Contractual Relationship between Malcolm and Georgia - Case Study Example

Running Head: Terms of a contract Name Course Lecturer Date Terms of contract A contract is legal agreement that is entered by two parties in mutual consent. The involved parties may be familiar to each other or strangers. Nevertheless, the relationship which is governed and formed by the contract builds clear relationship among the parties. In the contract there are terms in which the parties agree to fulfill otherwise dishonoring the terms is a breach of the contract. Clarity of understanding is needed in the contract signing event since any failure to honor the terms litigiously questionable (Allan & Overy, 2013). This paper is just an endeavor to examine the terms of a contract in detail with a reference case between two parties, namely; Malcolm and Georgia. An analysis of their case will be given as per what was agreed and if any of the two violated the contractual terms. Finally, a position will be given as advice to Malcolm as to whether he is or is not justified to take any legal action against Georgia. In contractual relationship, terms of contract determines the nature of obligation. Parties by agreeing to sign a contract, accept the obligation results. In our case, Malcolm by signing the contract accepted the resulting obligation even though he never had time to keenly read terms of the contract(Allan and Over, 2011). By doing so Malcolm entered into a contract with Georgia and accepted the terms and conditions of contract with mutual consent. Even though, Malcolm never had time to read terms of contract once he signed it become binding. Moreover, Malcolm is obliged to pay Georgia $700 for taking care of his pets by entering into contract with Georgia with mutual consent. On the other side, Georgia presented offer to Malcolm with intention of entering into a binding agreement once Malcolm accepting it. Georgia is then obliged to fulfill her offer to Malcolm according to terms of contract. In the contract, there was a clause that exempted Georgia liability for tropical fish death due to its vulnerability. This meant that, Malcolm by signing the contract with mutual consent accepted that Georgia was not to be held responsible for his tropical fish death due to its vulnerability. However, that does not mean there is lack of freedom of contract as argued by Shine (2008). In some cases, Unfair Contract Terms Act 1977 may be used to provide restricting statute on contractual terms. Parties who intend to make the contract binding, base contractual obligation on mutual consent with an intention of forming legal relations between them. For instance, Georgia and Malcolm intended to form legal relations basing their contractual obligation on mutual consent what made their contract to be binding. Georgia offers her willingness to take care of Malcolm pets and contract is signed after Malcolm consent. Georgia forms a legal relation with Malcolm in order to take care of his pets when Malcolm is away. Georgia fails to fulfill the terms of contract by feeding Fish the food of Rabbit and Rabbit the food of Fish which resulted to death of Fish and Rabbit lose of fur totally. In the contract offer, Georgia indicated that she is a professional and experience pet caretaker. Malcolm seems to have been convinced by Georgia’s expertise in home pets in signing the contract without keenly going through it. In this case, Georgia is obliged by the contract to take responsibility of such damage based on contractual obligation which was freely signed with mutual consent. Furthermore, Malcolm he is justified to breach the contract with Georgia because Georgia was not able to fulfill her contractual obligation entered with mutual consent. Offer is a willing gesture to enter into specific terms of contract with an intention of binding the addressed person once accepted. Binding contract must show the offerer intend to accept to be bound by the offer once the other party accepts. Georgia as offerer gives Malcolm an offer of taking care of his pet professionally. Acceptance is another key element in contract terms whereby offer must be accepted by the recipient according to precise terms of agreement (Heritage, 2013). While Malcolm was justified to sign the agreement in order to allow Mrs. Georgia to take care of the rabbit and fish, Georgia is also right to claim right of fulfilling his role in what both had agreed. According to the agreement, any harm to the fish or the rabbit was not going to be placed on Georgia as it was stated very well that she was not going to be liable in any way. Traditionally, contractual agreement is analyzed in terms of an offer as well as acceptance. One party, that is, the offerer, originates an offer which after being accepted by another party known as the offeree, brings in a contract that is binding. Giving of the offer means that the offerer is for the intention of being bound into the contractual terms, which