HND BUSAYO ASPECTS OF CONTRACT : Toop v London Country Bus
Every contract is required to be stated in a way that contains the basic requirements of formation of a contract. Such requirements are to be studied under the present assignment to determine the differences in different types of contract with the help of types of terms. The breach under contract as well as tort is required to be analysed in order to provide the distinguished nature of two liabilities. The liability under tort is of different types such as the negligence and vicarious arising from the duty of care that has to be explained herein under.
Contracts are considered to be a thought through process between two or more people to come together for a specific purpose. Such a purpose is governed by five elements that are to be present under a standard form. The presence of these elements ensures the validity and legality under the regular course of law. Such elements of the contract would be related to the beginning of the contract, conduct throughout and concluding the contract. The factors so involved for the formation and conclusion of the contract are such as offer, acceptance, consideration, intent and capacity. All the elements of the contract have been determined as follows:
- When one party initiates the conversation regarding the contract by stating the terms of the contract, such a statement is regarded as the offer. The offer should move from either party that would be regarded as the offeror. The party being presented by the offer is regarded as the offeree. The offer so made should be clear in the meaning and should be express for the offeree to interpret as it is intended to be represented. The offer should be simple and easy to understand. The offeror should ensure that the offer contains the basic elements that a valid offer should contain for the type of contract being entered into.(Giliker, 2010) The offer is different from an invitation to offer. An offer contains all the elements of the contract that would be undertaken whereas the invitation to offer represents the openness to the offer that may be made by the interested parties. The invitation offer leads to an offer in certain cases. The offer so made may or may not be accepted completely. The entire offer may be accepted with certain addition of the terms. It would be regarded as a counter offer. The counter offer is regarded as the new offer eliminating the previous offer. The counter offer is thereby required to be either accepted or rejected. Until the final offer so made is accepted or rejected the offer may not be concluded. (Collins, 2008)
- An offer may either be accepted or rejected by the offeree. The offer may be rejected thereby not creating a contract. However, if the offer is accepted a contract is said to have been created. The contract requires the offeree to make a valid acceptance in order for the contract to conclude. The acceptance just like the offer shall be clear to understand and simple in language to express the clear intent. The acceptance shall be made within the given time period. The acceptance should be made through an acceptable means of communication under the contract and so timely. Under the type of contract that has been offered to the world it is important to realise that he acceptance is waived off by considering the performance of the contract as an acceptance. Thereby, the acceptance under such contracts is when the offeree performs an act as discussed under the offer. The most common means of acceptance is that of the written, oral or post.
- Whereby the contract is being entered into by the parties the intent to enter into the contract should be clear and common between the parties. The contract should be entered into by the parties having the same purpose and intent to form the same. The intent of the contract is an important element because it helps in determining the enforceability of the contract under the law. It is assumed that the contract of commercial nature are intended to be legally bound as the same are entered into by the parties for no other purpose but the contract. However, the contract of social nature is presumed to be entered into by the parties for the purpose of mutual benefit that should not be legally bound. Therefore, if the social contracts are to be bound by such laws the same shall be mentioned under the contract. (Meyer, 2010)
- The contracts so entered into by the parties shall involve the transaction of a consideration. This is so because the involvement of consideration ensures that the contract is valid in formation. The consideration refers to the amount so exchanged between the parties for the performance of the contract. The parties so suffering from the loss are restored in value from the transaction so undertaken in a contract thereby making it a valid under the law. If the consideration is missing from a contract it is said that the relationship between the parties is merely a promise. Such considerations shall be of certain types such as not of past and sufficient. The consideration shall not be deriving from the existing duty of social or contractual nature and be quantified. (Nel, 2004)
- The parties to the contract should be a valid party in terms of capacity of the same. The capacity of the parties should be determined based on the capability to understand and interpret the contract as presented. The capacity of the parties is drawn based on the legal age, mental ability, financial status. If the parties are not of the mental ability, minor or bankrupt then such parties are considered ineligible to enter into the contract and the contracts so entered by them would be void. It is also important to know that the parties were of capacity at the time the contract was entered into. The capacity of the parties is excused if either of the party is a minor when agreed by the contracting party. The contracts entered into by minors for the purpose of necessities would also be considered valid.
