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Aspects of contract and

negligence

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Table of Contents
Introduction................................................................................................................................ 1

Lo1 Essential elements of valid contract.........................................................................1

1.1 Essential elements required for valid contract in the given case.............. 1

1.2 Impact on the contract............................................................................................... 3

1.3 analysis on terms with reference in the contract.............................................4

Lo2 Applicability of the elements of the contract in the given business


situation....................................................................................................................................... 4

2.1 Elements of contract in the given situation........................................................4

2.2 Applicability of law on different contracts...........................................................4

2.3 Effect on the given contract..................................................................................... 5

Lo3 Principles of liability in negligence............................................................................ 6

3.1 Contrast liability in tort with contractual liability............................................. 6

3.2 The nature of liability in negligence...................................................................... 6

3.3 Liability of business......................................................................................................7

Lo4 Applications of principle of liability in the given situations..............................8

4.1 Elements of Tort and defenses available in different situation...................8

4.2 Applicability on the Vicarious in given situations-............................................9

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Conclusion................................................................................................................................ 10

REFERENCES............................................................................................................................ 11

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Table of figures
Figure 1 essential elements of the contract...................................................................2

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INTRODUCTION
The contract is agreement enforceable by law between two or more
parties, and binds them for performance. The English legal system in divided
into two parts criminal law and civil law. The following project is based on
civil law as contact and tort are both covered in the civil law (Harpwood,
2009). Provisions of contract law are covered in English contract law,
contract Act 1999 UK. The following project will include analysis of given
case study and solution for the cases as per the provisions of contract and
Tort law.

Lo1 Essential elements of valid contract


1.1 Essential elements required for valid contract in the given case
Contract refers to written or oral agreement between two or more
parties, which is enforceable by law. Following are the factors for the
essentiality of contract-

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offer and acceptance

intention ot create legal relation

lawful considerations

capacity of parties

free consent

lawful object

writing and registeraration

certainity

possibility of perfomance

not expressely declared void

Figure 1 essential elements of the contract


Offer and acceptance- there should be lawful offer and acceptance to
the given offer by offerre. There should be offer not invitation to treat by
party (Wheare, 2003). Invitation to treat refers to invitation to the person to
give offer to the person from whom he received the invitation. Its not an
offer.

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Intention to create legal relations- in contract there should be legal
intention to enter into relationship, if there no such intention then there is
not a valid contract.
Capacity of parties- the parties must be competent to contract,
competent refers to person should be of sound mind, major and it should not
be disqualified by any law, subject to the contract.
Privity of contract- This is the doctrine in the common law which
defines that there is no obligation towards the outsider or who is not party to
the contract but in certain situations there are exceptions to this doctrine
(Lando, 2003). This doctrine has important implications on the right of third
parties to the contract.

1.2 Impact on the contract


Contact can be of two types i.e. face to face or distance contract. A
distance sale contract is a contract where the contract is done without face
to face contact (Milner, 2011). In face to face contracts terms and conditions
are decided at that time only but in distance contract offer is accepted by
the communication on the basis of the contract (Neyres, 2005)..
If the essential of contracts are missing then there is no valid contract.
The all elements of valid contract should be present in the agreement to
make it valid contract. In face to face contract if essential elements are
missing in this contract it is voidable at that time only but in distance
contract the facts are depends upon receiving the response of further party.

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1.3 analysis on terms with reference in the contract
In the given case there is offer to invitation to treat by display of books
in the store by Sam (Schulze, 2010). Bob cannot force him to accept the offer.
Sam is even not in capacity to enter in the contract with Bob because that
was the last copy of book which he had already sold it to Carl (Kelly, 2009).
By invitation to there is not legal intention to enter into a contract, it is
choice of Sam to accept the offer or not.

Lo2 Applicability of the elements of the contract in the


given business situation
2.1 Elements of contract in the given situation
In the given scenario there were contract between Barry and local
council as all the elements were present in their agreement. There was valid
offer and acceptance among parties. By purchase and sale of tickets there
was legal intention of parties to enter contractual relationship. Consideration
was provided by both the parties. Barry pays 50p to local council and in
exchange they had provided chairs.

