Liability in the Contract Law and in the Tort of Negligence - Essay Example

Law of Contract & Negligence of Tort Module Module ID: i. Difference between the liability in contract law and in the tort of negligence: Law of Contract binds the parties to the contract to fulfil the terms and conditions of the agreement they have entered into. Contract Law defines contract in these words: “An agreement creating and defining obligations between the parties”1 is a contract. Essentials of a Valid Contract:2 1. Agreement between two or more parties 2. Intention of entering into Legal relationship 3. Lawful consideration 4. Capacities of the parties 5. Free consent of the parties 6. Lawful object Hence, the above-mentioned conditions make a lawful contract between the parties, and violation of the terms of a valid contract comes under the definition of breach of contract. Breach of contract simply refers to the breaking of the obligations of the contract. Breach of Contract may be actual and anticipatory. Actual breach of contract: Actual breach of contract occurs when a party does not perform the part of his obligation; express and implied breaches also come under actual breach. For instance, Edward agrees to supply one hundred LCDs to Paul on 10th July, 2012. If he fails to do so without describing any cause for the delay or non-performance of the same, he has breached the contract. Similarly, if Paul refuses to pay against the same, he is also liable to be breaching the obligations of the agreement between the two. Furthermore, supplying sub-standard material and making unnecessary delays also comes under the description of breach of the contract. Anticipatory breach of contract: When a party repudiating its promise before time for performance arrives; for instance, Angelina announces to marry John the next year. However, she renounces the same before the beginning of the next year. It is breach of contract on the part of Angelina, and John can claim damages for the same. Hence, obligations of contract bind the parties to fulfil the responsibilities of their part, non-compliance of which creates liabilities on them. Section 37 of the Act discusses the liability of the parties in these words: “The parties to a contract must either perform or offer to perform their respective promises, unless such performance is dispensed with or excused under the provisions of this Act, or any other law.”3 Illustration: A offers B his services for fixing air-condition system at his office, and B accepts the offer against the consideration of worth £ 5000. However, the system collapses after two days of its fixing causing a short circuit in the office and loss of £ 20,000. Since A had not examined his system properly, he has committed liability negligence on his part. On the other hand, tort of negligence appears at the moment when individual rights of one or more persons are violated. “A tort is a civil wrong for which a remedy, usually compensation, is available to the wronged person in the civil courts.”4 Hence, tort actually serves as a civil wrong, which affects the private legal rights. “Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.” 5 The main difference between the two is as following: Breach of contract carries a contract between the parties; while in tort of negligence, no contract has been entered into between the parties. Breach of contract binds the parties to the contract; on the other hand, tort of negligence affects the private rights of one or more person(s). The remedy as damages in case of breach of contract is decided in accordance with the terms and conditions mentioned in the contract. On the other hand, damages in tort are determined on the basis of the nature and intensity of the losses. Breach of contract clearly decides the amount of compensation as damages; while in tort, it is entirely on the discretion of the court of law. In breach of contract, the parties can take plea of ignorance; on the other hand, it is not acceptable in case of tort of negligence. ii. What liability does Donald’s company have if they are sued for Negligence? When two or more parties enter into a contract, they have the liability of fulfilling their part according to the terms and conditions mentioned in the contract, according to the prevailing statutes of law. The remedies include: 1. Rescission of the contract 2. Suit for damages 3. Suit upon quantum meruit 4. Suit for specific performance 5. Suit for injunction6 Hence, sections 65, 66, 70 and 73 of Contract Law provide remedies for the breach of contract to the parties. Similarly, Law of Torts binds them to keep the rights of others in mind while exercising different kinds of personal or professional engagements. The same is applied to Donald’s company. In addition, the company is under obligation to pay due heed to its activities, and should not enter into such acts that could put the working or rights of others into jeopardy. For instance, the company can launch its business transactions at any commercial zone of the city, though it cannot enter into the same in a residential area; and if it starts business activities in a residential area, which is not allowed by the community members, it is liable for paying damages for the same. Moreover, the company cannot damage the reputation of its competitors by spreading false information about their products, or misusing the brand title or logo etc, similar to its rival firms. Furthermore, the company cannot create noise, through its machinery etc, in such a manner that could create disturbance for others. Similarly the company’s blocking the passage of others through any means also comes under the definition of negligence. In