Detailed Analysis of Common Law Cases - Assignment Example

Task 1.a The requirements of a valid contract are that there must be an offer, an acceptance of the offer and consideration, which means that there is either a promise for a promise in a bilateral contract or a promise and performance in a unilateral contract. The first issue is whether there was an offer and acceptance. Doris did not make a valid offer, as she was advertising the vase in her shop, and this is treated as an invitation to treat (Spencer v. Harding (1870) LR 5 CP 561). The principle that a shop owner displaying goods for sale is making an invitation to treat, not an offer, was established by Pharmaceutical Society of Great Britain v. Boots Cash Chemists (Southern) Ltd. [1953] 1 QB 401. In this case, the court held that a seller of pharmaceuticals in a shop are not making a valid offer to the customers of these pharmaceuticals, and that, when a customer picks up a pharmaceutical and brings it to the counter, that customer is not making an acceptance. Fisher v. Bell [1961] 1 QB 394 further states that a shopkeeper offering an item for sale is not making a valid offer, but, rather, when the customer presents the item to the cashier, the customer is the one making the offer to buy. The acceptance in this case is the act of the cashier taking the customers money. Partridge v. Crittenden [1968] 1 WLR 1204 further provides credence for this view, as, in the Partridge case, the offer of birds for sale was not a valid offer, in part because the storekeeper might be contractually bound to sell items that he might not actually own. This line of cases establishes that Doris did not make a valid offer (rdi.co.uk.com). She put a vase in the window of her shop with a sign stating that the vase was on offer for £500. Unless she was making a different kind of advertisement where she offered to pay somebody money in exchange for something else, as was the case in Carlill v. Carbolic Smoke Ball Co. [1893] 1 QB 256, the seemingly only exception to the rule that advertisements are not considered offers, then Doris cannot be said to have made a valid offer. Even if Doris was held to have made a valid offer, then Frank cannot be held to have made a valid acceptance, as he offered £400 for it. He was thus making a counteroffer, because of the “mirror image rule,” which states that an unequivocal acceptance must mirror the offer exactly, and any deviation made by the offeree to the offeror is a counteroffer (rdi.co.uk.com; Restatement 2d Contracts §59a). Since Doris offer was clearly for £500, and Franks offer was for £400, then Frank was not accepting Doris offer. However, this is probably not what the courts would hold, as Doris did not make a valid offer. Therefore, in the case of Eddie, Eddie made the offer to Doris, who appears not to have accepted the offer, so a contract was not formed. Likewise, Frank made a valid offer of £400 to Doris. Doris, on the other hand made a counteroffer, which effectively rejected Franks offer, so a contract was not formed. Then, Frank decided to accept Doris counteroffer of £450. According to the posting rule, established by Adams v. Lindsell (1818) B &Ald 681, the acceptance of the offer would have taken place not at the time of communication, which would have been when Doris actually received the letter, but, rather, at the time of the mailing of the letter, when the letter was posted. In this case, Frank accepted Doris counteroffer of £450 at 12:30 PM. However, Frank accepted the counter-offer after he had explicitly rejected the counter-offer, so, at the point that he rejected the counter-offer, the counter-offer has come to an end, so, in actuality, Frank was making a new offer of £450 when he sent his letter. But this is only one way of thinking about it, for the court could state that Frank was merely accepting the counteroffer, as his “offer” was the exact same amount as the counteroffer. So, assuming that the £450 was considered an acceptance, his acceptance would have been timed at 12:30 PM. On the other hand, Eddie sent an offer to Doris for £500. The question is whether this was really just an acceptance of Doris offer. It would seem, by the line of cases, that this would not be the case, as Doris offer was really just an invitation to treat. However, in this case, Eddie did not actually present the vase for purchase in the shop, as was the case with the line of cases regarding invitations to treat. But, rather, he went and put his offer in writing, so the facts are slightly different. If Eddie was considered to be making an offer to Doris, then, because Doris didnt accept the offer, there would presumably be a contract made with Frank, as Frank made the first acceptance in this case. However, if Eddie was held to be merely accepting Doris offer, then the contract would be formed with Eddie, as, per the mailbox rule, Eddies acceptance was posted before Franks acceptance was. So, that is the crucial question – was Eddie making an offer or an acceptance? 