Aspects of Contract and Negligence for Business - Assignment Example

Contract Law By + QUESTION Persons less than 18 years old (called "minors and people are mentally challenged lack the power to engage in contracts. Any agreements made by persons below the legitimate limit are voidable. A special case to this rule occurs when various people enter into an agreement for "necessities. These products are suitable to the state of life of a junior are necessities such as, garments or sustenance. As such, the vendor could sue a minor who neglects to pay for these items. In any business transaction, the contracting parties must aim at making a legitimately tying contract (Andrews, 2011). If an agreement is made for business-related exercises, then either party can sue the other party if their contractual agreements are not met. This assumption becomes void if the parties explicitly express that they do not expect to make a legitimately trying contract. Due to these tenets, the words "subject to contract" appear on the document. These words have the lawful implication that the document is not an agreement and that the greater part of the substance is by a consequent contract (if the parties sign that agreement). A person that is acting "subject to contract" can withdraw from the arrangement whenever before the agreement is complete (Andrews, 2011). There is no agreement until the offer is acknowledged by the individual, to whom the offer is extended (called "the offeree"). Acknowledgement occurs orally or in written form. However, in the event that the agreement permits, the acknowledgement and execution of contractual obligations begins instantly. As such, certain behavior by either party can mean an acknowledgement of contract. For instance, when a supplier gets your check that the supplier might instantly convey the merchandise to you without saying or composing anything. It is suggested that both of the contracting parties check contact details and consent to them for acknowledgement. In contract law, consideration implies an obligation to the individual who made the guarantee, or a profit given to the other party, both of which are measurable in monetary terms. Cash, merchandise and administrations are well-known methods of exchange (Andrews, 2011). One ought to note that thought of offer is not enough. It implies that if the vendor or administration supplier is contracted to offer an item or administration at a value that is beneath the business value, then that merchant or supplier cannot go and seek compensation for the shortage. A guarantee of blessing is not enforceable in law due to absence of shared trade of thought. An offer is an expression of preparation to engage in a contractual agreement, which leaves no doubt that there is acknowledgement from the other party. In the event that no time limit is indicated, an offer is legitimate for a sensible timeframe before the offeror (the individual who makes the offer) can withdraw it. The main aim is the avoidance of any potential debate arising from the agreement. Nevertheless, the offeror needs to point out the due date for the acknowledgement of the offer. It is important to note that the offeror cannot consider silence from the other party as a type of acceptance. An offer is different from a "welcome to treat," which simply invites other individuals to make offers while in itself it is not an offer. Examples of ‘welcomes to’ agreements includes showing merchandise on the racks of a shop and the commercial advertisement of products or administrations in daily papers or on TV. QUESTION 2 There are certain legal implications of standard business contracts Each party to an agreement has an obligation to perform. In the event, that one party performs, and the other party does not, the performing party could seek for legal redress. Disappointment to perform under the agreement leads to the break of the agreement. The non-breaching party can record a claim against the other party to claim damages. The main intention of payment of damages is to place the non-breaching party in the expected state they were expected in had the other party kept their part of the contract (Andrews, 2011). Certain contracts give conditions to the execution of the contract. They may state that a person does not have the obligation to perform unless a certain condition happens. Consequently, nonperformance does not imply a breach of agreement. Case in point, an individual may have a property for rental business and contracts to offer the building to a certain organization on the condition that the other organization helps it obtain financing. When the other organization tries to seek financing and does not obtain it, the obligation under the agreement ends. In the event that somebody entered an agreement with a person and broke the agreement, the person must focus on the sort of damage that has happened. In the event that it is a material damage, the person does not need to perform on their end of the agreement. A material damage occurs when an individual does not get significant profit from their deal. Certain sorts of agreement must fulfill the statute of fraud under the watch of a court that will uphold them. An agreement fulfills the statute if the parties put their agreements in writing. The individual questioning the agreements legitimacy must have marked it, and the document must express the key terms of the understanding (Andrews, 2011). The importance of express terms implied terms and exclusion clauses are that they cover every possible scenario that comes up during the course of a business transaction. Furthermore, it highlights the penalties that arise when one of the parties breaches their contractual obligations. QUESTION 3 Various contracts exist in this situation involving PRIMARK DIRECT and PRESEC PACESETTERS. There is another party, JANGO SOLIUTIONS LTD. In the main contract between PRIMARK and PACESETTERS, there are certain elements of contracts that miss from the arrangement. Although, the offer has been passed back and forth, and they have both shown the willingness to engage in business transactions, no formal contracts have been signed between the two parties. PRESEC had stated in their email that if a formal agreement does not agree; they could still claim their