Unit 5 ACNB Contract Liabilities Assignment

Introduction

Unit 5 acnb contract liabilities assignment discussed relationship between two or more parties for a determined purpose including an exchange of goods or services is known as a contract. A contract may be of many types depending on its nature and the agreement between the parties. The liabilities arising under contract and tort for the breach of rights is civil in nature. However, both the liabilities bear certain differences as well. The liability is defined to be strict which means that the right so breached may be claimed for without determining the reason of the breach.

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

An offer is regarded as a statement made by the offeror stating the terms of the contract to be entered into by the parties. The offer should be clearly expressed and be easily understood. The offer is different from the invitation to offer. The invitation to offer is only a statement informing the possibility of a contract. Thereby, it invites the offer from the interested buyers. The offer so made is then either required to be accepted or rejected. An offer may conclude throughacceptance, rejection, death, and lapse of time or withdrawal. If the offeree agrees to the offer so made then the contract may be said to have been entered into by the parties. The acceptance shall be express and clear in meaning. Acceptance is required to be communicated to the offeror. The offeree should always make an acceptance. If the acceptance is to be communicated it shall be within the given means of marketing communication.  If the acceptance is made through post then the same may apply as soon as it is posted. Under the offer made to the world the acceptance of the offer is considered as the performance of the terms so mentioned under the offer, thereby, no communication of the acceptance is required.

When the contract is being formulated the purpose of the contract is to be determined in order to determine the enforceability under the law. If the contract is made for the social purposes then the same shall not be enforceable under the law unless the same is mentioned. However, the commercial contracts are enforceable under the law as the parties are unrelated and only come together for a specific purpose. Thereby, the contracts are enforceable under the law unless otherwise is mentioned. Every contract is only considered valid, as long as the parties exchange a certain amount of consideration between each other. A consideration may be a profit, right or an act of performance. The consideration shall be valid in terms of being present, not arising from a pre existing duty of social or contractual nature and be sufficient. The consideration should always move from the promise. The exchange of consideration ensures the validity of the contract under the law. A consideration creates a relationship of give and take for either side. (Andrews, 2011). When the contract is being determined it is important for the parties to determine that the purpose is clear and common between the parties. The contract has to be understood and people that are of legal age, of sound mind and have a positive financial status hold the capacity. If the person is not of legal age but enters into a contract for the purpose of necessity then the contract will be considered valid. The capacity shall not be tainted with the undue influence or intoxication at the time of entering into the contract.

1.2: Discuss the impact of forming contracts

The different types of contract that are present are face-to-face contracts, written contracts and distance selling contracts. The parties in the presence of each other generally enter the face-to-face contracts. Such contracts are offered under conversations and generally the acceptance is provided under the same conversation or the subsequent conversation.  Such contracts are not present in writing and are difficult to refer to when enforcing the contracts. The contracts are only enforceable through hearsay that is not considered a good evidence thereby, making the contract only partially enforceable to the extent proven under the court. (Finch, 2007). The written contracts are regarded as that contract for which the terms and conditions are referred to in writing. The contracts of such nature are easier to be established under the law as the contract may be presented as an evidence for the enforceability of the same. It is advisable to enter into the written contracts in order to ensure the enforceability in case of breach. The contracts that are entered into by the parties from a distance, without being present in front of each other, is regarded as a distance-selling contract. The distance seller makes the offer stating the terms of the contract that is thereby accepted. The communication is generally undertaken in the written form in order to avoid confusion. The contracts of distance selling nature are regulated by the Distance Selling Regulations. The distance seller should be mentioning the terms and details of the contract and delivery at the time of making the sale. The details such as delivery dates, nature and quantity of the product and the taxes applicable are to be communicated when entering into the contract. (Meyer, 2010)

1.3: Give an analysis of the following term in contract concerning their meaning and effects as it may apply to Peter Abraham

A condition is the  marketing essential  part of the contract that determines purpose of the contract. It regulates the performance of a given contract. When a contract is being performed the non-performance of a condition may lead to the breach of the contract. The condition may be performed at different steps of the contracts such as concurrent, present and subsequent. The same are to be fulfilled accordingly in order to fulfil the performance of the contract. (Andrews, 2011).  A warranty is regarded as the term that supports the performance of the contract. It implies the performance of the contract in its entirety. Warranties are indirectly related to the contract and do not lead to breach of contract if not performed. If the warranties are not performedthenthe damaged party may claim for the damages, injunction or specific performance. If the terms are not clear in meaning then such contracts are categorised as the innominate terms. These terms are to be determined on the basis of the effect that they draw In case of breach of the terms. If the breach directly affects the performance of the contract then it will be considered as a condition. If the breach does not affect the nature of the contract then it will be regarded as a warranty. Sometimes the parties include the clauses that restrict the liability in the case of breach of the contract. If the liability is concerning the death or injuries so caused then such terms are considered invalid under the Unfair Contract Terms Act. It is required that the exclusion clause is interpreted according to the least benefitting party. The exclusion clauses may be included under the contract through signatures, previous dealings and the notice. (Adams, 2008)

