Contract Law Questions - Assignment Example

1 LAW Q2 The English common law system is unique because it is not codified. Instead, it relies on the principle of stare decisis. This means that courts base their decisions mainly on principles announced in former decisions termed case law. The Parliament though is given the power to amend or repeal such common laws and statute laws or Acts of Parliament and statutory instruments have recently become important legislations. Thus, I would tell my French friend that the codified French legal system is different from the English legal system which is a common law system relying on case law or the ratio decidendi of past cases and statutory laws (Owens 2001,p.3). a) A contract is a meeting of minds between two or more parties by which one party makes an offer and the other party accepts the offer. A contract of sale meanwhile is a contract where one party called the vendor or seller obligates himself to transfer the ownership of and to deliver a determinate thing, while the other party called the vendee or buyer obligates himself to pay for the said thing a price certain in money or its equivalent. In the case at bar, there are two issues involved i.e. whether there is an employment contract between Abe and his prospective employer and whether there is a contract of sale between Abe and the supplier of the goods. A further issue is whether Abe can return the goods and get his money back. As to the first issue there is clearly no meeting of minds as Abe merely presumed he will get the contract. There is no acquiescence to the contract on the part of the employer. There is no offer and there is no acceptance as mandated as essential in the case Adams v Lindsell (Furmston & Chevalier 2006,p.15). As to the second issue, it is clear that the contract of sale has already been perfected 2 and consummated and thus it can only be rescinded by any or both parties if there is a breach in the contract of sale of goods. On the part of Abe, he may rescind if the supplier commits a breach of warranty against hidden defects which also includes unfitness for the use intended or encumbrances upon the thing sold as illustrated in the case Re Moore v Landauer (Owens 2001,p.455). Since there is none of the above, there is no breach of warranty and thus he may not be allowed to return the goods he had bought. b). If a resprayed surface of the car may be considered as hidden or redhibitory defect, it is not a serious or important defect that may render the car unfit or considerably decreases its fitness. The respraying only causes a slight change in the quality of the car, for better or for worse, and may not even be considered as hidden defect. Thus I would advise Bert that there is no need to refund money because the act of respraying does not go into the root of the contract as held in the case HongKong Fir Shipping Co. Ltd. v Kawasaki. c) The court held in the case Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern ) Ltd. that "the display of goods in a store constitutes an invitation to treat and not a contractual offer". Thus, I would advise Chris not to pursue and insist on his offer to buy the mixer at the price he desired because the price tag in the advertised mixer is not a contractual offer but a mere invitation to inquire into (Salzedo et al 2004,p.4). d) There is obviously a contract of employment between Helen and the factory owners because there is a meeting of minds as to the object of the contract. In the case Lane v Shire Roofing Company, defendant was ordered to pay plaintiff Lane damages for injuries sustained by Lane while performing work in behalf of the defendants because Lane as independent contractor should be considered as company employee for the purpose of protecting him from injuries 3 sustained in the performance of the contracted duty (Vettori 2007,p.171). Therefore, I would advise Helen who is similarly situated to pursue her claim. I will also tell her that the warning doesn't carry legal effect as employers have to pay for injuries sustained by employees despite such warnings. Q3 Nuisance is defined as an unreasonable interference with a person's use or enjoyment of land, or of some right over or in connection with it (Green 2003,p.118). In the case at bar, Jo by maliciously firing guns at the boundary of his and Fred's property unreasonably interferes with Fred's use and enjoyment of his land. Jo further endangers the safety of Fred and his clients as the bullets have the probability of hitting any of them. His act also annoys, offends, shocks and defies the senses and hinders the use of property as people would be scared being caught by the bullets while lolling around the property. The case Halsey v Esso Petroleum Co. Ltd. showed to all and sundry how the court will penalise such destructive belcher of noise. As to the foul-smelling pig farm across the road which enjoys preexistence of operations , the landmark decision is provided by Sturges v Bridgman which held that the new Johnny-come-lately resident can pursue a claim for nuisance against the neighbour whom he comes upon generating activities tantamount to nuisance. Thus, I therefore advise Fred to file nuisance claims against both Jo and the pig farm owner. Q4 The object of the remuneratory contract in this case is