expenses and profits that may from the transaction. There exists another contract between PRESEC and JANGO is valid. As a subcontractor, JANGO is not directly liable to PRIMARK. Their duty was to work on the software, and when they could not meet the standards that are expected, they were called off. As per their contract with PRESEC, they are not liable for claims from any third party. Due to this, PRIMARK cannot claim recovery of the already spent some from them. Because PRESEC subcontracted the software duty to a third party, they cannot enforce their claim for part of the profits they would have received if the service had gone through smoothly. QUESTION 4 While making a contract, numerous contractual terms are included within the contract. These can be warranties, conditions and innominate terms. These are the cause of contractual obligations, and when there is a breach, the other party has the right to claim for damages. Conditions in a contract These are the most critical in any contract. Conditions form the basis of any given contract, and any contract is not valid if there exists no conditions. They consist of the most important terms of the contract and have to be followed by either party to the agreement. Breach of contract leads to voiding of the contract by the aggrieved party and in essence, it renders the contract null and void. It simply ceases to exist. Before signing of a contract, both parties must expressly state their agreement to the conditions laid out in the contract (Andrews, 2011). Warranties These small and minor terms appear in the contract; although not vital for its existence. In the case of any breach, the aggrieved party cannot end the contract, however, they can claim for damages from the other party. Innominate terms The precedent case for innominate terms was the case involving Hong Kong Fir Shipping. Instead of generalizing the terms within the contract as warranties or conditions, this approach considers whether the injured person has lost due to a visible breach of the contract. In the case whereby a large amount of expected benefit was lost, there will be no option but to end the contract. Otherwise, if the loss was small, the matter ends by payment of damages. These terms should be handled carefully since if the innocent party claims wrongly, they are also liable for action against them (Andrews, 2011). Whenever a case is forwarded to the courts, the court evaluates both the contracts and decides whether the terms used are conditions or warranties. The main aim of this move lies with the duty of the court to protect citizens from malicious claims by either party. Numerous amendments made to the law of contract and these are put into consideration. Various damages arise due to contract breach. These range from loss of profits and wasted expenditure to the costs of rectifying the breach. Documents to prove actual financial loss need to be presented to the court. Despite this, the complainant can proceed with the claims given that the judge has to ascertain the actual validity of the agreed contract terms and conditions. TASK 2 QUESTION 1 Tort liability refers to the obligation of one person to another that arises due to a breach in their civil rights. The breach can occur due to a breach of the second party’s duties; negligence or from intentional actions. The person that is liable for the tort is referred to as a tortfeasor. Based on their actions, it is their duty for them to pay for any harm caused to the other persons. Concerning tort, injuries claimable are not only physical. It consists of a wide array of injuries such as violation of one’s private rights or emotional distress. Liability under contract implies the obligation of one party to another that arises out of a contract breach. For any party to claim for damages, they must have signed a contract between them. Furthermore, it must plainly exist that there are certain conditions that may lead to an aggrieved party seeking for damages (Andrews, 2011). There are outstanding differences between tort liability and contract liability. In the case of tort liability, no contract is needed between the two parties that are involved in the case. An individual’s civil rights can be affected anywhere and the lack of a contract cannot be used as a viable excuse by one of the parties. In case of contract liability, both of the parties must have signed documents expressing their willingness to transact. This is the document referred to in case of a breach and the laid out guidelines applied to claim for liability. This difference is applicable by the courts when awarding damages. In contract liability, the main aim of awarding damages is restoration of the aggrieved party to their initial position. In case of a tort liability, compensation awarded is in compensation for loss by the victim. QUESTION 2 To be subject for something, under the law, intends to be mindful somehow for a result that brings about an infringement of the law (criminal risk) or in harm to others (common obligation). Risk obliges purpose - that is, you are not in charge of something you did not intend to do. Then again, the law recognizes the idea of carelessness as an approach to consider an individual responsible when he neglects to use the most common alternatives, regardless of the possibility that they did not expect to cause harm (Andrews, 2011). In the case of tort negligence, for damages to be awarded in the case of negligence, certain factors must be established: · One party has a legal duty to perform a specific task and use reasonable care · The party failed to perform the duty · Plaintiff/ victim suffers loss or injury · The act of negligence has to be the cause of a particular injury. In the case of criminal negligence When one is accused of a wrongdoing identified with carelessness, the prosecutor asserts that the blamed did not plan to perpetrate the wrongdoing. However by and by acted in a way that the litigant ought to have known would have brought about a high probability of genuine damage to another person. Although criminal carelessness is hard to demonstrate, an average case may include an individual arraigned for careless murder in the wake of leaving a loaded gun in the presence of a drunkard who is in disagreement with their