What Is a Contract - Essay Example

1. a) For the purposes of the formation and termination of the contract, it is imperative to define the word contract so as to try to gain a clear understanding of the issues arising from the whole concept. Koffman L & McDonald E. (2007:1) define a contract as, “a legally enforceable agreement giving rise to obligations for parties involved.” Thus, this section will attempt to highlight the terms as well as frustration of a contract. (i) Whenever two different parties enter into a contract, there would be binding terms of the contract that would make them keep their obligation to meet the agreed terms and conditions. Simply put, if you promise that you will do something for another person and in return, that person agrees to pay you something, then you and that person have made a contract. A contract can be in verbal or written form but the most important thing is that there would be an agreement especially between two parties. Likewise, according to the labour laws of many countries, both the worker and the employee are bound by certain statutory regulations that would ensure that no party will breach the agreed contract. Indeed, when a person has decided to enter into an agreement with someone, both parties should have a common ground of understanding of the nature of the contract they would be agreeing upon so as to avoid conflict and misunderstanding in the future. (ii) When another party has frustrated the contract entered into between the two involved parties, it can be said that this other part would have failed to owner the obligations stated in the contract in the long run as a result of difficult conditions arising during the course of the contract. Thus, according to information obtained online, the issue of frustration here is about the subsequent impossibility of the contract which may be a result of an unforeseeable event to both parties. In most cases, this event would be beyond the control of both parties such as death. No mortal being is able to stop death hence this becomes impossible for both parties to stick to the contractual obligations since it would be difficult to press ahead especially in the absence of a key actor in such a scenario. (b) The case involving Harry and Ian can be attributed to frustration of contract which in this case can be summed up as a legal termination of a contract as a result of unforeseen circumstances which may prevent that particular contract to achieve the intended goals or objectives. Whilst Ian had agreed to buy a motor vehicle from Harry, it is unfortunate that his acceptance letter does not reach the intended destination on time to confirm his interest which prompted Harry to arrange the sell of that same vehicle to another person at a lower cost. Harry has made his intentions clear that he is selling a vehicle and his workmate has shown interest which needs to be authenticated in writing. However, Harry does not receive this confirmation on time and he assumes that Ian no longer has interest in buying the vehicle which prompts him to think otherwise. Indeed, Harry cannot keep on waiting for someone which may be a result of a problem that is unforeseeable since he will fail to get the wanted money in the event that Ian does not turn up. Where, there is no written, official communication, it can be tricky on the other part since he would fail to understand if the other party is still interested. 2. Inorder, to get a clear understanding of what the claimant would need to prove when he makes a claim under the tort of negligence, it is important to explain the meaning of the law. A tort law can be described as a civil wrong not arising from a contract and in the case of negligence, one should owe due consideration to one’s neighbour (Capiro Industries vs. Dickman 1990). Negligence therefore, can be described as the act of doing something a reasonable man would not do and a plaintiff must prove in such a case that the defendant owes a duty of care Donoghue V. Stevenson (1932). It is of paramount importance for the claimant to be able to prove that the negligent behaviour of the defendant would have caused an injury or loss in order to win the claim that the subsequent injury after the action of the defendant could have been avoided in the event that he would have acted within reasonable limits. The House of Lords in the case of Capiro Industries vs. Dickman (1990), proposed the adoption of the following conditions where the three stages should be taken into consideration which include; foreseeability, proximity as well as reasonability. In some cases it may not always follow that a duty of care exists but common sense ought to prevail to avoid an otherwise serious injury to another person. Some situations are foreseeable to any reasonable person before he or she embarks on a particular action that may be dangerous to another person. Due to the fact that a person may deliberately expose someone to danger leaves him liable to negligent behaviour where he is expected to have foreseen the imminent danger in the event that any mistake might seriously harm the claimant in this case. A good example can be drawn from an incident where one person jokingly points a knife at someone but accidentally stabs that person. Any reasonable person in this case could see that playing with sharp objects is always dangerous even if people would be joking at times. In the case of Donoghue V. Stevenson (1932) proximity is described as a situation where a neighbour is a person who is closely and directly affected by somebody’s actions and ought to reasonably take that fact into account. Simply put, the aspect of proximity loosely refers to closeness to somebody which should be taken into consideration to ensure that somebody’s actions should not infringe on another person’s right to enjoy his or her safety. In such a situation, every person is obliged to ensure that they do not harm the persons close to them by their unprecedented actions which can be harmful. As far as negligence is concerned, the element of proximity plays a crucial role as it would seek to establish the extent to which the claimant can prove and justify his wishes for a claim by arguing that the resultant injury to the next person would have been a result of negligent behaviour by a defendant within close range. However, there is need to establish the standard expectations of a reasonable man in order to establish if the claimant can claim his or her wishes. Indeed, it can be noted that it does not require great skill or vice versa to observe the negligent behaviour towards the duty of care and there are mainly two factors which ought to be considered. The likelihood and seriousness of risk of injury ought to be taken into consideration when attempting to measure the defendant’s behaviour against the risk he would have exposed the claimant to. There is also need for the claimant to show that he has suffered an injury as a result of the breach of duty care. Whilst in some cases a duty of care can be established and a breach of it as well, it may not be enough to prove a case of negligence unless some form of damage or injury can be identified. 