the provision by Serversrus of a website for the business of French Discoveries. But it has failed miserably in its obligation and has caused damage to the business of French Discoveries. The law says that in rescissible, bilateral contracts where injury or damage is inflicted on one party, that party can ask for a discharge from the contract. The effect of this is "to terminate the contract for the future as for the moment when the acceptance is communicated to the party in default (Mussen v Van 4 Diemen's Land Co.) and the non-performing party may be sued for damages for breaching the contract and he will be released from further performing the obligation (Furmston 2006 ,p.692). Based on this, I therefore advise French Discoveries to rescind the contract and ask for damages. French Discoveries is also given another alternative and this is to treat the contract as still in force (Furmston 2006,p.688). This he can effectively attain by asking the court for specific performance on the part of Serversrus. In the event that Serversrus still fails to perform its obligation, French Discoveries can repudiate the contract and ask for unliquidated damages which the court will determine. It can also ask for restitution in case it had already paid remuneration to Serversrus. Q5. a) 10 health and safety regulations in UK that affect the construction industry: 1. UK's Health and Safety at Work Act of 1974. 2. Health Protection Regulations 1992. 3. The Construction (Health, Safety and Welfare) Regulations 1996. 4. Construction Design and Management Regulations 1994. 5. The Supply of Machinery (Safety) Regulations 1992. 6. Electrical Equipment (Safety) Regulations 1994. 7. Workplace (Health, Safety and Welfare) Regulations 1992. 8. Fire Precautions (Workplace) Regulations 1997. 9. Gas Safety (Installation and Use) Regulations 1998. 10. Personal Protective Equipment at Work Regulations 1992. 5 b)1. UK's Health and Safety at Work Act of 1974- This piece of legislation covers all workers or employees. It also covers "all those affected by the employer's undertaking such as contractors, visitors, students and members of the public" (Hughes & Ferrett 2005,p.10). 2. The Construction (Health, Safety and Welfare Regulations) 1996- This covers 'employers, self-employed persons, persons in control of the way others work, and all persons carrying out construction work" (Joyston-Bechal & Grice 2004,p.64). 3. Construction Design and Management Regulations 1994- it covers the safety of all construction workers on site and this also includes anyone who may come and visit the site including the clients, the planning supervisors, students, principal contractors and subcontractors (Turnstall 2006,p.96). Q6. The 5 steps to risk assessment are: 1st step: Look for the hazards- It is reality that millions all over the world had died from hazards in the workplace. Thus, the first step to reduce or even eradicate such deaths or injuries is to identify these hazards and thus observe utmost care to avoid them. Studies have shown that the most common of these are fires; chemicals; equipment, tools or machineries that impose a high degree of peril; slippery floors or stairs, high elevation of scaffoldings; noise that may imperil the sense of hearing; radiation especially ones that cause cancer; fumes, dust and other pollution that pose danger to the lungs etc. 2nd step: Decide who and what might be harmed and how- There are groups who because of the nature of their work or their conditions are specially vulnerable to hazards of work. Those who work in the laboratory dealing with hazardous chemicals are in danger of getting lung diseases. Pregnant women are vulnerable to tripping in slippery floors or stairs. 6 3rd step: Evaluate the risks and decide whether existing precautions are adequate or more are to be done- This step is important in order that one can draw an action list and find ways to eliminate all hazards that are left. 4th step: Record your findings- It is important to note down in a record book that problems in the workplace had been dealt with and possibly resolved. For example, a notebook might contain the following i.e. 'Electrical installations and insulations had been checked and found sound'. This step shows that precautions had been kept to a reasonable level and that the remaining risks had been curtailed. 5th step: Review your assessment- From time to time new risks crop up so the assessment must be constantly reviewed and updated through safety inspections and monitoring techniques. All these require corrective and further action where the new need is identified ( Rivers & Umney 2003,p.426-7). Q7. The development company is overwhelmingly liable under the laws on public nuisance, the UK Torts Act 1977 and the Occupiers Liability Act 1984. I therefore advise Freda to file a claim for damages under these laws. I would tell her that under the "res ipsa loquitor" principle on Torts, the company is liable for the death of Fred, her injuries and the destruction of their car as these happened inside the premises of their property and that the company faces an assumption of negligence and want of due care. The UK Torts Act 1977 lucidly states that "where there is no preexisting contractual relationships between the parties, the party who by act or omission, there