Georgia did as Shine (2005) observes. The same is for Malcolm who signed the contract. Malcolm on the other hand has a number of issues that he can raise against Georgia. First of all, Georgia was hired as a person who is experienced in taking care of fish and rabbits. However, she did not take care of the fish: she gave them food for the rabbit and that of the fish she gave to the rabbit resulting in the death of the fish and loss of fur by the rabbit respectively. This is in se neglect that led to the damage (Dalton, 2010). As such, Georgia agreed to fulfill her services but eventually failed to ensure any is realized. This justifies Mr. Malcolm taking legal action against her for the damages. A second issue that Malcolm can raise against Georgia is that the fish did not die of tropical conditions as stated in the letter of contract but because of consumption of wrong food. This outcome was a breach and could not be contemplated by Malcolm as a probable result of the course of the contract. Due to this, Georgia is liable of being the source of the losses that Malcolm incurred and thus legal action is again justified. Apart from Georgia being negligent of her duties, it is not stated that she suffered from any grave condition that could have hindered her from making informed decisions such as impairment of memory or dementia (Dalton, 2010). Bearing this in mind, it is impossible to excuse her from being negligent and acting intentionally to see the unpleasant results that befell the animals and the consequent losses that Malcolm incurred. Georgia is thus to be held culpable of breaching of contract by destroying Malcolm’s property. Malcolm’s stoppage of the bank from paying Georgia can be justified. The original offer was that Georgia takes care of the property. She kept on repeating the same mistake of giving the wrong food to the fish and the rabbit which could not be confused with a one day error or mistake. Owing to this fact, Malcolm was justified to give a counteroffer to nullify the original offer which had been forfeited and executed contrary to the original agreement of the contract (Zarrokh, 2008). Georgia on the other hand was directly entitled to her dues as per the contractual agreement which stated that she was not going to be responsible for the death of the fish. From this point of view, she could clearly state that under the agreement, there was no indication that she should pay for such losses (Estreicher & Hirsch, 2013). Actually, Malcolm failing to pay her would be breaching of the contractual agreement. Furthermore, it is not likely for a person of sound mind on top of experience to confuse the food for rabbits with that of fish. Even though it is not said in the case, the confusion of giving wrong food to the rabbit and the fish could be originating from Malcolm himself. As such, Georgia may have just been confused by Malcolm’s wrong labeling of the fish and rabbit food thus not being liable to anything that could warrant his breach of the contract. In conclusion then, both parties bear negligence liability to the damage occurred. On side of Malcolm negligence was based on his lack to take time to read the terms of contract he was about to sign. If he read the form of contract he would have noticed that clause that exempted Georgia from taking full responsibility of his Fish death. On the side of Georgia, negligence was based on foresee-ability of some harm that could have resulted from her duty of care. This principle would hold Georgia responsible if it is reasonably established that there was foresee-ability of damage. Foresee-ability of negligence principle is tested in relation to remoteness and duty of care. After the negligence has been identified, remedies and their aims are to be considered. The intention is to place claimant in the position he/she willed to be if the tort had not been committed. For our case, if tort had not been committed Malcolm would have presented his Rabbit in show hoping to win $ 10,000 prize. Therefore, Georgia may be responsible for that damage but the payable damage may be reduced by claimants conduct. Georgia in her partial defense of contributory negligence may argue that the cause of damage was not entirely on her side. References Allen & Overy, (2011), basic principles of English contract law, advocates for international development, Dalton, J., (2010), breach of contract or negligence claim? The gist of the action doctrine. Unruh Turner Burke &Frees,> Estreicher, S., & Hirsch, J. (2013), Comparative Wrongful Dismissal Law: Reassessing American Exceptionalism, North Carolina Law Review, Forthcoming. Heritage, C. (2013). Canada–Alberta Agreement on French-Language Services 2009-10–2010-11. Shine, D., (2005), contractual applications of negligence/gross negligence standards: considerations under New York law. The M & A lawyer, New York. Zarrokh E., (2008), practical concepts in contract law. Munich personal repec archive. Read More