The Unfair Contract Terms Act 1977 - Assignment Example

The Unfair Contract Terms Act 1977 English Legal System Many are times when one of the parties to contract does not fully commit themselves to the ultimate execution of the contract, prompting the other party to do away with it. In essence, such a contract becomes voidable. Moreover, the failure by one of the parties to the execution of a contact breaches it. In this regards, any contract, whose terms have been infringed by either of the parties, is eligible for legal settlement. Thus, courts are mandated to settle contract disputes. In so doing, the court may impose various remedies. Such remedies include but are not inclined to cancelling the contact, specific performance, punishments, as well as damages of various forms. The Unfair Contract Terms Act 1977 occurred on 1 February 1978, influencing contracts made after that date. It is partitioned into 3 portions. The first portion applies to England and Wales, portion 2 applies to Scotland and Part III to the UK in general. Part II is not recognized here. The name of the Act, the Uncalled for Contract Terms Act 1977, might be viewed as misdirecting. It doesnt manage unjustifiable terms as being what is indicated and the Unfair Terms in Consumer Contracts Regulations 1999 are considerably all the more appropriately named (Lurkenhus, 2000). The Unfair Contract Terms Act 1977 is fundamentally concerned with terms which avoid or confine obligation and, by and large, it is such provisos that it is expressed to blanket. There is additionally a few express scopes of indemnities and, whats more, there are a few circumstances in which a repayment will be dealt with as a provision avoiding or confining obligation along these lines inside the extent of other, all the more colossal, procurements of the Act. The Act likewise stretches out its scope to non-contractual notices avoiding or limiting obligation for negligence and, once more, the reference to prohibitions or confinements of risk is to be barely comprehended and can additionally blanket notices identifying with the commitment or duty. The Unfair Contract Terms Act 1977 influences terms or notices falling inside its degree in one of two ways. In a few cases they are rendered consequently insufficient. In others they are insufficient aside from in so far as it might be secured that they fulfill the prerequisite of sensibility. The fundamental circumstances in which the Act may be applicable are: Cases including carelessness. Contracts in which one gathering arrangements as buyer or on the others composed standard terms of business (Lurkenhus, 2000). The segments demonstrated here can approximately be portrayed as the "dynamic" areas of the Act. These are the segments which regulate that something is to occur, for instance, either rendering it naturally incapable or abandoning it compelling just in so far as it is proved to fulfill the prerequisite of sensibility. Whether a term or notice is consequently inadequate or subject to the necessity of sensibility relies on the impact of the specific segment being referred to. There are additional confinements on the fundamental circumstances in which the Unfair Contract Terms Act 1977 may be significant. It is for the most part just applicable to business liability the constrained exemption fundamentally being cases secured by s 6. In School 1 there are additionally records of agreement which, in entire or to a limited extent, are put outside the extent of a few segments. Furthermore, there are ousters from the scope of the Act of global supply contracts contracts just falling inside the extent of English law in light of the decision of the parties, and certain terms which are approved or needed by statute or conform to an universal consent to which the UK is a party (Lurkenhus, 2000). There are procurements, which manage endeavors to avoid the provision of the Unfair Contract Terms Act 1977 in different ways. Area 10 arrangements with endeavored avoidance by method for a brief moment contract, s 13 with terms or recognizes as a component of the meaning of the commitment, as opposed to the type of avoidances or confinements of liability[15] and s 3(2)(b) is additionally applicable in connection to that problem[16]. Endeavors to sidestep the Act by method for a decision of an alternate lawful framework are secured by s 27. This part will, first and foremost, take a gander at the procurements managing the fundamental extent of the Unfair Contract Terms Act 1977 – the limitation to business obligation, the ouster of certain agreement terms from its degree, and the essential confinement of its impact to terms or notices which avoid or limit risk. It will then think about the dynamic areas some time recently, at long last, tending to the inquiries of when somebody bargains as shopper and the test encapsulated in the prerequisite of sensibility (Lurkenhus, 2000). Be that as it may, before in-profundity thought of the Unfair Contract Terms Act 1977 is left upon, one further preparatory matter ought to be managed: a presentation of the Law Commissions proposals for bound together uncalled for terms enactment to swap both the Unfair Contract Terms Act 1977 and the Unfair Terms in Consumer Contracts Regulations 1999 (with Scotland essentially being liable to the same administration). In the first place, the recommendations might keep up the controls on endeavors to avoid or limit business obligation for carelessness, whether through an agreement term or a non-contractual notice, and there might be some expanded policing of such endeavors in