being fault or negligence, is obliged to pay for the damage done" (Harpwood 2005,p.22). I would also tell Freda that under the law on nuisance, particularly the principle "sic utere tuo ut alienum non laedas" which mandates that the owner of the property should so use his own 7 property so as not to injure another , the company is clearly liable (Getzler 2004,p.122). Lastly, under the Occupier's Liability Act 1984, which imposes to the owner of the property the common law duty of care to trespassers who may face the spectre of injury in the premises, the company is again liable for damages (Potter 1997,p.185) If the company transforms the condemned property into a parking lot business, there is now a contractual relation between the company and the one who parked. Thus, when deaths or injuries ensue, the company is liable for damages under breach of the implied contract between the 2 parties. The company is now vested with the obligation to provide that degree of diligence in order to prevent injury to others. Because the danger is great because of the condition of the property, the greater also is the degree of care required to be observed. Failure to do so makes the company liable for compensatory and consequential damages. Q8. The difference between a public nuisance and a private nuisance is that public nuisance affects the public at large or such of them that may come in contact with it while in a private nuisance, the individual or a limited number of individuals are affected by the unlawful act (Fairgrieve 2003,p.95). As such, both Andrew and Bert are guilty of nuisance, Andrew of private nuisance because the facts of the case shows that Bert alone suffers from the dust pollution while Bert is guilty of public nuisance because gunshots ring throughout the whole area and affect that part of the community besides any of the residents are vulnerable to getting bullets emanating from those gunshots. Since both are guilty, I would advise them not to go to court directly because it is ideal for those who go to court to come to court with clean hands. I would advise them to settle the problems between themselves preferably with a town official acting as mediator. As to Chuck, it appears that the 'rave' is but a celebration tantamount to a thanksgiving feast and is but once in a lifetime event and thus not a nuisance. I would advise 8 Chuck to explain this to Andrew with an apology with a promise that it will be the last of it that it will be the last of it and that his business is not rowdy entertainment but a pacific and legitimate business. I wouls also tell Chuck that his case is different from R v Shorrock where the nightly acid parties are frequent and habitual. Q10. A contract is formed once a party makes an offer and such is accepted by the other party despite the fact that there is yet no consideration i.e. payment. In the case at bar, there is partial and substantial performance because there only a few features are missing in order to complete the job package. Thus, I would advise Sue to refrain from payment until completion of the work and instead ask that the defects be first corrected. If Kitchensrus insists that it be paid, Sue had 2 options i.e. pay the agreed contract price "minus a reasonable amount to cover thecosts of completing the work (Wright 2004,p.92) or if Kitchensrus refuses, go to court and ask for specific performance. In the scenario where after 3 weeks, Kitchensrus abandons its job in favor of a more lucrative contract, I would advise Sue to ask Kitchensrus to finish its job before plunging to another assignment. If this fails, I would counsel her to file a complaint in court for specific performance and injunction. If this again fails and the 6 -week period had elapsed in violation of the contract, I would exhort Sue to file for a breach of contract with prayer for damages- compensatory; nominal; punitive; exemplary (Owens 2001,p. 321) plus consequential damages as illustrated in Hadley v Baxendale. Q11. In this case which involves supply of utilities (electricity) for a local government in UK, Directive 2004/7/EC implemented into UK law by the Utilities Contracts Regulations 2006 govern. Under this, it is imperative that there be transparent and equal treatment of tenders ( Sapte 2006,p.53). But it seems that Borchester B.C. infringed this law when it awarded 9 the contract to Cheapelectrics Ltd. despite the fact that Electricsrus submitted the lowest bid, which is the criterion. The rationale "because of the nature of the bid submitted" reeks of intransparency. As such the contract is void ab initio not only because it violated the law Utilities Contracts Regulations but also it is also contrary to public policy because "it is against the interest of UK (Kelly et al 2005,p.168). I therefore will advise Borchester B.C. that it would be a folly to seek for damages or specific performance. It is thus incumbent for it to annul the contract and award the contract to the rightful bidder, Electricsrus. But justice also demands that it pay the value of 5000 metres of cable already installed by Cheapelectrics. In this manner, this case also shares the nature of an unenforceable contract as there was already some physical delivery but was declared unenforceable at one stage (Singh v Ali). But in reality, judges