- The contracts once entered into, may or may not be completely carried out by the parties. The contracts if not carried out by the parties would be termed as breached. Thereby, the breach so committed may adversely affect the damaged party’s position under a contract. The damages so occurred under the contract should be claimed fro from the damaging party. The damages may only be recovered from the party to the contract. Thereby, such a relationship may be termed as a privity to contract. This would imply that no third party may be able to claim for the damages so committed by the damaging party. (Pratt, 2000)
- The contracts may be of different kinds that may exist between two or more parties. Such contracts may of following types:
- A contract may be entered into by the parties in the presence of each other. Such contract are to be made between the parties through a conversation wherein the entire contract terms are discussed verbally and countered in the conversation as well. The acceptance so made shall be within the same conversation or at a time later so agreed to between the parties. The offer and acceptance shall be clear in order to avoid confusion at a later time. The performance of the contract or oral nature are not completely certain since there is no written agreement binding them in reality to perform. A conversation may not always be taken seriously by the parties and the same cannot be presented under the court to enforce the same. The oral contracts are to be ensured that are performed by the parties involved. If not performed the breach of the contract is difficult to be established. (Richards, 2006)
- The contracts that are entered into either in presence or absence but through signatures for the written terms are known to be written contract. Such contracts are even discussed orally but terms of the contract are presented in writing that are agreed to by authorising same with signatures. The written terms are common between the parties and may not be difficult to establish. The breach of written contracts is easily remedied for being available in writing it can be established under the law. Thereby, enforceability of the same is undisputed.
- Some contracts may or may not be signed in the presence of each other. Such contracts that do not involve the physical presence at all and are entered into from a distance so significant are known to be the distance selling contracts. Such contracts are regulated by the distance selling regulations. The distance selling contracts contain the offer and acceptance from a distance. The terms of the contract are agreed to through a written document. The supplier should ensure that the delivery detailssuch as the quantity, tax details, mode of payment, amount of goods sold and such other. As these contracts are more or less entered into by the parties in the written form the same are easier to be established under the law. (Vettori, 2007)
The contract is prepared with the purpose of containing different aspects that may be enforced under the law. The contracts of all types shall have the following types of terms:
- A contract is based on a certain element that is required to be performed. This is because it forms the basis for the same and it essential to a contract’s performance. Such a term that has to be performed in order to perform the contract is regarded as a condition. A condition is primary in nature and important for a contract. Such conditions may be either performed at different stages such as precedent, subsequent and concurrent. The condition when not performed would lead to non-fulfilment of the contract. The conditions are directly related to the purpose of the contract and thereby have such an effect in case of non-performance.
- A term that supports the condition is said to be the warranty of the contract. Such terms are considered to be secondary in nature for the contract. The warranties are important to the performance of the contract but the indirectly related to the purpose of the contract. Thereby, the contract are not breached in case of breach of warranty. This would mean that the warranty may be breached and recovered while the contract is still being performed. The warranties when breached may be claimed for through the injunction, specific performance and damages. The warranties may be of different types such as the lifetime warranty, specific warranty, replacement warranty and such other. (Collins, 2008)
- Sometimes the contract terms are difficult to be categorised as a standard condition or a warranty. This is because such terms have different impact under different types of situations. Therefore, such terms are considered to be innominate terms. The effect and impact of such terms is decided to be depending on the different situations. Therefore, these terms are neither condition nor warranty.
- Certain terms are clearly determined under the contract and are present in writing. Such terms are known as the express terms. Express terms are said to be clear in meaning and common in intent for the parties to the contract. These terms are easily understood and certain in purpose. Thereby, the meaning and intent is easily established from such terms.