neighbor. In the event that the drunkard murders the neighbor, the prosecutor could charge the individual who left the firearm lying around with careless murder. Likewise, Tony Smith is accountable for the death of George Fowler. Given that he was the site supervisor, his role is to ensure that all the workers have a conducive environment to work. It is not a choice he has to make; it is a mandate he has to guarantee. Based on the case above, he knew that Gorge Fowler was the subject of bullying by his colleague and did not do anything about it. Ideally, he should have reprimanded Fyn or transferred one of them to reduce the chances of interaction. He decided to do nothing, and this ultimately led to the suicide of Fowler. Based on these facts, he is exposed to charges from Fowler’s family, Nigel Fisher and Barratt Homes Limited. Barratt Homes Limited may claim for damages for tarnishing the name of the company under the liability for torts and criminal negligence. It is because when the public learns of the suicide of one company employee, it tarnishes the image of the company. Few people will want any association with the company, resulting in potential losses for the company. Criminal negligence arises where Smith does not conform to his professional ethics. Upon employment, it was perceived by Barratt that Smith was proficient at his assigned role and fully understood what the company’s expectations were. Part of his duty while managing the site was handling the workers within his mandate. As such, when this does not occur, it is up to him to pay for his negligence. It is his decision to ignore Fyn’s behavior against George; it resulted to Nigel Fisher having a mild heart attack. This was because the site of George was traumatizing to him, and it affected him. Given that, Smith has caused this incident oversight of Fyn’s actions, then he is fully liable to pay for tort liability from Fisher. On the other hand, Smith can claim for damages from the health facility. As per the expectations, the ambulance would take about ten minutes to reach their location. However, it took much longer, and this lowered the chances of George’s survival. Their excuse is that there was excess demand for the ambulance; Smith can point out that it is the mandate of the health center to offer assistance. As such, they should have in place all the necessary facilities to ensure this occurs. In this case, if there were usually excess demand for the ambulance, the hospital should have acquired others earlier so that it maintains its efficiency. Vicarious liability refers to an obligation that is due to the relationship between two parties. An example is the liability of an employer for actions caused by their employees while carrying out their assigned duties. Likewise, any principal has the liability of their agents while they discharge their duties. Different hypotheses of obligation that are as a result carelessness incorporate the Respondeat Superior convention and the family car doctrine. The rule of respondeat prevalent (Latin for "let the expert answer") is focused around the employer- employee relationship. The convention makes the employer liable of employee’s actions in the absence of consideration from a third party to which the management owes obligations to perform certain actions (Andrews, 2011). For respondeat to apply, the representatives carelessness must happen within the scope of their occupation. The employer is accused of lawful obligation regarding the carelessness of the representative because the worker is considered to act as the employers agent. As such, when a representative acts within the general scope of their job performs a careless act, the employer will be held liable for any harm done. Another case of attributed carelessness is crediting risk to the owner of an automobile, where the driver of the car performs a careless act. This kind of relationship has been marked the family auto rulet. The teaching focuses around the condition that the head of the family unit gives a car for use by the family. In this case, the driver acts as the agent of the car owner. At the point when, for instance, a kid drives a car, registered to a guardian, for a family reason, the guardian is in charge of the careless acts that are caused by the youngster in the drivers seat. Risk falls on a car owner who gives it to another individual. Once more, the driver of the car is considered as the agent of the owner. In the event that the driver is harmed by the drivers carelessness and sues the owner, the owner can lose the claim because the carelessness of the driver might be blamed on the owner. The pedestrian cannot claim for vicarious liability from Top Tolling. Given the circumstances that the accident happened, the worker was not performing his assigned duties. The van was given to the employee to be used for business activities; however, there is the possibility that occasionally, the employee might use it for personal duties. In this case, watching the Liverpool match was a personal affair. Based on these facts, the pedestrian can only claim vicarious liability from Ben Peters. Sideline Ltd does not have any valid reasons to claim vicarious damages from Top Tolling. It is because Ben received express permission from Pardeep Singh. Given that, Ben is an engineer; his services are limited to a certain scope of engineering. As such, despite having the necessary qualifications, he might be used to deal with urgent matters. Frozone PLC is the company that supplied the climate control system at Sideline Ltd. According to their contractual agreements, they had a period of 24 hours to respond to any issue raised by their customers. Based on this, they had 24 hours to fix the issue. However, this led to some problems and because Ben had received express permission from his supervisor to help out with the issue, and then Top Tolling can be held liable for the incident at the plant and the losses incurred. Furthermore, Frozone can claim for vicarious liability by stating that Ben’s actions compromised their systems, and this led to malfunction. It can lead to other people avoiding the company products. This results in the company incurring loss. Bibliography Andrews, N.2011. Contract Law. Cambridge: Cambridge University Press. Read More