had difficulty differentiating void from unenforceable contracts (Kelly 2005,p.319). Q12. The English common law system is primarily based on case law. This means that the principles distilled from the adjudications of previously decided cases or the precedents are made the main bases of the decisions of the courts as well as the appellate decisions of the House of Lords. The courts disregard the policies derived therein because these properly belong to the Parliament. The case of McLoughlin v O'Brien brilliantly illustrates the effect of the court decision to resolution of succeeding cases that are similarly situated. In this case the principle of the "immediate aftermath" doctrine was formulated. This declared that "an action will lie for injury by shock sustained through the medium of the eye or the ear without direct contact". The House of Lords held that plaintiff was entitled to recover damages from defendants for the consequent psychiatric illness sustained after she laid eyes on her dead daughter and her seriously injured husband and 2 children, not at the scene of the accident but at the hospital 10 (Mcloughlin v O'Brien). This ratio decidendi and the principles emanating from the case were later on used as basis for the decision in Kelly v Hennessy and several other cases. The principles and the ratio decidendi of foreign decisions also influence many judges in coming up with particular decisions. This is acutely illustrated by the stand of Lord Bridge of Harwich who was moved by a foreign case where a mother suffered nervous breakdown after reading in a newspaper about the demise of her family in a hotel conflagration. This case contributed to the formulation of the "immediate aftermath" principle. Q13 Because of a high incidence of injuries in the construction workplace, current legislations have trained their guns on employers, giving them obligations and responsibilities to mitigate if not eradicate these injuries. At least 3 regulations zeroed in on employers' responsibilites and liabilities and these are Construction Design & Management Regulations 1994; Health Protection Regulations 1992 and Construction (Health, Safety and Welfare ) Regulations 1996. All of these laws compel the employers to provide job safety and health protection by promoting healthy and safe working conditions to all their workers and employees and to take a professional attitude towards the management of health and safety in their workplace. Furthermore, these 3 laws constrain employers to provide a hazard-free workplace that is safe from possible deaths or injuries that may befall their workers. Likewise, employers must allow regular inspection of the workplace and must comply with current occupational health and safety standards. Lastly, employers must keep standardised records of deaths, illnesses and injuries in their workplace and which must be submitted to an inspectorate board (Loosemore 2003,p.213-4). Q14. The contract between AB Attics Ltd and Mr. and Mrs. Smith is solely for the conversion of the couple's loft. And whenever the company's worker suffers injury or even death in the 11 course of the performance of the labour encompassed under the contract, the employer is liable by the principle of vicarious liability for whatever damage inflicted and for the employee's hospitalisation or interment using the employers liability insurance (Furness & McMuckett 2007,p.20). But in the case at bar, cleaning the gutters and repainting the chimneystack, which were the direct cause of Jim's fall and damage to the couple's car, were outside the ambit of the contract. On analysis, the couple employed Jim on these undertaking and as his employers they must pay for the damage inflicted on their own car as well as for the treatment of Jim's injuries. Thus, I will advise Jim and AB Attics Ltd to file for compensation due to Jim's injuries. I will counsel AB Attics that it is not vicariously liable for Jim's injuries because what he was doing that caused the injuries was done on the volition of the couple Smith. Q16. Nuisance ,which is one that violates only private rights and produces damages to but one or few persons, forces judges to balance competing interests among land owners and users. In the case Sedleigh-Denfield v O'Callaghan, these competing interests are identified as "the right of the occupier to do what he likes with his own land and the right of his neighbour not to be interfered with". The judge must maintain a precarious balance between the two and must utilise several tests to decide which interest must be favoured. One of these is the reasonableness of the defendant's conduct and this will be determined by looking into the circumstances surrounding the occurrence of the act in question, the area of its commission, the duration of the act and the nature of the injury (Robinson v Kilvert). Other tests as enunciated in the Cambridge Water case is the principle of reasonable user as well as whether the defendant can reasonably foresee that an interference can occur. There is also the question of whether defendant was merely careless and was without intention to create a nuisance but merely tolerated it (Leakey v National Trust). There is also the test of whether the challenged act is authorised by statutes and when it is, the 12 the damages