3. In the event of the claimant acquiring a defective item of property, there can be principles of economic loss that can be experienced to either by the claimant or the supplier, or in some cases both of them depending on the contractual obligations on their contracts which would be legally binding in this particular case. In some cases, the contract would be silent on such unprecedented occasions such as loss or damage of property during the period it would be moved from the suppliers to the claimant who is the buyer in this particular case. In the event where the contract is silent about the loss or damage of property, the claimant would certainly lose since the supplier would just point to the effect that he is not responsible for any subsequent loss or damage of property during the transportation period which can be costly to innocent claimants who would be just expecting to get their items in good state. In such an event, the claimants would certainly lose their cases where the contract is silent about the losses or damages that can be accidentally encountered during the period where the property would be moved from point A to point B. However, in most cases, there is a legal obligation between the claimant and the supplier in most cases that would bind their agreement together such that no single party would deliberately breach or neglect the binding obligation which may result in unnecessary loss of property. In the event that the supplier is liable to any damages that can be encountered, the claimant would stand higher chances of winning such a case. Guarantee is provided especially on big property as a way of cushioning the customers from losses in the event that their items are lost or damaged before they receive them. Where the supplier is entitled to get compensation after the loss of property, the supplier would incur losses in the long run since he would be obliged to replace damaged property which would not generate revenue on their behalf. The consequences of replacing damaged property can be far reaching to suppliers in the long run as they would realise limited profits. 4. (i) In the building industry, it can be noted that the development of effective teamwork is often constrained by the traditional role of the team members. According to Robbins et al (2001), teamwork is where individuals participating collectively, work together towards the attainment of certain goals as well as objectives within a given organisation. Real learning which forms the basis of teamwork takes place in teams where team members learn from each other, learn from their achievements and mistakes, and continuously learn to optimise their efforts and contribution towards the achievement of organisational goals. From this assertion, it can be noted that the underlying principle towards the success of teamwork is sharing of ideas and the willingness to learn from other team members among the team. Noble as it may sound, the case in the building industry is often a bit different where effective teamwork is often hampered by certain factors. This can be attributed to the fact that the members of the team who ought to operate together are different by virtue of their skills as well as qualifications. In most cases, there are unskilled, semi-skilled as well as skilled workers operating in a single team. In such a situation, the effectiveness of teamwork would be constrained by the traditional roles of the team members and the tasks they would be supposed to perform. As the case may be, the members of a team in a construction industry ought to operate together regardless of their level of skill since the job which requires manual labour is often reserved for the unskilled workers while that which requires skill is for the skilled but these cannot operate independent of each other. Whilst the idea of team work is learning, the skilled workers would often look down upon the unskilled workers since they would claim that they are superior therefore can not learn anything from their subordinates which would dampen the spirit of togetherness and teamwork. In most cases, teams are comprised of members with similar qualifications and occupying almost similar positions which is not the case with building industries. (ii) The term project is used to describe a set of linked activities or it can be precisely defined as a one time activity with a well defined set of desired results (Hellriegel 2001). Some of the major features of a project include a definite start and finish, a time frame for completion, uniqueness as well as involvement of people on a temporary basis. For instance, the construction of a church building is a typical example of a project where resources would be allocated to meet the time frame of the expected completion of that particular project. In most cases, there would be limited resources such as people, time and money and there would be a sequence of activities and phases in the process of attempting to attain the set organisational goals. The role of the project manager is to identify key project activities, determine their sequence as well as determining who will be responsible for each activity. Since projects are earmarked to be accomplished in specific time frames, it would be very important for the project manager to have a clearly defined map of operation that ought to be adhered to inorder to achieve the goals without compromising on limited resources. The manager would also be responsible for estimating and calculating the time needed to accomplish each activity. More importantly, the project manager should oversee that different teams responsible for various activities are coordinating their efforts in order to achieve the goals of that particular project. 