1b. The parties must have an intention to have a contract (rdi.co.uk.com), and there must be a meeting of the minds. So, in the above case, Doris did not intend to make an offer because her intention was only to display her vase for sale. This is important, as she was free to offer the vase to anybody without necessarily being tied to a contract if somebody accepted the vase. Eddie intended to make an offer as did Frank. However, there did not seem to be a meeting of the minds between any of the parties, so no contract was formed. Even though Eddie and Frank intended that a contract be formed, since Doris apparently did not accept either offer, then there was not a contract formed just yet. As for the capacity to make a contract, the law states that individuals do not have the capacity to contract if they are a minor or are mentally incapacitated. By mentally incapacitated, the elements are that the individual does not understand the terms of the bargain, and the other person knows that the person does not understand (Hart v OConnor [1985] AC 1000 ). Also, somebody who is intoxicated may also use this defense if that person does not understand the bargain (Pitt v Smith (1811) 3 Camp 33 ). Minors may be bound by contracts for necessaries or contracts for employment (rdi.co.uk.com). In this case, none of the parties are minors, none of them were intoxicated, and there was no indication of any mental incapacity, so there was a capacity to contract for all of them. Task 2 2a. This case revolves around an exclusion clause (rdi.co.uk.com). In this case, the vendor, Mix-o-Crete, states that it undertakes no liability for the defects. There are two issues here, one is whether the clause operates as a valid exclusion clause and the other whether the clause is void for being unfair. In this case, the clause would be considered to be a true exclusion clause, as it purports to disclaim liability for the defects in the goods sold. In order for it to be valid, however, it must be incorporated into the contract. There are three ways to incorporate the exclusion clause into the contract – by course of dealing (McCutcheon v. David MacBrayne Ltd. [1964] 1 WLR 125), which means that the parties have dealt regularly with one another, and exclusion clauses were always a part of the bargain between the parties; and incorporation by notice, which means that one party makes an effort to bring the clause to the attention of the other party (Parker v. SE Railway (1877) 4 CPD 416; Thornton v. Shoe Lane Parking [1971] 2 WLR 585; Olley v. Marlborough [1949] 1 All ER 127). Olley states that notice must be given before the contract is fully formed; Thornton states that, if the clause is wide, more effort must be given in bringing the clause to the attention of the other. The third way is incorporation by signature (LEstrange v. Graucob [1934] 2 KB 394). LEstrange had similar facts as the case at bar, in that it dealt with a business owner who bought a cigarette vending machine, and signed the contract without reading it. The contract in LEstrange stipulated that all normal warranties were null and void. The plaintiff in that case tried to explain that she was not bound by this exclusion clause because she did not read the contract before signing it, but the court held that this was not a good excuse, and that if she signed it, she was bound by it. A lower court did rule in the plaintiffs favor and stated that, because the other party did not bring the clause to her attention, she was not bound by it. The higher court, however, as stated above, ruled against her, so this is what the rule is in this case. Even though Bob did not read the contract, therefore did not know that the exclusion clause was in there, he was still bound by it because he signed the contract. The next concern was whether the exclusion clause violated the Unfair Contract Terms Act 1977 (The Act). This is an act which may either render a term ineffective or subject to reasonableness. So, a term may either be void or voidable if it was deemed not reasonable. One of the terms of the The Act is that a manufacturers guaranteed cannot exclude a loss arising from defective good if the good are of a type ordinarily supplied for private use or consumption (Unfair Contract Terms Act 1977 §5(1)). In this case, what Bob bought was a concrete mixer, so this is not something which is ordinarily used for private use or consumption, so this would not apply. Section 6(2) further states that implied terms as to quality cannot be excluded against a consumer. Since Bob was a businessman, this also would not apply. 