- Some terms are no clearly determined under the contract or discussed but are applicable to the performance of the contract. These terms are said to be implied terms since they are implied in nature. Implied terms may arise from the custom, law or previous contracts entered into by the parties. The implied terms are applied to the contract because these terms are standard to certain type of contracts and have to be included even if the same are not mentioned under the contract. Therefore, performance of the implied terms is as important as that of the express terms.
- Exclusion terms are said to be terms that focus on eliminating the extent of liability to be paid by the damaging party. Such a limitation is posed in case of breach so occurring under the performance of the contract. The exclusion is that of the liability that may be completely or partially provided for. The breach of any such term shall be related to the purpose of the contract for which it had been entered into. It shall be noted that terms of limiting the liability in case of death or injury are invalid and cannot be applied under the law. It is important that the same are included through notice, previous contracts, or signatures.(Giliker, 2010)
Case A: Carbolic Smoke Ball Co. v Carlill
Theory or concept of offer to the world has been discussed in this case. The case initiated with an advertisement posted by the Carbolic Smoke Ball in the newspaper that argues about the offer that has been made to the world. The offer was about the positive effects of the cure so advertised for influenza. If it does not work than the affected party or the victim can claim for the sum of amount that has already been deposited in the bank. Mrs. Carlill was found to be a victim of the same but was unable to claim for the sum of amount because any of the customers who are using the product cannot apply for the claim until the acceptance been intimated. It has been identified that the wordings used in the offer to world should be clear and appropriate enough so that customers cannot elucidate it in other way and modify the meaning. (Giliker, 2010)
Case B: Wrench v Hyde
This case argues about the principle of counter offer. According to this case, an offer of selling a farm has been made by defendant to the claimant. Defendant asked for 1000 pounds for the farm from the claimant. The claimant countered this offer by offering the price of 950 pounds for the farm which was rejected by the defendant. Now the claimant agreed on the first offer so made by the defendant. It has been identified from the case that the original offer is no more into existence because it was countered by the claimant and hence the acceptance for that offer by the claimant is considered as the new offer that has been again refused by the defendant results in no contract between them. (Meyer, 2010)
Case C: Braithwaite v Lampleigh
This case revolves around the principle of the invalidity of the past consideration. In this case, a person has been murdered by the defendant. That person was to be hanged till death the next day. The defendant promised the claimant to pay 100 pounds if he gets him the mercy from the king. Claimant agreed to the offer and did the same. After that, claimant claim for the money as defendant denied to pay him. Claimant cannot claim for the money as it is invalid but has the right to claim for the action of the defendant. The monetary claim is invalid in this case because the claim so made is against the action that has already been performed and cannot be changed.
Case D: Tweddle v Atkinson
This case revolves around the concept of privacy to the contract. It has been determined in the case that a couple wants to get married and their fathers had a contract between them to pay a certain sum of money to the couple. Both of them died without completing the contract as the couple did not get the money. The groom claimed for the money from the executor. It has been identified that this claim is not valid as he is not the party of the contract so does not have the right to claim.(Pratt, 2000)
Case E: Cooper v Chapple
In this case, the service provider has sued a woman for not paying the expenses of her husband’s funeral. According to the general law, everyone has to pay for the services they order. The funeral service was important and however should be paid by the women in order to follow the general law.
In the present case, salesman made a statement that argues about the offer of lowest prices in Britain. This offer or the statement is believed to be a trader’s puff. Trader’s puff is about exaggerating the image of the product in advertisement. This exaggeration is not always 100% correct and the statement so made is just to draw the attention of the customers so that they can buy the product. (Meyer, 2010)
Radio, Stereo, Road tax and full tank of petrol are considered as warranty as these are the supplements with the main purpose of the contract. These offers are made for the sale of used cars and hence the statement including all the above stated offers falls under warranty. The terms regarding the price and the model number of the car are believed to be the condition of the contract because these cannot be same of other cars. Registration number is also very much specific in the case of vehicles. The statement made for the registration number of the car also falls under the condition of the contract. The owner of the car and the miles coverage is not always certain. This is the reason these should not be considered as the condition of the contract and used for representation purpose. Sales of Goods Act argue about the provision of the goods. It suggests that the goods so provided should be of high quality and should be according to the terms mentioned in the contract. If the customers find any of the modification or the deviation in the goods from the terms of the contract, he has the right to claim or to void the contract at that very time. It is the duty of the customer to match the terms and the conditions of the contract with the sample product.
