Law of Tort

INTRODUCTION

The following report will try to contrast over the topics involved with ‘Law of Tort’ and ‘Law of Contract’. This will be done by explaining the connotation of different important elements of contract in various cases. In support this report will explain the concepts of ‘Negligence’ and ‘Vicarious Liability’ by giving proper examples of the same.

TASK 1

“Explain the essential elements of a contract.”

Below are the important ‘elements of contract’:

‘Offer and acceptance’: In regard with the arrangement of contract it is necessary that there should be at least two parties involved. Among these two parties one party should make a proposal and another should accept the same resulting into contract.

Legal capacity’: For being a party to the contract it is necessary that the people involved should attain the age of majority and along with this they should be qualified by law i.e. they should not be declared insolvent or prisoner, etc.

‘Consideration’: An agreement cannot be treated as a contract if a valid consideration is not involved. With the term ‘valid consideration’ we mean that there should be some value for the consideration fixed in the agreement. It is not compulsory that the value should be only in terms of money rather it could be calculated in such forms also i.e. right, benefit, etc.

‘Legal relationship’: The proposed agreement should involve a kind of legal relationship among the parties to the agreement. This relationship should impose a kind of obligations among the parties in regard with the performance of contract (The Law Handbook, 2013).

“Should a contract have all those elements to be legally enforceable? What will happen if one of the elements was missing in an otherwise valid contract?”

Illegal or void contract:

Whenever the agreement deficit any of the elements given above then that agreement will be considered as a void contract, which means that they can be enforceable with the presence of that missing element. Whereas it is necessary that the agreement having the all above elements should not be contrary to law otherwise it will be treated as an illegal contract. Hence it is necessary that all the above mentioned elements should be there in order to form a valid contract.

“Is it possible to have a contract without face to face contact? Discuss.”

‘Distance Selling Contract’

“Online Shopping” is one of the examples of Distance Selling Contract. This type of contract particularly deals with the contract were the formation of contract is done without having face-to-face contact with the supplier. This could be done on telephone, emails or other modes of distance communications. For these types of contracts a special protection is governed by a particular regulation for the consumers. This is because here the consumers did not get the facility to meet with the supplier and even they could not inspect the goods or services beforehand.

“Consumer Protection (Distance Selling) Regulations 2000”

Following rights are concluded from this regulation for consumers:

  • Fortification from ‘card payment fraud’
  • Information regarding” supplier, goods or services and sale” initially before making any purchase.
  • A written confirmation should be there regarding the given information.
  • There should be a period of seven working days in which cancellations of the contract could be made (Out-Law.com, n.d.).

“Describe the effects of the words in the advertisement placed by the company informing the readers that it had placed £1000 with the Alliance Bank to meet any possible claim.”

Unilateral Contract:

In such kind of contract an express agreement is missing by the parties. Even then the law obligates the parties in a legal relationship once acceptance is made. Below given case is a very good example of this:

(Carlill v Carbolic Smoke Ball Co., 1893):

Here in this case there was an involvement of a unilateral contract. This formation is done with the help of an advertisement and the seriousness of this can be judged out by mentioning of reward deposition in bank. Further the below mentioned facts could be concluded from the contract:

  • The conclusion of serious nature can be done with the help of mentioned ‘words and actions’.
  • The offeror should be able to determine the acceptance made.
  • The judgement of a ‘unilateral contract’ could be easily make out from the given advertisement. Further the acceptance is concluded with the performance of the required conditions given in advertisement.
  • For the vague contract the description should be made in such a manner that intentional interpretation is possible easily.

TASK 2

“Give a clear opinion on whether the essential elements of a contract were present in the very first agreement between David and William. Identify the elements that were present and that were not.”

Following elements are involved in this situation:

  • Invitation to treat: David made an invitation to treat through an advertisement.
  • Offer: An offer was made by David by giving a quotation regarding the required work to be executed.
  • Acceptance: An acceptance is observed in this situation for the proposal, by William by agreeing all the terms and conditions and paying £1000 in advance.
  • Consideration: The sum of £18000 is considered to be a valid consideration for the performance of contract.
  • Legal Capacity: On 10.05.2014 both David and William are major and legally fit of entering into contract.
  • Legal Relationship: For the performance of the contract after accepting all the terms and conditions and nothing mentioned in the contract in support of making the parties free from any obligation creates a legal relationship between the involved parties.

“When William informed David of the requirement to complete the work before 31st July 2014, was a contract formed between them? Discuss.”

In the given situation the concept that “the silence cannot be treated as an acceptance” applies. This concept is derived from (Felthouse v Bindley, 1862). Here the offer made by William is not accepted by David by maintaining the silence regarding the offer for the completion of work till 31st July 2014. Further in the given situation a contract is observed when William accepted the proposal made by david with a consideration for the completion of work till the specified date which was not a part of initial contract between them.

“Discuss the position of David when he informed William on 25th June 2014 that he would not be able to complete the work before 31st July 2014. Was he in violation of the contract terms?”

As the time period was not a condition mentioned in the contract, no breach is observed while the refusal is made regarding the completion of work on 31st July 2014. Even the silence maintained by David is also not considered as an acceptance when William asked for the same afterwards. Hence as it was nowhere considered as a term of contract no liability lies on David.

“Explain the situation to David on his claim for the additional £2000 for completing his work before 31st July 2014”

In accordance to me, there is a formation of contract when the proposed offer was accepted by William in regard with the consideration of £2000 extra for the completion of work by 31st July 2014. The legal relationship evolving due to this contract creates an obligation for both the parties i.e. for William to complete the work till specified time and for David to give the specified consideration over the performance of contract.

TASK 3

“Describe, using example, how a liability in tort may arise. How does it differ from a contractual liability?”

‘Tortuous Liability’:

It is treated as a part of ‘private law’. The wrong committed by a person resulting into some injury to other, not only physical injury rather includes mental and proprietary injury also.

‘Contractual Liability’:

“Describe what have to be proved by the claimant in order for the courts to establish tort of negligence has occurred.”

“Describe the concept of ‘vicarious liability’. Give two examples where an owner of a business could be held liable for the actions of his/her employees. Also give two examples where an owner of a business would not be held liable for the actions of his/her employees.”

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TASK 4

“Compare and contrast the verdict in Donoghue v Stevenson (1932) with Hill v Chief Constable of West Yorkshire (1989). What defences were used in each case? Give your view on the verdict of the second case. Do you consider it as a just verdict?”

“Discuss his position from the vicarious liability point of view.”

Maddox Smith

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