2b. Because Bob signed the contract, even though the term was not brought to his attention, and he was a businessman, it appears that the exclusion clause will be valid. This is probably a matter of public policy, in that business people are supposed to be careful and savvy enough to not sign contracts without signing them and understanding them. If Bob was a consumer, then the clause would have probably been invalid under the Unfair Contract Terms Act. But, this is not the case, so the clause will probably stand. Task 3 3a. Under the doctrine of vicarious liability, employers are liable for negligent acts of their employees while the employee is performing his or her duty for the employer (rdi.co.uk.com). Although the traditional test excluded intentional acts, recent cases have established that an employer may even be liable for an intentional act committed by the employee (Lister v. Hensley Hall Ltd. [2002] 1 AC 215). Detours from the course of employment, such as when an employee drives off his route to do a side errand for himself, may mean that vicarious liability does not apply during the period of time that the employee was doing his or her side errand (Joel v. Morison [1834] EWHC KB J39). A master-servant relationship is usually necessary to establish vicarious liability. In order to be considered a servant, it must be shown that that the master controls the servants work by dictating what work would be done and how it would be done (Yewens v. Noakes (1880) 6 QBD 530). Another consideration is, when the employee is giving a lift to another, and injures the other person, the employer may or may not be held vicariously liable for the injury. In Conway v. George Wimpey & Co. Ltd. [1951] 2 KB 266, the employer was held not liable for injuries to a passenger who was picked up by an employee, during the course of the employees business with the employer. Yet, in Rose v. Plenty [1976] 1 WLR 141, the employer was held liable. In that case, the injured was a young boy who was assisting the employee in distributing milk. Because the boy was helping the employee in furthering the business of the employer, this is why the employer was held liable. 3b. The Occupiers Liability Act 1957 is an act in which an occupier of land must treat all legal visitors the same, or the duty towards all legal visitors are the same. This is provided that the visitor acts in a way that in accordance with what reasonable person would expect. The exception to this rule is for children (Glasgow Corporation v. Taylor [1922] 1 AC 44) and for people who are on the property professionally or exercising a trade, as long as the occupier warns them about special risks (Occupiers Liability Act 1957 § 2(3)(b); Roles v. Nathan 2 All ER 908). There is generally a duty to warn, although a warning may not absolve the occupier. Plus, where the danger is unusual or extreme, the occupier must put up barriers, not just warn the visitor (Rae v. Mars (UK) Ltd. 1990). So, under this act, if an individual is visiting a home, provided this individual was not trespassing, and this individual slips and falls on the doorstep of the occupier, and the occupier is negligent because he or she did not clear ice off of the doorstep, then the occupier is liable to the visitor for the damages caused. Perhaps if the visitor was warned about the ice, this would absolve liability, but maybe not. On the other hand, if the person who is visiting comes over and jumps from the top step of the second story down to the bottom step and gets hurt, there is not liability, because that person did not act reasonably. The exception is a child who jumps from the top floor – the occupier might still be liable in this case. A professional entering the home enjoys a lesser duty of care from the occupier, so the professional who comes in to inspect something and gets hurt may not be able to sue unless it is a special risk. In that case, the occupier must warn the professional of the special risk, such as that there are loose wires which might result in electrocution. The Occupiers Liability Act 1984 is an act that covers trespassers. Previously, before this act was enacted, if a person trespassed on anothers property, and got hurt, that person could not sue unless he or she was recklessly or intentionally injured (Addie v. Dumbreck [1929] AC 358). The Occupiers Liability Act 1984 changed this, and the occupier may be liable to a trespasser for injuries if the owner was aware that there was danger on the property and that the trespasser may be near it. A classic example of this would be when the occupier has a swimming pool, and a child comes into the yard and gets in the pool. In that case, if the child drowns, then the occupier will be liable if the occupier has knowledge that the child is in the yard and does nothing about it. Perhaps another example would be an occupier who has knowledge that there are poisonous bushes on his property, and he or she encounters people on his or her land who cut through the property on their way to somewhere else, therefore he or she is no notice that trespassers often use that land. In that case, there would be a duty to warn about the bush, because if somebody trespasses and eats the berry and dies, then the occupier might have a duty of care towards that person and might be on the hook for the death. 