Unit 5 ACNB Contracts and Elements Assignment
Task 1
1.1: Explain to Peter Abraham how a contract is formed and the importance of the various elements which has to be present to form a contract.
Unit 5 ACNB Contracts and Elements Assignment
An offer containing the terms of any potential contract between the parties is given by the offeror to the offeree in a conventional contract. Depending on the goal of the contract, there may be two or more of these parties. An offer must to be specific and distinct from an invitation to make an offer. A person who posts an advertisement or promotion is seeking offers from parties who are interested in getting into a contract by using the phrase “invitation to offer.” The offer may be accepted, rejected, counter-offered, withdrew, expire, or be terminated by death. It is crucial for the party making the offer to accept it before a contract can be said to have been established.
Unit 5 ACNB Contracts and Elements Assignment
A contract must be made with the involvement of a consideration in order to be legally binding. It means that the contract is amended in the same transaction without causing harm to either party. As a result, for the contract to be enforceable, there must be an exchange of value between the parties. A consideration must be substantial, proceed from the promise, not be an existing contractual or societal obligation, and not be of a past character in order to be considered valid. The parties must also intend to enter into a contract. This would imply that for a contract to be legally binding, the parties must specify its nature and purpose.
Contrary to commercial contracts, social contracts are not seen as being enforceable by law. This is so because it’s thought that the objective of a commercial contract includes its legal enforceability. A contract should only be entered into by parties who have the legal authority to do so. This would entail that the parties must be of legal age to contract, unaffected by a mental disease, and financially capable. The contract would be worthless from the start if the parties were determined to be incapable of entering into it, and in some circumstances the harmed party might be entitled to do so. 2011 (Andrews)
1.2: Discuss the impact of forming contracts
Face-to-face contracts: Contracts entered into while the parties are seated together in the same room are considered face-to-face contracts. The parties to the contract must be in close proximity and be aware of one another. Before signing a contract, terms and conditions are probably addressed and may be written or spoken, depending on the preferences of the parties. Such contracts are simpler to construct since they guarantee that the terms and conditions were principally discussed in close proximity. These can be legally enforced quickly and effectively. (Finch, 2007).
Written agreements: Agreements that are signed in writing are referred to as written agreements. The terms and conditions are mainly provided in writing and are also acknowledged by signatures. The contract was entered into with a common and intentional objective. Although it takes a long time, because it is in writing, it is very readily enforced. The consequences of a breach of such contracts are so severe and onerous.
Contracts for distance selling: When the sale transaction occurs even when the parties are not in the same room, the agreement is referred to as a distance selling contract. The offeror’s price is the basis for the trade of goods and services.
These can be expressed verbally or in writing. At the moment of the transaction, the distance seller must disclose the name of their company plan, their contact information, the price, and a description of the goods. If the product is replenishable, it should also indicate that it will expire after 14 days. The address for complaints and the delivery arrangements made must be made extremely clear to the distant buyer. The Distance Selling Regulations of 2000 apply to transactions of this kind. (Meyer, 2010)
1.3: Analyze terms in contract with reference to their meaning and effect
The most significant clause in a contract is typically a condition. This would imply that, at the discretion of the harmed party, the contract would be void when the term was not fulfilled. The parties’ agreement to the contract is predicated on a condition. However, there are various types of conditions, including prior, following, and contemporaneous conditions. These requirements are fulfilled at the various stages of the contracts, as chosen and agreed upon by the parties. In a sale of products agreement, the buyer is entitled to terminate the contract if the seller fails to sell the goods in accordance with the sample. A warranty is thought of as a crucial clause in a contract, but if it is not fulfilled, the agreement is not automatically worthless. If the warranty is not upheld, the harmed party may seek an injunction, compensation, or specific performance. The warranties are a contract’s second-most crucial component. The party who was harmed by non-performance cannot break the contract. These guarantees may be expressed as implied guarantees, lifetime guarantees, performance guarantees, and special guarantees. 2011 (Andrews). It can be challenging to ascertain the exact nature of the term in question in light of the given circumstance. As a result, the character of such terms is decided by the consequences of a term’s violation. It is analyzed if the effect of breach would affect the nature of the contract then it is a breach of a condition. Without that, it would be regarded as a warranty. A word is considered to be an exclusion clause when it limits what can be done in the event of a contract breach. The purpose of the word is to restrict any potential liability that could arise from it. Fair and reasonable exclusion provisions must be included in an appropriate manner. Any restriction that pertains to harm or death is void. It may be incorporated into the agreement through signatures, notice, or prior conduct. The most impacted party may determine how the clause is to be interpreted, either narrowly or broadly, depending on the circumstances. (Adams, 2008).