the shopper context. In the buyer setting, the expansive controls over out of line terms in shopper contracts right now gave by the Unfair Terms in Consumer Contracts Regulations 1999 might be kept up and stretched out as, in connection to distinctive question, they might never again be confined to non-independently arranged terms (Nebbia, 2007). The decency test might be supplanted by a test of whether the term is reasonable and sensible. Moreover, those terms, which are as of now naturally incapable under the Unfair Contract Terms Act 1977, might remain so. Thirdly, in the business setting, the Unfair Contract Terms Act 1977 controls upon exception provisions would fundamentally be kept up, despite the fact that they would to a great extent get confined to standard terms. There might, on the other hand, be amplified insurance for little organizations. In that setting, controls might be stretched out past exception provisions to reflect a significant part of the broadness of control of customer contracts, aside from that in connection to little organizations the controls might be limited to terms presented as a component of the other gatherings standard terms which had not been arranged. (It is not conceived that the preventive level of policing presently gave beneath the Unfair Terms in Consumer Contracts Regulations 1999 in the headquarters of Fair Trading and the eligible bodies might be stretched out into the little business setting. Requirement is seen as staying at the level of the singular contract (Nebbia, 2007). 2. Health and safety Occupational health involves the protection of the human health by controlling the work environment. This environment is sometimes polluted and must be kept safe for productivity and health of the workers. Enactment of the laws that govern the occupational health and safety went through a long process of finding full support from the government and the employees. The enactment of the Occupational Safety and Health Act (OSHAct) of 1970 brought about the light of health and safety of the workers. In addition to OSHA, National Institute for Occupational Safety and Health was created (NIOSH). NIOSH carried out research to find that occupational health programs are helpful to employees, the employer, the dependents of the employee and the community. Issues Surrounding the Need for Occupational Health and Safety Occupational health involves the protection of the human health by controlling the work environment. Workplace is one of the places that people spend most of the time in their lifetime apart from home. This place must thus be free of chemical, physical, and biological agents of diseases (Angle, 2004). Biohazards include living organisms classified in groups of viruses, bacteria, fungi and parasites. Chemical toxins are usually found in gases, dust, smoke, fumes and aerosols (Reese, 2003). Radiation, noise pollution, and extreme temperatures can constitute the physical hazards. A conducive environment can be provided by providing a variety of specialists including nurses, physicians, industrial hygienists, safety engineers and health educators (Angle, 2004). The above safety measures can only be brought about by enactment of laws like the Occupational Safety and Health Act (OSHAct) of 1970. Before this act was put into place, it was hard for workers to protect themselves against all pollutions and health related discriminations. State agencies used to lead the regulation of health and safety matters. This led to little or no uniformity of application of standards and codes available from one state to the other. Sometimes, there were no enforcement proceedings against a violator of any of the standards that were available to be put in place. Workers were seriously discriminated by some of the states. For example, some states spend as little as $2.70 per worker while others spend an unbelievable amount of less than a cent on a worker (Reese, 2003). The contractors of the federal government had only been granted limited safety and health standards. Then, it was seen that not all kinds of work required its own occupational health and safety standards. Most programs focused occupations such as railroad workers, federally contracted construction workers, longshoremen and miners. The bureau of Labor Standards in the department of Labor of the United states was the enforcer of the federal safety and laws regarding health. Insufficient staff and inadequate funding made the inspection and enforcement process extremely limited and only to a few individuals. All this made it difficult to implement the Occupational health and safety (Reese, 2003). OSHAct came as a savior by trying to move focus on the prevention of the effects of the environment than treatment. In addition to OSHA, National Institute for Occupational Safety and Health was created (NIOSH). NIOSH carried out research to find that occupational health programs are helpful to employees, the employer, the dependents of the employee and the community. On the employee and his dependents, occupational health programs facilitate low personal health care costs, sustained earnings and increased productivity. In the community, these programs help to reduce welfare costs and increase prosperity (Angle, 2004). Community nurses work closely with the families and communities in assessing the nature of the medical heath in the communities. Their main role is the assessment of the heath needs of the members of the communities. They assess the number of injuries, ailments, and disabilities found in each household. They also identify the risk factors facing