2.2 Applicability of law on different contracts


The given case contract is case of hired agreements. Hire agreements
are those agreements where goods are taken for some period for certain
consideration but ownership of goods is not transferred of that good (Treitel,
2002). In these kinds of contract there are implies and express terms for the

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contract. Express terms are those terms which are certain and defined by
the contract clearly and have consent of both the parties (Elements of
negligence case, 2014). While implied terms are assumed, that is obvious
terms, or are created by law or by matter of fact or can be customary terms.
In the given case there is express term on the back of ticket that council will
not be liable for any damages occurred by the chair provide to customer
(Wright, 2001). At the time Barry taken the ticket and paid to the council he
entered into the contract with local council and give consent to the express
terms of the contract

2.3 Effect on the given contract


. Barry cannot claim the damages from the local council as according
to clause the local council is not responsible for the damages and it was
declared previously (Whincup, 2008). If there is no such term then Barry can
claim for the damages occurred to him. But there is implied term that owner
should take of visitors that there action do not injured the other person.
The applicability of terms has different impact on different contracts
because terms of contract differ. If there is contradiction between implied
and expressed terms, then express terms will prevail as it has consent of
both the parties (Whincup, 2008). If there is express term that party will not
be responsible for any kind of damages for the hired equipments, then
implied term of recovery of damages cannot be applied on the case but if
there is not such express term then the default party will be liable to pay

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damages to the injured party of the contract (Nystn-Haarala, Lee and lehto,
2010). The injured party can claim for damages occurred to him by the
contract.

Lo3 Principles of liability in negligence


3.1 Contrast liability in tort with contractual liability
Tort liability are those liability which arise when there is no contract
between the parties, it is created by the law because damages occurred by
their action while the contractual liability arise when there is contract
between the parties because of non performance or unsatisfactory
performance by the parties of the contract (Nystn-Haarala, Lee and lehto,
2010). Tort liability is legal enforceable by law and the evaluation of
damaged done by the court of law, while the damages of contractual liability
are decided according to the contract terms. Tort is based on the fault by the
party, it is the civil wrong and the damages are imposed by the law on the
party while in the contract law if the party has done its best still liability can
arise if it not according to the contract.

3.2 The nature of liability in negligence


Duty of care is a legal obligation should be performed by one party to
act reasonably. Duty of care arises when there is legal relationship between
the parties (Donoghue v. Stevenson- the neighbor principle). Breach of duty-
refers to satisfy legal, ethical, or moral obligations in performance (Elements
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of negligence case, 2014). A defendant is liable for negligence if he failed to
exercise reasonable care in the performance of the contract. It can consider
as violation of duty for performance. Causation refers to legal test to
remoteness of breach in English law; it is foresee ability in tort of negligence.
Remoteness to damages refers to an extent to which a defendant is liable for
the result of his default act (Wright, 2001). That the act has occurred how
much damage to property or there is personal injury to the defendant or
there is economic loss. Occupiers liability refers to liability is of that person
who have control on the property for damages not on whom, who is the
owner of that property.

3.3 Liability of business


In the given situation Brian has done the performance reading the
advertisement. By the advertisement Adam has given a public offer and
Brian by purchasing Bath had accepted the same and done his performance.
He was unaware of the second advertisement so he eligible for the award
declared by Adam under Tort law (Schulze, 2010). According to contract law
Adam liability is over because now there is no contract but according to Tort
Adam is still liable for done the performance (Kelly, 2009). If he had not done
his performance by giving award to Brian it will be considered as breach of
duty.

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Lo4 Applications of principle of liability in the given
situations
4.1 Elements of Tort and defenses available in different situation
In the tort there are certain defenses available to the business to avoid
the liability if there is no fault of the party. Tort liability arises when there is
no contractual relationship between parties. It arises when defendant is
liable to take duty of care. Primary reason of injury of claimant should be
negligence of defendant. Damages should not be too remote or minor. If all
such points are fulfilled than liability on defendant is fulfilled by claimant. In
certain circumstances defences can be claimed by defendant under
occupiers liability Act, which are following-
Volenti-non Fit injuria- there is no duty of care if the person takes risks
willingly. For ex. there is proper warning for not to do that act still someone
does that then the pervious party will not be liable for the act.
Contributory negligence- it refers to the negligence of both the parties,
when the other person does not keep reasonable care for the safety (Wheare,
2003).
Exclusion of liability- in this situation Act allows an occupier to exclude
liability of him but if the act done by the occupier lead to death or personal
injury to the defendant then the occupier liability will not be excluded.
Vicarious liability refers to situation where penalty attract to that
person who had not done the offense himself, because he is in legal
relationship with that guilty person. This relation can be of parent and child,
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employer and employee etc (Treitel, 2002). the relationship should be of
such kind that person should be in position to dominate for ex friend or son
of guilty person will not be liable for the act as they are not in dominating
position even they are in relationship with the guilty person (Neyres, 2005).