Unit 5 ACNB Contracts and Elements Assignment
Task 2
2.1: Apply the elements of contract in the given business scenarios below
Case 1: It has been established that a newspaper advertisement for the sale of a couch was published in this instance. The couch was up for sale, but the intention was to solicit offers rather than make a transaction. As a result, the advertisement would be seen as an invitation to offer rather than an actual offer. Carol has expressed interest in the couch and has consequently extended an offer via email. Carol had only made the owner of the couch aware of the offer at a specific cost. The choice to accept or decline the offer is now up to the owner of the couch. No contract is deemed to have been created between the parties because no acceptance was expressed Carlill v. Carbolic Smoke. In case number two, Devi was eager to join a cyber-security business. He did not, however, want his father to meddle in the interview procedure. Devi was given a job offer on April 12 after doing well in the interview, and he accepted it. Unaware of this, the father makes the employer an additional offer of 150,000 GBP to hire his son for the position. The same was approved by the business, and now the father must pay the requested amount in order to hire the son. It should be highlighted that past nature cannot be taken into account.
Unit 5 ACNB Contracts and Elements Assignment
2.2: Apply the law of term in the following contracts
Case 3: In this situation, it is crucial to identify the type of contract and the legality of the contract’s conditions. It is stated that the pair checked their outerwear when they arrived at the restaurant and were given the slip for doing so. The wallet was inside the coat. But it was stated in the slip that the restaurant would not be responsible for the loss of any valuables, therefore at the time of checking, they were kept in the coat. When the couple went to retrieve their wallet from their coat after the lunch, they discovered that it was missing. The restaurant subsequently made it clear that it would not be liable for the loss as shown on the slip. It should be emphasised that the UCTA, 1977, finds that the exclusion clause restricting liability in cases of theft or loss is reasonable and legal. However, the provision was not made available until the coats had already been checked in, not even then. The exclusion provision was not included in the contract as a result. The restaurant would therefore be responsible for the loss incurred by the couple in L’Estrange v. Graucob. 2011 (Andrews). Case 4: In this instance, it was found that the renter had added certain things to the house that he was renting. In exchange, the landlord promised not to raise the rent for the home for the following five years. The following year, it was discovered that the property’s owner had passed away. Thus, the property’s successor made the decision to raise the rent. The legitimacy of the promise and the tenancy agreement must be established in the current case scenario. The tenant added improvements to the property, which raised its worth, but the new owner of the property refused to pay for them.
Task 3
3.1: Explain the similarities and differences of liability under tort and contractual liability using an example
Liability under contract law and tort law is different for a number of reasons. Under both laws, the culpability that results from this is rigorous in nature and must be stated rather than proven. This is due to the fact that the breach—which can be either personal or social—is sufficient to be compensated under the two departments of law. The responsibility resulting from an acceptance of duty while the promise is still being fulfilled. 2007 (Vettori) The two branches of law may differ in the ways listed below:
While the liability under contract law is quantitative and evaluated against the consideration value, the liability under tort law is not quantifiable and may vary.
In contrast to contract law, where the motive is disregarded, tort law derives culpability from the motivation. (Bell, 2013)
The rights at issue under tort law are those of right in rem, and those under contract law are those of right in personam.
Unit 5 ACNB Contracts and Elements Assignment
While it is not taken into account under contract law, causation is taken into account under tort law.
While the scope of culpability under contract law is constrained, it is broad under tort law.
Compensation is a remedy available under tort law, whereas restoration and restitution are remedies available under contract law.
Although the contract specifies their relationship, the parties do not now have a relationship. (Giliker (2010)
Only the parties to a contract may make a claim for compensation under the law of tort, but the parties harmed may do so.
The factors that are taken into account for a tort are the remoteness of the harm or the cause, whereas the factors taken into account under the law of contracts are the offer and acceptance.
3.2: Explain the nature of liability
Liability is defined as the duty to make good on the harm created by the violation of an existing duty. When someone is hurt as a result of an action that should have been prevented in the first place, carelessness under tort law may be at fault. Liabilities may result from the pain that was inflicted, lost wages, or other harms. The duty of care that is owed to society must be broken for a negligence tort to exist. The violation must be so severe that it causes harm in the form of material, psychological, or financial loss. The harm that resulted may have been caused by ignorance, inaction, or amnesia. The irresponsible driving of a driver who is intoxicated is an example of a negligence tort. In this case, the motorist is failing in his or her duty of care and endangering the lives of other drivers, pedestrians, and vehicles on the road. (TAN, 2008).