5. (i) Scientific management is also referred to as mechanist approach where the scientific management methods apply principles of mechanical engineering to design a job (Susan EJ & Randal S 2000). This involves the use of time and motion studies to determine the most efficient method to perform and sequence job tasks. There are pros and cons of scientific management to both the employer and the worker and this section would briefly look at these. (a) One major benefit of scientific management to the employer is that work is made easier and the tasks are easy to perform since they would be specialised tasks not requiring much effort and knowledge. The tasks are split into sub categories such that it would be easier for the workers to pick and perform a task which does not require great skill. However, one major drawback of this management system is that the tasks are often repeatedly performed over and over again which may result in monotony on behalf of the workers for doing routine jobs which do not allow them to exercise their right to use their brain at their work places which is dangerous as it may lead to disgruntlement as well as dissatisfaction. (b) On behalf of the employer, the major advantage is that of increased productivity since efficiency would have been aided by the introduction of modern technology as well introduction of job tasks. This would save the organisation in terms of cost since it would not employ too many people to perform the tasks that can be performed by comparatively few people. On the other hand, there is little training and the system would distinguish back work from brain work which would make it relatively easier for the management to follow and monitor the tasks being performed by various groups within the organisation. However, the major disadvantage to the employer is that this requires huge capital injection in the form of investment that can sustain operations of such magnitude where the management system would be mechanised to improve efficiency in both productivity and training. The costs may be higher to offset the demands of the new system. (ii) There are various advantages as well as disadvantages of ‘tall’ as well as ‘flat’ organisational structures. A tall organisational structure can be regarded as the one with centralised features where most of the management as well as decision making functions are vested in the hands of a limited few decision makers at the top of the hierarchy. The main advantage of this structure would be that the process of decision making would be very effective and timely in response since there would be limited obstacles that may hamper decision making such as bureaucratic structures. It would also be easier for decision makers to implement changes in response to the market structure compared to the organisations with flat structures. One notable disadvantage is that of decision makers being subjective in passing their decisions since their authority would not be greatly challenged within such an organisational structure. They would have too much power vested in them which may affect the operations of the organisation. On the other hand, an organisation with a flat structure has the advantage where different tasks are decentralised and are performed by various departments. This would reduce the burden of putting much responsibility on the shoulders of a selected few people. Different segments would be tasked to perform different tasks which would improve efficiency of the operation of that organisation. However, a disadvantage that can be encountered is that of the emergency of bureaucratic structures where other people entrusted with making decisions would tend to sit on their jobs and fail to deliver on their role expectation. This would be one major notable disadvantage of an organisation with a flat structure. 6 (i) This section would attempt to construct a precedence network which would give a detailed outline of all the steps that would take precedence before the actual construction has begun. Basically, a precedence diagram network is a graphical presentation of the stages involved in a project and is usually in a form of descending order from the top as shown on the diagram below for a construction of a building. Usually construction of a building is not an overnight event but a process which goes stage by stage as illustrated in the diagram below. Some stages can go concurrently whereby work on the other task will not affect the other as shown at the top of the hierarchy in the diagram below. (ii) If all the work goes according to schedule, the completion of this project would take between four and six months depending on the availability of the resources such as money, labour as well as building materials. Assuming that everything is readily available, construction would begin at a slow pace since the early stages of construction cannot be fast tracked. For instance, it would require the concrete anything between seven and fourteen days to set before the construction of the wall is begun. Consideration also have to be taken where some companies do not operate during the weekends hence the need to give a large time frame earmarked for the completion though it may take a shorter period. There are stages which should always be observed where construction is slowed to allow those stages to set as a way of avoiding crooked walls that would not comply with the actual plan. Even after the completion of the walls and roof, plastering would also come in so other stages like painting would have to wait until the plastering has set so as to minimise the chances of cracks or peeling off of the paint on the wall which would give a bad image of the finished building. (iii) Basically, the critical activities involve the foundation stage where the footing will be put then followed by the construction of foundation wall. The slab is another equally very important phase since the building will be erected on this structure. Equally important activity involves monitoring the whole construction process to see if there are no cracks especially during the early stages. Any mistake during this phase may affect the whole structure hence the need to take all the necessary precautions along the way. The construction process should go stage by stage which would be inspected by a registered inspector from the local authority’s housing department. Even if the resources are in abundance to such an extent that the brickwork can be finished in one day, still it is not advisable since they would need to be given ample time to set before proceeding to the next stage. The roof is another very important stage of the building process since it would determine if the plan has been properly followed. A roof which does not perfectly match the plan would mean that the whole thing has been badly done. References Hellriegel et al (2001), Management, Oxford Robbins S.P. (2001), Organisational Behaviour, Pearson Education Susan EJ & Randal S (2000), Managing Human Resources: A Partnership Perspective, South Western College Publishing. Negligence UK (2007) Retrieved on 12 April 2009 From: http://en.jurispedia.org/index.php/Negligence_(uk) Donoghue v. Stevenson [1932] All ER Rep 1; [1932] AC 562; House of Lords Retrieved on 12 August. 09 From: http://www.safetyphoto.co.uk/subsite/case%20abcd/donoghue_v_Stevenson.htm Koffman L & McDonald E. (2007), The Law of Contract, 6th Edition, Oxford University Press, Retrieved on 11 August 2009, from: http://books.google.co.za/books?id=8JtwkQrAC_kC Consumer law: What is a contract? 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