In the present case, Jim and his family went for a holiday to Fun Park on the riverside. They parked their car and paid 1 pound to the Stand Council for the same. A board that was hidden behind the bushes says that Stand Council is not liable for the damages caused to the cars parked there. Inside the park at the entry gate, they received a slip regarding the responsibilities of the injuries and death caused to customers. It has been stated in the slip that customers are responsible for the injuries and death to the customers and not the park. Suddenly, a child gets injured by the hit of the flying bar. It has been identified that the statements made by Stand Council and park falls under exclusion clause.(Collins, 2008)
Exclusion refers to the clauses that deals with one party arguing about not been responsible for the certain happenings. The statement made by the Stand Council in the above case was hidden and thus the customers were not fully informed of the contract they have entered into. Therefore this statement that is considered as the exclusion clause is not condition of the contract. As far as the clause provided by the park is considered, it has been identified that the party gets to know about the condition of the contract after entering into it as the visitors already paid for the tickets. This suggests that the exclusion clause of this case is also not the part of the contract and park is liable for the injury and the death caused to the visitors. The exclusion clause so made by the park inhibits the responsibility for the cause of injury and death which is prohibited under the UCTA results in invalidation of the clause, even if it is present in the contract. Jim and his family have the right to claim for the damage of their car as well as for the injury caused to the children.(Pratt, 2000)
The liability arising under the law of tort varies from that arising under law of contract. The liability so arising under the law of contract and tort derives from the breach of duty of different types. Such liability is strict in nature as the duty towards the performance is inevitable and if not performed would lead to serious damages that may be required to be recovered by the damaged party. The breach of duty would be inexcusable and therefore the strict nature of it is derived. The liability under the contract arises from the both areas of law are related to non-performance of the respective duties. (Cooke, 2007)
The liability in the case of contract law is related to the duty of performance of the contract agreed to by the parties. The party to the contract while entering the contract realise certain duties they would be required to perform under the contract. The non-performance would amount to a breach that would be claimed for by the affected party as agreed. The rights so affected are the right in personam. When the breach of contract is considered the elements of a valid contract are analysed such as the offer, acceptance, consideration and such other. The damages in case of breach of contract are realised based on the consideration so involved under the contract. The relationship between the parties is defined at the time of breach so committed. The liability for the breach so committed by the parties is on the mutual agreement.
The liability under law of tort arises from the breach of duty so existing against the society. Such a duty is required to be undertaken by every person towards the neighbour. This is for the purpose of the safety of the party and protect the right of a person under the society. Thereby the rights so affected under the law of tort are that of right in rem. The parties to the beach of duty are connected from the occurrence of the breach and no prior relationship of any nature. It may also be stated that the damages under the law of tort may not be quantified against a standard scale and are determined by the courts depending on the type and extent of breach. The liability of the tort is analysed by the presence of factors such as the duty of care, breach of the duty, foreseeablitiy, remoteness of damage, and such other. (Collins, 2008)
The liability for tort of negligence is defined by the duty of care so present under the society to protect the safety of the neighbours. The duty of care extends to every person next to the person owing the same. If the duty of care is breached due to ignorance or lack of concern the same is regarded as a breach of duty from negligence. Such a duty when breached is to be analysed for the consequences. The damages so arising from the breach of duty of care shall be measured in terms of psychological, physical or monetary loss. The tort of negligence was discussed under the landmark judgment of the case of Donoghue v Stevenson. Under this case the extent of liability for the manufacturer was laid down. It was determined that two friends had gone to a café. One friend who had ordered the beer and ice cream for her friend did not consume the contents. However, the other friend did and found a decomposed snail. This led her into a psychological shock and stomach illness. The defence so used by the manufacturer was that the same was not sold to the friend by the woman buying the same that was fine. It was established that the manufacturer would owe a duty of care towards the possible consumers and not only the direct purchasers of the product. (Giliker, 2010)
To analyse the extent of wrong so committed under the tort the case of Caparo Industries should be considered wherein a three-fold test was provided to study the impact of negligence. It was determined that remoteness of damage, causation and proximity define the occurrence of tort. Remoteness of damage is the least possible impact the wrongful act may be able to impose. The causation defines the relativity between the negligence and damage. The proximity of the damage means the possibility of the two having connect to impose a serious effect.