3c. Strict liability in the tort sense means that liability may be imposed regardless of whether negligence or tortious intent are present. What must be proved was simply that a tort happened and that the defendant was responsible. This is reserved for situations which are inherently dangerous. It can be contrasted with ordinary negligence, in that you must prove duty, breach, causation and damages. With strict liability, you must only prove causation and damages. An example of strict liability would be a man who has a tiger and he takes pictures of people with this tiger. If the tiger mauls somebody to death, then the owner will be liable, regardless of whether or not there is negligence involved. The very act of photographing people with a wild animal is an inherently dangerous one, so strict liability will apply. In contrast, if negligence must be proved in this instance, you have to show that the tiger owner had a duty and he breached the duty. So, perhaps his duty to keep people safe was that he must make sure that the tiger has eaten recently and that the people who pose with the tiger are not on their menstrual cycle, as this will cause the tiger to maul somebody. There might be other precautions that need to be taken, and, if all these precautions are taken and the tiger mauls somebody, the tiger owner can say that he or she is not liable because no duty of care was breached. In strict liability, the owner cannot say this, because he or she is liable even if every precaution imaginable was taken. Task 4 In this case, Tony would be held negligent for the accident involving Mike and Seamus. The elements of negligence are duty, breach, causation, damages. Tony had a duty to Seamus, in that Seamus was a worker at the factory and it was foreseeable that he would be hurt if Mike drove a forklift. Tony breached that duty by ordering a man who was inexperienced on the forklift to drive it. This breach of duty was the cause of Seamus injury, and Seamus was actually injured, so the elements of negligence are satisfied. Mike is a cleaner in a factory, and there is no indication that he has any other duties outside of cleaning. In fact, Mike told Tony that he had never driven a forklift, yet Tony still had him drive the forklift. When Tony had Mike operate a piece of machinery that Mike had never before operated, then Tony is breaching a duty of care. As for whether there was vicarious liability here, this is doubtful. Mike driving the forklift was entirely out of his employment duties. This is similar to the case of Beard v. London General Omnibus Company [1900] 2 QB 530. In that case, a conductor, who was an employee whose duty was to collect fares as people board the bus, made the decision to drive the bus. This was held not to be in the course of his employment, as his duties did not include driving the bus. As for Jerry, there might be vicarious liability. Jerry was in the process of driving home when he crashed the van, and he was also picking up his daughter. In the first instance, when an employee is driving home from work, there is not ordinarily vicarious liability. The exception is when the transportation is provided by the employer, and this was the case here (Smith v. Stages [1989] AC 928). And, because Jerry was performing duties for his employer on his way home from work, it can be said that he was still conducting duties for his employer. The question is whether picking up the daughter is a “frolic of his own” which takes the employee out of the scope of his duties (Joel v. Morison [1834] EWHC KB J39). It can be argued that , if the accident occurred right after he picked up his daughter, and his daughters school was nowhere near any of the delivery sites and completely out of his way, then there would not be vicarious liability. However, this was not the case, as the facts state that he crashed the car after his last delivery. Therefore, the frolic had ended at the time of the accident, and Jerry was once more performing employer duties, so there probably will be vicarious liability for the employer in this case. Jerry had the duty to Michael, in that it was foreseeable that, if he negligently drove his van, somebody would be injured, he breached that duty by negligently driving his van, his negligence caused Michaels injury, and Michael was injured, so the elements of negligence are satisfied here as well. Table of Cases Spencer v. Harding (1870) LR 5 CP 561 Pharmaceutical Society of Great Britain v. Boots Cash Chemists (Southern) Ltd. [1953] 1 QB 401 Fisher v. Bell [1961] 1 QB 394 Partridge v. Crittenden [1968] 1 WLR 1204 Carlill v. Carbolic Smoke Ball Co. [1893] 1 QB 256 Restatement 2d Contracts §59a Adams v. Lindsell (1818) B &Ald 681 McCutcheon v. David MacBrayne Ltd. [1964] 1 WLR 125 Parker v. SE Railway (1877) 4 CPD 416 Thornton v. Shoe Lane Parking [1971] 2 WLR 585 Olley v. Marlborough [1949] 1 All ER 127 LEstrange v. Graucob [1934] 2 KB 394 Unfair Contract Terms Act 1977 Lister v. Hensley Hall Ltd. [2002] 1 AC 215 Joel v. Morison [1834] EWHC KB J39 Yewens v. Noakes (1880) 6 QBD 530 Conway v. George Wimpey & Co. Ltd. [1951] 2 KB 266 Rose v. Plenty [1976] 1 WLR 141 Occupiers Liability Act 1957 Glasgow Corporation v. Taylor [1922] 1 AC 44 Roles v. Nathan [1963] 2 All ER 908 Addie v. Dumbreck [1929] AC 358 Donoghue v. Stevenson [1932] A.C. 532 Caparo Industries Place v. Dickman [1990] 2 AC 605 Hill v. Chief Constable of West Yorkshire [1989] AC 53 Beard v. London General Omnibus Company [1900] 2 QB 530 Smith v. Stages [1989] AC 928 Joel v. Morison [1834] EWHC KB J39 rdi.co.uk.com Read More