials: Paper 6043 (2002), Negligence, CEM o. CEM study materials: Paper 6044 (2002), Defective premises, CEM p. Cgda, 2007, ELEMENTS OF PRICE AND THEIR VARIATIONS, Cgda.nic,in, ,electronic, 18-07-07, http://cgda.nic.in/rt/rtcblr/website/Training%20Material/R%20&%20D/R&D%20Purchase%20Training%20Material/I-%20Financial%20Evaluation/Orders/Chapter%2010%20DGS&D%20Manual.htm q. Net Lawman, 2003, unfair acts of 1977, Net Lawman, ,electronic, 18-07-07, http://www.netlawman.co.uk/acts/unfair-contract-terms-act-1977.php r. Media wiki, 2007, tort law, Wikipedia, ,electronic, 18-07-07, http://en.wikipedia.org/wiki/Tort s. Media wiki, 2007, tort law, wikipedia, ,electronic, 18-07-07, http://en.wikipedia.org/wiki/Tort#Nuisance t. Pearson, 2000, general principles, pearsoned-ema.com, ,electronic, 18-07-07, ftp://ftp.pearsoned-ema.com/HPE_Samples/SampleChapters/9781405846943.pdf Read More