addition, throwing garbage in or adjacent to the premises of others, and keeping hurtful animal lose to discourage the clientele of others are also the tort of negligence. Hence, creating of any disturbance, nuisance and irritation for others comes under the definition of tort of negligence for the company. “Both Contract Law and the Law of Torts are part of the Civil Law; however, in the Law of Contract, the obligations imposed in the contract have been agreed to by the parties when they entered into the contract.”7 And in torts, no agreement or contract has been entered into by any parties, and liability arises out of the negligence on the part of one or more parties. iii. What liability does the business have for actions carried out by people working there whether employed or contracted? At the eve of making recruitments and hiring the services of staff members, all organisations issue instructions regarding the strict and unconditional observance of all the rules and regulations introduced by the management in respect of their individual and collective behaviour, which is called vicarious liability. “Vicarious liability is the absolute liability of one party-generally the legal principal-for misconduct of another party i.e. her agent.”8 Consequently, the organisations are responsible for the misconduct of their employees during work hours, and hence are responsible for any tort of negligence observed by the employees. Compulsory Insurance Act 1969 defines employees in these words: “The term employee means an individual who has entered into or works under a contract of service or apprenticeship with an employer whether by way of manual labour, clerical work or otherwise, whether such contract is express or implied, oral or in writing.”9 Hence, both employed and contracted workers come under the liability associated to the companies, firms and employers. Consequently, the Donald’s company is also liable for any misconduct made by any of its employees under civil liability. Civil Liability Act 1978 c. 47 states: “Any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage.10 Thus, if any of the employees make any disturbance or irritation for others, the sufferer can claim damages from the company at the court of law in the light of tort of negligence. iv. Dale Carnegie and Cleaners: Tort of negligence provides remedy to the victims of hurt and harm caused by the violation of their individual rights and privileges. Somehow, it is also a famous maxim that “Ignorantia juris non excusat”11, i.e. ignorance is not an excuse in law. It also means that law does not help the sluggish, lazy and ignorant people, who do not perform their responsibilities with care and prudence. The same is applied to the case under examination. The case creates dual negligence: a) One committed by the cleaner by keeping the vacuum cleaner at the passage b) The other committed by the victim Dale by trying to climb the stairs with a thick pile of material that made him unable to look ahead Although Dale Carnegie is a trainee employee of Donald’s firm, and does not enjoy all the benefits and privileges attributed to the regular employees of the organisation, yet it does not mean that he should be provided with the compensation for committing the mistakes out of his own. Since Dale had carried the pile of articles, which turned him unable of sighting the scenario before him, the cleaners could not be held as the only responsible for his injury. Hence, his accidental injury is actually the outcome of his own negligence, which is actually a contributory negligence on his part. Contributory negligence is negligence against which no compensation or remedy could be granted. In National Cab Co. V. Bagby12, a passenger received injury while attempting to ride off a taxicab during her travelling in the cab. As she was attempting to ride off from the wrong door, an automobile collided with the cab, and injured the plaintiff’s hand. “In the trial court the plaintiff recovered a verdict against the defendant. On appeal, held, reversed. The plaintiff was guilty of contributory negligence as a matter of law.”13 The same is applied to Dale in the above case, where he is guilty of contributory negligence by being unable to look ahead because of the pile of material he had held while climbing the stairs, and slipping from the cleansing machine i.e. vacuum cleaner put there by the cleaner. As a result, being the guilty of contributory negligence, Dale will not get any compensation from the Donald’s company. Bibliography Handford, Peter (2011) Intentional Negligence: A Contradiction in Terms? Sydney Law Review [VOL 32:29] pp. 29-63 Retrieved from http://www.austlii.edu.au/au/journals/SydLRev/2010/2.pdf Johnson, Cecil W. (1955) Torts - Plaintiffs Violation of Municipal Ordinance as Contributory Negligence William and Mary Review of Virginia Law Volume 2 Issue 2 Article 19 pp. 198-207 Retrieved from http://scholarship.law.wm.edu/wmrval Kraakman, Reinier H. (1999) Vicarious and Corporate Civil Liability Encyclopaedia of Law and Economics 3400 (B. Bouckaert & G De Geest, eds.) pp. 669-682 Retrieved from http://encyclo.findlaw.com/3400book.pdf Rose, Francis D. (2007) Blackstone’s Statutes on Contract, Tort & Restitution Oxford University Press p. 97 Shukla, M.C. (2012) Business Law Business FK Publications pp. 127-158 Singh, Avtar (2005) Law of Contract Sixth Edition Mansoor Book Publishers Urdu Bazaar Delhi pp 19-31 UK Law of Torts Chapter 11 Torts of Negligence Retrieved from http://www.oup.com/uk/orc/bin/9780199289714/jonesibl_ch11.pdf US Legal Definitions of Ignorantia juris non excusat Retrieved from http://www.oup.com/uk/orc/bin/9780199289714/jonesibl_ch11.pdf Read More