The liability so present for the wrongful acts of the others is defined to be a vicarious liability. The nature of vicarious liability is that the person not performing the breach of duty of care would be responsible for the breach. This is because the action that was wrongfully performed was for the benefit of the responsible party. Thereby, the person doing the wrongful act won’t be liable unless the actions are illegal or the means to achieve the action is illegal. This type of liability occurs under the employer-employee relationship because the same takes place from the acts so delegated by the employer towards the employee to perform the same. Thereby, the breach so caused would be the responsibility of the employer. It is also important to note that the wrongful act so committed should be in the course of business and not the personal motivation. If the wrongful act is form the personal actions then the employer cannot be held liable. (Vettori, 2007)
According to the Health and Safety at Work Act it is essential that the employer should maintain the premises of the work place in such a way that the employees are safeguarded. Equipment provided shall be of standard and the sanitary services shall be clean in order to ensure the same. According to the Occupier’s Liability Act it should be ensured that the employer has maintained the premises according to the security standards keeping the best interest of visitors and non-visitors. The premise should have a warning sign in case of accident prone zones that may affect the visitors both of temporary and permanent nature. This should include trespassers as well. (Nel, 2004)
This case revolves around the act of negligence. The defendant in this case is the owner of the mini-bus services. It has been identified in the case that a mini-bus was left idle on the road overnight with the keys in the ignition. The bus was left unlocked as a hired driver was expected to pick up the bus and he was not present for the shift that night. Some thieves passing by saw the unlocked bus with the keys and drove it away. The thieves were not driving the bus carefully and this ends up with the death of women on bicycle as they banged the bus into her. A legal action was taken by the woman’s husband against the mini-bus services. It has been identified that the cause of the accident was the bus but it was not drove by the owner of the bus services not either by the hired drivers. Therefore, the action of negligence that was taken by the woman’s husband was not considered. The bus owner and the employees are not liable for the act of negligence by the third party. Hence, the husband cannot claim anything to the mini bus owner or employees for the loss of her wife with respect to the negligence act of the thieves.(Nel, 2004)
According to the case, a crane has been hired by the Coggins and Griffiths from the Mersey Docks Board. The driver so provided with the carne was the employee of the board only. A man has been injured due to the negligence driving of the crane by the driver provided by the board. Board has been liable for the claim of the injuries so caused. The topic of discussion is that whether the contract of exchange of employees and vicarious liability for the time of hire is valid or not. It was mentioned in the contract that the hirer should not be asked about how to lift the things rather only allowed asking what to lift. There was no transferring of work performed by the driver. It has also been determined that the employer with direct control of the employee at the time of negligence is responsible for the happenings in case of two employers. According to this case, the direct employer of the driver was the Mersey Docks and thus they are liable for the negligence of the driver that results in the injury of a man. (Richards, 2006)
The assignment so studied presents the differing nature of different contracts. Every contract however is similar in regards to terms of contract that are to be included to form a contract. The standard form of contracts and the different impact of breach of such terms has been provided to analyse the effect of terms. The liability so arsing under breach of contract has been provided in distinction to liability arising under tort. The similarity and differences between the two liabilities has been highlighted under the assignment. The effect of different types of torts the and damages so arising has been analysed in the assignment as well.
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