The Duty of Care - Report Example

Commercial law Introduction As far this case is concerned, commercial law, similarly known as business law, is the form of law that applies to the rights, relations, and conduct of persons and businesses engaged in commerce, merchandising, trade, and sales. It is often considered to be a subdivision of civil law and deals with issues of both private law and public law. Business law incorporates inside its compass such titles as important and specialists; carriage via area and ocean; trader transportation; ensure; marine, flame, life, and mischance protection; bills of trade and organization. It can likewise be comprehended to direct corporate contracts, contracting practices, and the assembling and offers of shopper products. Numerous nations have received common codes that contain complete articulations of their business law. In the United States, business law is the region of both the United States Congress, under its energy to control interstate trade, and the states, under their police power. Endeavors have been made to make a bound together assortment of business law in the United States; the best of these endeavors has brought about the general appropriation of the Uniform Commercial Code, which has been embraced in every one of the 50 states with some alteration by state assemblies, the District of Columbia, and the U.S. regions. Different administrative plans control how trade is led, especially opposite workers and clients. Protection laws, security laws for instance occupational Safety and Health Act in the United States), and sustenance and medication laws are a few cases. Management Committee members have a duty to foresee that both the responsibilities of an organization and theirs are executed with due care. However, a situation may arise when the duties are breached either by individuals or by committee member’s failure to act. This breach may also extend to volunteers, staff, and other members of the entire organization. In either scenario, those at the management levels remain ultimately responsible for cushioning others against loses or damages emanating from the activities of the institution. In the case of the University of Sussex, they carry the burden as both the employers and prospective employers. There liability extends to their failure to adhere to the stipulated procedures and rules (Chessman 2009, 54). Where duty of care apply. The duty of care applies in various scenarios that include; a) Relationships pitting two parties especially under circumstances of relationships attached by trust. For example, between the students and the university under this circumstance b) Where there could have been consequences of some actions earlier foreseen. For instance, an organizations setting should offer counseling or advice to the public in general .This results from the anticipation that that service users or beneficiaries rely on the advice. Breach concerning duty of care applies to the care standard ought to be initially provided in a specific situation. This translates to negligence if an organization or an individual from there fails to perform as expected standards that should be applied. The management team for this reason has the mandate to see to it that organizations activities are at par with the set up standards inclined on respectable exercise. If in the instance an organization acts within the set standards, then they seize liability for negative consequences since that would be considered as part of risks involved. For instance, an organization such as the University has the sole responsibility to put in place procedures and policies that aims at protecting its students and ensuring that those working with them are adequately trained on that basis. Every activity carried out by individuals in that particular community should be under the guidelines of some restrictions to avoid excesess.To limit the chances of breaching the duty of care, it is significant that an institution uphold the duty to care and be fully aware the scenarios under which the breach is likely to occur. Risk management intervention measures must exist and the organization must constantly be alert incase of possibilities. Effect risks can then be reduced by constantly reviewing the existing strategies and updating them on time-to-time basis (Kenneth & Clarkson 2010, 36). At all times, the management team must always focus on the collective role they have to play both in their individual capacity and group capacity in line with caring for the organization and its asset. These also include upholding a particular organization’s ethical values and overall reputation. To achieve this, all must be constantly be updated by their far-reaching responsibilities since they remain the effective custodians of their organization and the entire assets found within that environment. They must always desist from the pressure of pursuing individual interests and the interests of other organization since they owe every allegiance to their own organization. However, there are various potential causes of liability emanating from the references of employment provisions. They include defamation, privacy invasion, retaliation, and finally negligent referral. Defamation entail communication that is harmful to the reputation of other people in the precept of lowering their integrity or dignity worth to the community. Either way, both punitive and compensatory damages are always likely to follow any claims of defamation. Punitive damages usually arise from the malice level intended towards the aggrieved party. Subsequently, privacy rights is one aspect that guides the relation between the University of Sussex and its former students. Clear guidelines must be stated basing on a particular decision was