4.2 Applicability on the Vicarious in given situations-


Statement A- the give statement is correct, the employee does not
owe employee, and employer is responsible for the act. It was negligence of
Roger that he did not use the safety gloves, that was provided by the owner
provided. The employer is not responsible for the infection of Roger.
According to Volenti-non Fit injuria, risk has been taken by claimant at his
own will.
Statement B- the given statement is correct Neil the employer is
responsible of violent act done by the Colin on subordinate. It is Neils
responsibility to take care of that no physical violence take place in the
organization. In this owner will be vicariously liable for the act of Neil.
Statement C- the given statement is correct the hotel is liable under
the Occupiers liability act because they are responsible for the safety of
their customers and their goods. The robbery was done by the employee of
the hotel so yes there is responsibility of Poshpalace.
Statement D- the given statement is correct under the clause of the
Act Volenti-non Fit injuria, because the management had given the clear

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warning Mark had taken the risk the hotel will not be liable for the Marks
negligence.
Statement E- the given statement is false Mark cannot held hotel
liable for the act done by him after reading the warning. As per the clause
Volenti-non Fit injuria occupier will not be liable if the act is done even after
the warning.
Statement F- the given statement is correct Mark cannot hold liable
Poshpalace for his designer swimwear because risk was taken by himself
even after the warning.
Statement G the given statement is correct; Mark can hold liable
Poshpalace for the robbery under the vicarious liability, because robbery is
done by the employee of the Poshpalace so employer will be responsible for
the Act.

Conclusion
There should all essential elements present in the agreement to make
it valid contract. From the following report we can conclude that the contract
should follow all the provision of the governing act (Stanton, 2005). If there is
negligence in the performance of the party or duty of care and that cause
damages to the party that will lead to penalty whether if there is no contract
between the parties (Lando, 2003). The person should take care of the
actions of that person who have legal relationship with him; if he fails to do

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to he will attract the provision of vicarious liability towards him (Harpwood,
2009).
REFERENCES
Books and journals
Harpwood, H. V., 2009. Modern tort law. Routledge.

Lando, O., 2003. Principles of European contract law. Kulwer law


international.

Milner, A., 2011. Contract interpretation: potential for relaxing the


exclusionary rule. International Journal of Law in the Built Environment.
3(3). pp.205 - 221

Nystn-Haarala, S., Lee, N., and Lehto, J., 2010.Flexibility in contract terms
and contracting processes. International Journal of Managing Projects
in Business. 3(3). pp.462 478

Schulze, R., 2007. New feature in contract law. Sellier, European law
publications.

Treitel, H. G., 2002. Some landmarks of twentieth century contract law.


Oxford University Press.

Whincup, H. M., 2008.contract law and practice. Kulwer law international.

Wright, J., 2001. Tort law and human rights. Hart publishing.

Online

Elements of negligence case.2014..[Online]. Available through:


http://injury.findlaw.com/accident-injury-law/elements-of-a-negligence-
case.html

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Kelly, F., 2009. 1410laws of tort. [Pdf]. Available through:
<http://www.ubclss.org/CANs/140%20Law%20of%20Torts.pdf>
[Accessed on 11th April, 2014]

Mondal, B., 2014. Ten essential elements of valid contract.[Online]. Available


through: <http://www.shareyouressays.com/92086/ten-essential-
elements-of-a-valid-contract-essay>. [Accessed on 11th April, 2014]
Neyers, W. J., 2005. A theory of vicarious liability. [Pdf]. Available through:
<http://www.ucc.ie/law/odg/attachments/NEYERS_(Theory_of_VL).pdf>[
Accessed on 11th April, 2014]

Stanton, T. C., 2005. International Legal Research: A Beginners Guide.


[Online] Available through:
<http://library.law.unc.edu/festival/festival2002/int.html> [Accessed
on 11th April, 2014]

Wheare, C., K., 2003. maladministration and its remedies. The English law.
[PDF] Available through:
<http://socialsciences.exeter.ac.uk/media/universityofexeter/schoolofh
umanitiesandsocialsciences/law/pdfs/English_Law_the_New_Dimension.
pdf >[Accessed on 11th April, 2014]

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