Are You in a Contractual Relationship with Your Sisters about the Fish - Assignment Example

Student’s name Institution Date Question 1 Are you in a contractual relationship with your sisters about the fish? Issue 1 Was there a contract? Law An arrangement involving the sale of a commodity is usually a sales contract.1 Authority The Sale of Goods Act 1895 (SA) Application Where there is an exchange of goods for monetary value, there is a contract created, one of sale of goods. The sisters supplied the fish for monetary consideration and therefore, contractual relations were established. Conclusion There was a contractual relation and therefore lies a remedy. Issue 2 Can there be a claim? Law In contracts for the sale of goods, there are implied terms that goods sold will be of good quality which would include its merchantability.2 Authority The Sale of Goods Act 1895 (SA) Burger King Corporation v Hungry Jack’s Pty Ltd3 Application The sisters were under an obligation to supply goods which were of good quality, merchantable. They would therefore have ensured that the fish supplied was of the required quality. The sisters are therefore liable for the breach of the implied term. Conclusion A claim lies as a result of breach of the implied term. Question 2 Can Fundi require the payment of $150? Issue 1 Was there an intention that I intention to create a contract? The law Contracts made in the social or domestic atmosphere are not intended to create legal relations. Contracts made in the commercial setup are presumed to have been intended to bind the parties. Authority Carlill v Carbolic Smoke Ball Co 4 Merritt v Merritt 5 Application Fundi in this case is an employee, the relationship can therefore under no circumstance be regarded as social. The level of interactive is that of a master and servant. This is therefore an agreement entered into the cause of day to day work of which, to some extent is of a business nature. I require services of which Fundi agrees to offer only after the mention of payment. There was therefore an intention to create a legal relation. Conclusion Fundi can claim the amount as there was an intention to be legally bound. Issue 2 Was there agreement Law Agreement in contract is depicted by the existence of an offer on one hand and acceptance on the other. The offer must be clear and which expresses an intention to enter into a contract. The offer must be communicated to the person intended to accept the offer. Carlill v Carbolic Smoke Ball Co. 6Acceptance on the other hand is governed by several rules. It must be communicated to the offeror. Felthouse v Bindley (1862). The acceptance must be by the specified mode; otherwise it would not amount to acceptance. Gilbert J McCaul (Aust) Pty Ltd v Pitt Club Ltd (1954). Authority As stated above Application The contract involved in this case is a simple contract. One which offer is made and accepted almost instantly. I made an offer to Fundi which he accepted after the promise to pay him some extra amount for the extra hour. The element of agreement was therefore fulfilled and a contract had therefore been created. Conclusion Fundi, since there was a contract in which an offer was made and accepted is entitled to the amount. Issue 3 Whether there was consideration. Law Consideration must be of some value. it can either be an act, refraining from doing a certain thing or something of value given to the other party. Chappell & Co Ltd v Nestlé Co Ltd (1960) Consideration must move from the promise. Dunlop Pneumatic Tyre Co Ltd v Selfridge Co Ltd7 Consideration must not be past. Roscorla v Thomas 8 It must not be an existing duty. Stilk v Myrick 9 Authority As stated above Application Fundi in the belief that a contract had been entered into, for which he was to offer his services later, buys shoes on the internet. He might have given any amount or offered his services but on the promise of payment, he incurs a cost which is consideration enough. He is therefore entitled to the amount as promised. Issue 4 Revocation by withdrawal Law An offer can only be revoced by withdrawl before acceptance. Dickinson v Dodds (1876) Application It is therefore clear that it was not possible to go back on the promise to pay Fundi the extra amount. He had already accepted the offer. Conclusion Fundi is entitled to the amount. Question 3 Issue 1 Does the owner of the restaurant owe a duty of care to Lua? Law In negligence, the employer owes a duty of care to the employee. For negligence to hold in a relationship between the employer and employee, the following three issues must be established. The employer the conduct at the moment the incidence happened could cause the plaintiff harm, that is, it was foreseeable. The plaintiff’s relationship with the defendant was a vulnerable one and that the defendant was having control. Thirdly, whether impact on social and moral values is fair. Being also an occupier of the premises, the duty of care may also be derived from occupier’s liability which in law one must prove that; The defendant has control over the property That he was negligent. Authority Donoghue v Stevenson 10 Hay v Young 11 Jaensch v Coffey12 Australian Safeway Stores Pty Ltd v Zaluzna13 Application In establishing whether there was duty of care owed to Lua, it is important to establish the relationship between the owner and the employer. Lua was is an employee and therefore falls in the category of established categories of duty of care. This without a doubt shows that the employer, having established the relationship as one of employer-employee, owes Lua a duty of care. It is however not clear whether as an employee, one can bring an action under occupiers liability against the employer. If such was to be persued, Lua would have a claim as he would be entitled to safety in the proceeding of his employment. Conclusion. A claim lies since the duty of care has been established. Issue 2 Whether the duty was breached Law The issues to consider here would include whether there would be a probability of harm being occasioned to the injure party. The test here is laid down in the case of Bolton v Stone 14 Another consideration is how serious the harm occasioned might be. The seriousness of the harm will be put to test as established in the case of Paris v Stepney Borough Council 15 Another issue up for consideration here would be whether there was necessary precaution taken to ensure that harm was not occasioned. Social utility of the activity in question: Waverley Council v Ferreira 16 Authority Bolton v Stone17 Paris v Stepney Borough Council 18 Roads and Traffic Authority of NSW v Dederer 19 Application As the owner, the question here is whether duty was actually breached. After establishing that the four aspects of breach were actually present, then there could be said to be a case. However, looking at the threshold, these seem not to have been met. It is true that the floor was wet as a result of an act which was not directly linked to the employer but that of another employee. As the employer, there would have been no way to give precaution to other employees over an act of another employee which he could not have foreseen. Unless the claim would be instituted vicariously such that the employer would be responsible for the actions of the employee, otherwise the action would fail. Conclusion Lua may not succeed in action of negligence as an employee claiming negligence of the employee unless he alleges vicarious liability or occupier’s liability. Issue 3 Was there damage or harm suffered as a result of the breach? Law The damage must have been caused directly or indirectly by the owner. In vicarious liability, the employer is liable for the actions of the employee if such an employee committed the act during working hours. Authority Cork v Kirby MacLean Ltd 20 Yates v Jones 21 Cassidy v Minister of Health 22 Application Although there was harm occasioned, it is clear that Lua cannot claim that the causation was directly linked to the employer’s actions. He cannot therefore bring an action since the incidence does not meet the threshold of negligence. The claim if brought forth under negligence would have a very slim chance of going through. Conclusion Lua can only claim vicarious liability since the action resulting to the harm was not directly linked to the employer but rather, to a fellow employee. He could also claim that as the owner of the restaurant, the employer is liable in occupier’s liability. Issue 4 Defences Law The law provides contributory negligence as a defence Authority Connors v Western Australian Government Railways Commission 23 Application if an action was to be brought under the tort of negligence, the owner could plead contributory negligence. Lua, while working was drunk and also appeared to be drowsy. Under such conditions, he might even have not been fit to work. It is therefore reasonable too that he might not have had the necessary stability as a result and would therefore trip and fall without much of a wet surface; the wet floor might only have contributed remotely to her fall. Reference The Sale of Goods Act 1895 (SA) Read More