taken against the student or even a member of staff. This should be done with caution since every member of the organization has his own privacy rights that must be respected even if found to be on the wrong side of the institution laws. If at all other members of the institution have the interest of knowing why a disciplinary measure was taken against one of them, channels of communicating so must be within protecting his privacy (Emerson 2009, 23-24). Under retaliation, it is vital to note that a former employee have the legal right to claim for retaliation incase all have been subjected to illegal discrimination. This applies in instances where negative job references are involved. Similarly, the Institution may apply the negligent referral guideline against its potential staff. This mainly applies when the prospective staff fails to give correct information in relation to their true status. The same applies on whether the prospective employee or a former employee has the mandate to warn the organization of any harm to the previous institution if in any case hired by a potential employer (Wiley & Kowske 2012, 63). It is therefore important for both the employees and the employers to give keen attention to the plight of its members as both have duty of care towards one another. In the case of the University as an institution, former students as prospective staff to the university must recognize the aspect of adhering to stipulated procedures prior to their recruitment. Organizations in the same regard have got the legal duty to give out true information in relation to their former students in case the need arises (Miller & Frank 2008, 69). However, it is vital to note that privacy is key even when references are made and failure to do so is likely to make one liable. Liability under this instance can either be towards the employees of a particular organization or just the organization itself. In conclusion, institutions have the legal responsibility to be answerable to their actions as outlined in the various guidelines applied in running them. The guidelines that run the institution in most instances blend with the national laws an aspect that makes every member of the institution accountable for their actions. Duty of care is therefore a prerequisite to every organization and its employees. In this case, when two or more persons enter into agreement, there is creation of an obligation upon them to fulfill or not to fulfill the laid down specific duties in the agreement. This is a contract. The purchase of Super computer by Fred Jones from IBB makes the two parties binding to the contract. Though Jones signed acceptance invoice of the computer, he realized after sometime that the computer does not conform to his requirement. This result to breach of contract and some legal action may follow against IBB in court of law. In relation to the contract, I advise IBB to consider if the contract they entered with Fred Jones is enforceable by the court. This is vital because enforceable contracts contain elements of a valid contract. Such elements include agreement about all the terms of the contract, consideration, and mutual obligation, Writing requirement and the legality of the contract. After assessing all these elements, then IBB would be in position to know whether it is responsible for the breach of contract or not. Article 2 in the Uniform Commercial Contract states that all sales contracts must be in written form. IBB would also go forward to claim about the refusal of Fred Jones in their intention to fix the problems discovered in the computer. According to Article 2 of UCC, modification of existing contract is legal and it becomes effective without any additional consideration. In addition to this, the formation of any contract must present offer and acceptance, which facilitate the making of the contracts. When Fred Jones sued IBB for $50, it should consider that under the contract obligation, any valid contract has a rule that states about inclusion of price term. Article 2 of the UCC states that it is not always necessary to include a price term. With the patent violation of the University, IBB’S acknowledgement of the infringement is crucial. This is because IBB would negotiate a settlement with the University outside the court and obtain license from them if they agree. In case where the University would not agree and move to court, it is also a relief to them. This is due to the extensive evidence that the court requires in order to compensate patent holder. The important evidence that the University would use is the computer but Fred Jones offices caught fire and the computer is no more. If Fred Jones takes the matter to court, IBB should not decline because in specific cases of a breach of contract, remedy to the damage is not adequate. The court may direct IBB to fulfill the promise as they entered in the agreement with Fred Jones. When IBB used the XYX chips instead of 123 chips, the breach is not considered material term of the contract. The prevention of IBB by Fred Jones to fix the chips is not right as both the parties are supposed to perform their end obligations. This is in relation to Article 2 section 2-508 of UCC, which states, “if the seller initially delivers wrong goods, the seller may correct the mistake by delivering the right goods within the time frame set out in the contract” In sum, from the contract between the two people, it is important to perform according to the terms of the contract. This is because the rules governing the formation of a contract helps the both the parties to claim for any damage that they can incur. References Kenneth, W & Clarkson, F 2010, Business Law: Text and cases-Legal, Ethical, Global, and Corporate Environment, Cenage Learning, New York. Read More