In the case of Donoghue v. Stevenson, it was decided that the duty of care should be exercised not just toward direct consumers but also toward society as a whole. As a consumer is seen as objective and not subjective, manufacturers were forced to consider the care for potential consumers as well as the purchases.
Therefore, the remoteness and direct cause alone will be enough to establish culpability. In the case of Caparo Industries, the threefold test was also used to evaluate negligence and any resulting culpability. The cause and impact of the neglect must be directly related. The harm resulting from this must be even tangentially connected to the negligence. The act and the effect must occur close enough together for the effect to be established. The discussed duty of care should be reasonably expected to be exercised, and when it is violated, liability results. (Cooke, 2007).
Unit 5 ACNB Contracts and Elements Assignment
3.3: Explain how a business can be vicariously liable
The vicarious liability is connected to the liability for another person’s breach of duty. Only when the two share the relationship of performing the obligations is one vicariously liable. These obligations are delegated to the other party to carry out on the delegator’s behalf because the delegator would be accountable if they were broken. Employer-employee relationships are the most frequent ones in which vicarious liability occurs. This is so because the employee was explicitly hired to carry out the numerous responsibilities that had been assigned to them by the company. Only when the employee is not performing official duties would the employer be responsible for the berach. If an employee violates their duty of care, their employer is not held responsible. The Health and Safety at Work etc., 1974 mandates that the employer bear responsibility for the employees’ safety. In order to comply with health and safety regulations, the property must be kept in good condition with regard to its equipment, sanitation facilities, clean water, and disposal systems. Additionally, as per the Occupier’s Liability Act, the occupier or employer is responsible for ensuring the security of both visitors and non-visitors on the property from any threats that may be present. To alert the public of potential dangers and damages so they can make an educated choice, a notice must be posted in a location that is easily accessible to all. (2011) Morgan.
Task 4:
4.1: Apply the elements of the tort of negligence and defenses in the given business scenarios below:
Case 7: In the current case study, it is necessary to ascertain the type of negligence that occurred. Given that the patient had visited the hospital complaining of chest and breathing problems, it seems sense. When the doctor was notified by the nurse of this, he continued to administer over-the-counter medications without first doing a checkup on the patient. The next day, the patient’s body was discovered. The patient’s home-grown poisonous mould caused pneumonia, which was ultimately determined to be the main cause of death. The prescription medications did not cause the harm, which is why the cause of death was pneumonia brought on by poisonous mould. The indicators of a significant chronic condition were present in cases of chest and breathing issues, therefore the doctor insisted on performing a thorough examination. The physician disregarded the same. As a result, it is claimed that the doctor engaged in professional negligence. (TAN, 2008)
In this case, the but-for test is used to examine the causal link between the cause and effect. As a result, the patient in the described case passed away indirectly but close by. As a result, the cause’s proximity but not its distance was eliminated. This is due to the fact that he passed away from anything other than the medications.
Unit 5 ACNB Contracts and Elements Assignment
Conclusion
A consideration must be exchanged between the parties in order for the contract to be deemed genuine and to give the agreement entered into force. The parties will enter into a contract based on a number of factors, including consideration, an offer, acceptance, and purpose. These components define the existence of the contract and are crucial. Under Unit 5 ACNB Contracts and Elements Assignment, the various contract types and their effects are also discussed. In comparison, the culpability resulting from tort and contractual breaches is assessed. The nature of vicarious liability and tort of negligence is furthermore presented to solve the case studies included in the assignment.
References
Cases:
Carlill v Carbolic Smoke Ball Co.
Mills v Wyman
L’Estrange v Graucob
Hutton v Warren
Poussards v Spiers
Bisset v Wilkinson
Donoghue v Stevenson
Unit 5 ACNB Contracts and Elements Assignment
Books:
Adams, A. (2008). Law for business students. Harlow, England: Pearson Longman.
Andrews, N. (2011). Contract law. Cambridge: Cambridge University Press.
Finch, E. (2007). Tort law. Harlow, England: Pearson Education.
Meyer, L. (2010). Non-performance and remedies under international contract law principles and Indian contract law. Frankfurt am Main: P. Lang.
Richards, P. (2006). Law of contract. Harlow, England: Pearson Longman.
Journals:
TAN, S. (2008). Vicarious Liability. Internal Medicine News, 41(24), pp.36-37.
Morgan, P. (2011). Distorting Vicarious Liability. Mod. L. Rev., 74(6), pp.932-946.
Bell, J. (2013). THE BASIS OF VICARIOUS LIABILITY. C.L.J., 72(01), pp.17-20.