the community. They also assess the nature of health status of the community. The information that the community nurses provide is then used by planners to come up with policies regarding the health of the members of the community (Reese, 2003). In conclusion, it is important that health care providers implement further training of nurses and doctors in form of seminars and conferences to address this issue will limit these medication errors. Extra government funding to modernize medical equipment as technological advancement will limit mistakes. The patients and their families should be attentive and alert in following up the treatment procedures to the latter, for instance, checking the medicine labels. The contract A contract delineates an agreement between two or more parties, which is enforceable by the law. Thus, a substantial number of contracts are guided based on common law. Conversely, the UCC’s article 2 governs contracts involving sale of goods, negotiable instruments, and secured transactions. Incidentally, there are two types of contacts: written and oral. Nevertheless, more than often, a contract has to be in written form, for it to be legally enforced. Furthermore, it is expected that the parties subscribed to it should fulfill all the terms and conditions of a contract. If this happens, it implies that the contact is executed. A contract is an agreement between two or more parties entered with the intention of creating a legal obligation. There are certain elements that must be present for there to exist a legally binding contract. At common law, these elements include offer, acceptance, intention to create legal relations and consideration. As a vital prerequisite of a contract, there must be an offer and acceptance to the offer by the party to whom the offer is made. Absence of an offer and acceptance implicates the absence of consensus ad idem, which is essential for any contract formation (Goode, 2010). This implies that the parties to contract must have a mutual understanding of what the contact entails. An offer is a statement or any other indication that a party is prepared to enter into a contract with another party on some specified terms. Goode (2010) delineates it is an expression of willingness to contract on certain terms made with the intention that it shall become binding as soon as it accepted by the person to whom it is addressed. Expression may take various forms provided that it communicates the basis on which the party giving the offer is prepared to contract. An offer is not an invitation to treat. An invitation to treat is an indication of a party’s willingness to negotiate a contract. Consequently, no agreement is created in case of acceptance of an invitation to treat. On the contrary, an offer becomes legally binding once it has been accepted. An offer has to be made to a specified party. This could be a specific person, a class of people or even the whole world at large. If the other party accepts an offer by one party, then a contract is formed. Acceptance refers to some indication by the offeree that the offer is accepted. It occurs when the party to whom the offer was intended agrees to the offer either by statement or by act. Acceptance should be clear, absolute, and devoid of any conditions attached. A person is not deemed to have accepted an offer merely by not expressly rejecting the offer. In most offers however, it can be accepted within a stipulated period. An expired offer cannot therefore be accepted unless the offer or renews it. In some circumstances, no time limit within which the offer has to be accepted is specified. In such cases, the offer is deemed open for acceptance within a reasonable period. An offer can terminate on various grounds. For instance, an offer could terminate if the offeree rejects its terms. Also, some offers have a condition which specifies the exact duration within which the offer is available. Such an offer may terminate if the offeree fails to accept it within that duration. Death or incapacity of the offeree and/or the offeror terminates an offer too. Apparently, in case an offer is rejected by the offeree, it is destroyed and can never be accepted at a future time. Consideration refers to the price paid for a promise of the other party (Larson, 2003). Thus, one party promises to do something in return for a promise by the other party to provide a benefit of certain values. The consideration must be something of value. It does not necessarily have to be money. The court cannot question the adequacy of a consideration as long as it is of some value. However, it has to be legal and possible to perform. Intention to create legal relations refers to an agreement by the parties in contract to enter into a legally binding contract. A mere agreement between two or more parties is not equivalent to a contract. The parties must intend to create a legal relation subjecting the agreement to legal enforcement. Bibliography Carter, J., & Gifford, D. (1984). Breach of contract. London: Law Book. Frey, M., & Hurley, P. (2001). Essentials of contract law. New York, NY: Cengage Learning. Gillies, P. (1988). Concise contract law. New York: Federation Press. Hugh, C. (2003). The law of contract. Cambridge: Cambridge University Press. Nebbia, P. (2007). Unfair Contract Terms in European Law: A Study in Comparative and EC Law. London: Hart Publishing. Lurkenhus, A. (2000). Unfair Contract Terms Act 1977 und AGB-Gesetz 1976. Manchester: Peter Lang Pub. Orford, C. (2005). Contract Terms and Conditions for The Small Business. Oxford: Oxford University Press. Read More