will not be actionable (Allen v Gulf Oil Ltd). There is also the test of whether the act is the end result of the exercise of a statutory duty (DoT v North West Water Authority) Q17. Breach of contract means that a party in a contract fails to perform an obligation which he took upon himself to perform under a contract or when he performs defectively or incapacitates himself from performing without lawful excuse (Furmston 2006,p.671). These are exactly what Shareserve managed to accomplish under its contract with Spanish Holiday Homes. The law states that breach of contract would give the innocent party the right to seek for damages for the loss of economic opportunity and for a virtual destruction of one's business. In the case at bar, where the non-performance goes to the heart of the contract because the nature of the business of Spanish Holiday Homes is the seeking through the Internet of potential buyers of homes in Spain and because the website of Shareserve no longer is functional, the business practically grinds to a halt. It is a material breach of contract that licences the plaintiff to seek for damages, liquidated or unliquidated and the right to terminate the contract. Q18. Contracts in English law are characterised by the presence of 3 key requirements, where absence of one makes the contract void ab initio. These are agreement, consideration and intention to create a legal relation (Kouladis 2006,p.76,81) In this case that involves a brother and a sister, there is an agreement and an intention to create a legal relation but there is absolutely no consideration. The law states that for a court to enforce the contract, both parties must bring an economic value to the bargaining table. Obviously, Fred failed to name his price because of his affection to his sister but still there is sensed an anticipation to be paid for the job done although there may be no expectation to gain a profit . But the landmark case of Bret v JS & Wife shot down "natural affection" as one possible consideration which would make the court enforce the contract. Furthermore, the case Bainbridge v Firmstone held that gratuitous promises 13 do not make a consideration and thus agreement of this nature is not enforceable in English law. As such from the onset, there was no contract at all. Thus, I will advise Mavis that she cannot bring an action against Fred for negligence nor is she liable for anything under the contract because there is no contract in the first place. I will counsel her that in case she files a complaint in court , the court will nullify the contract and place both parties to the moment prior to the agreement. This means that the whole building becomes the property of Fred and she comes out with nothing except fraternal alienation. Bibliography of Books Fairgrieve, D 2003, 'State liability in tort', Oxford University Press. Furmston, M.P. & Chevalier, G 2006, 'Cheshire, Fifoot and Furmston's law of contracts', Oxford University Press. Furness, A & McMuckett, M 2007, 'Introduction to fire safety management', Butterworth- Heinemann. Getzler, J 2004, "A history of water rights at common law', Oxford University Press. Green, D 2003, 'Torts law', Routledge. Halsey v Esso Petroleum Co. Ltd. (1961) 11 WLR Harpwood, V 2005, 'Modern tort law', Routledge Cavendish. Hughes,P & Ferrett,E 2005, 'Introduction to health and safety at work', Butterworth- Heinemann. Joyston-Bechal,S & Grice, H 2004, 'Health and safety law for the construction industry', Thomas Telford. Kelly, D., Holmes, A & Hayward, R 2005, 'Business law', Routledge Cavendish. Kouladis, N 2006, 'Principles of law relating to international trade', Springer Loosemore, M & Dainty, A 2003, 'Human resource management in construction projects', Routledge. Owens, K 2001, 'Law for non-law students', Routledge Cavendish. Potter,D 1997 'Risk and safety at play', Taylor & Francis. Rivers, S & Umney,N 2003 'Conservation of furniture', Butterworth-Heinemann. Salzedo,M., Brunner,P & Ottley,M 2004, 'Briefcase on contract law', Routledge. Sapte, Denton Wilde 2006, 'Public Private Partnerships', Euromoney Books. Turnstall, G 2006, 'Managing the building design process', Butterworth-Heinemann. Vettori, S 2007, 'The employment contract and the changed world of work', Ashgate Publishing Ltd. Wright, D 2004, 'Law for project managers', Gower Publishing, Ltd. Bibliography of Cases Adams v Lindsell (1818) 1B& Ald 681 Allen v Gulf Oil Ltd (1981) AC 1001, 1011 Bainbridge v Firmstone (1838) 8A & E 743 Bret v JS & Wife (1600) Cro Eliz 756 Cambridge Water Co Ltd v Eastern Counties Leather Plc (1994) 2 AC 264, 300 DoT v North West Water Authority (1984) AC 336, 359 Hadley v Baxendale (1854) 9 Exch 341 HongKong Fir Shipping Co. Ltd. v Kawasaki Kisen Kaisha Ltd. (1962) 1 All ER 474 Kelly v Hennessy (1995) 3 IR 253 Lane v Shire Roofing Company (Oxford) Ltd. (1995) PIQR 417 Leakey v National Trust (1986) QB 485 McLoughlin v O'Brien (1982) 2 All ER 298 Mussen v Van Diemen's Land Co. (1938) 1 All ER 210. Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd, (1953) 2 WLR 427. R v Shorrock (1994) QB 279. Re Moore & Co and Landauer & Co. (1921) 2KB 519 Robinson v Kilvert (1889) 41 Ch D 88 Sedleigh-Denfield v O'Callaghan (1940) AC 880, 903. Singh v Ali (1960) AC 167. Sturges v Bridgman (1879) LR 11 Ch D 852 Read More