Task 2

2.1: Apply the elements of contract in the given business scenarios below

Case 1: As per the facts of the case study an advertisement was posted for the sale of couch. The seller had posted the advertisement as an invitation to treat to ensure that the interested buyer make the offer for the same.  An invitation to offer is different from the offer and does not involve in the formation of the contract. It can be said that Carol wanted to purchase the couch for which she decided to send e-mail to the seller stating the offer. However, she did not get a revert on the same. It can be said that as the seller made no acceptance no contract can be said to have been entered into by the parties involved under the present case study. (Collins, 2008)

Case 2: As per the facts of the given case study it can be determined that Devi was interested in working with the organisation specialising in the cyber security branch of study. Devi’s father was a man of reach and was asked to keep away from the recruitment process. When Devi had gone for the interview he was selected and presented with an offer of employment on 12^th April. He accepted the same. Later on 13^th April, Devi’s father had made an offer to hire his son for the position in exchange of 150,000 Pounds. It was unknown to him that his son had already been offered the employment. The company now wants to hold the contract against the father. The contract of this nature will be considered void because it has been entered into for the event that has already taken place therefore the consideration is invalid for being of past nature. Therefore, Devi’s father does not owe the company any amount in arrears. (Vettori, 2007)

2.2: Apply the law on terms in the following contracts

Case 3: As per the facts of the case, it may be determined that a couple wanting to have a dinner at the restaurant. When entering the restaurant at the desk the couple checked in the coats. The couple were handed over with the ticket stating an exclusion clause limiting the liability for the case of loss or theft for the things deposited at the desk. After finishing the meal they realised that the wallet was left in the coat. When the same were to be claimed it was found missing. It may be determined that although the exclusion clause was valid it was irrelevant tot the present situation. This is because the parties under the contract did not enter into the exclusion clause but after the contract had already been entered into. The exclusion clause therefore, could not be enforced and the restaurant will be liable for the loss so suffered from the loss of the wallet present in the coat. (Andrews, 2011)

Case 4: According to the case study, the tenant had rented the premises of the landlord. During his tenancy he had made some improvements for the purpose of use of the premises. The landlord for the same purpose decided to not increase the rent of the premise for a period of five years. However, the landlord had died the next year and the new landlord increased the rent of the premises. He also denied paying for the improvement undertaken by the tenant. It may be determined that under the tenancy agreements there is always the implied term for the tenant to claim for the improvements so carried out on the premise occupied by him. At the time of leaving the premises he is required to be repaid for the expenses so undertaken by him. Therefore, the new landlord is obligated to pay back the tenant for the improvements undertaken by the tenant. (Meyer, 2010)

2.3: Evaluate the effect of different terms in the given scenarios

Case 5: Accordingly under the present case the applicability of the condition is to be studied. The policy form presented before the acquiring the policy contained the questions regarding the details of the car. The car had been claimed for in the past years for the purpose of theft. However, when the policy form was filled the same was kept hidden. When an investigation was conducted it was found about the claim. The term so breached is directly related to the purpose of the contract. As the term is important to the performance of the contract then the term will be regarded as a condition. Therefore, the breach of the term is essentially the breach of the condition leading to the breach of contract. The company may thereby, breach the contract for the breach of contract. (Andrews, 2011)

Case 6: As per the facts of the case it may be determined that the policy form contained a series of questions that inquired about the details of the car. Two such questions were regarding the previous claims so made in the last five years and the originality of the parts. The two terms were not answered correctly. When an official investigation had taken place it was found that the car did not contain the original parts and the previous claims existed for the car. It may be said that the terms so contained were for acquiring the policy and may be considered as conditions. As these terms were not answered correctly it will be regarded as misrepresentation. A misrepresentation is a statement that is false in nature. As the misrepresentation of the condition grievously affects the performance of the contract it will be considered as a breach of the contract. Therefore, the company is allowed to void the contract as the condition has been breached. (Richards, 2006)

Task 3

3.1: Explain the similarities and differences of liability in tort with contractual liability using an example

The differences that exist for the liabilities under the two types of legislations are as follows:

• The liability arising under the law of tort is from the breach of a right against the society wherein the wrong does not occur against a specific person but anyone in the society whereas the right so breached under the contract is against a specific person. (Vettori, 2007)
• The damages under the law of tort may be quantified according to the situations arising under the breach whereas the damages under the contract are according to the breach of the contract and the consideration involved.
• The motivation behind the breach of right under tort is to be considered whereas the same is not considered under the breach of right under the contract.
• The relationship between the parties under tort is not defined whereas the relationship between the parties is defined under the contract.
• The elements considered under the tort are for the extent of liability but he elements under contract are considered to determine the validity of the contract.
• The elements considered under law of tort are that of causation an remoteness of damage whereas the elements considered under the contract are of offer, acceptance, and consideration. (Bell, 2013)

3.2: Explain the nature of liability

The nature of liability under law of tort for negligence may be defined according to the breach of the duty of care. The duty of care so present is to be carried to by everyone present in the society. He duty of care exists against the society to maintain the safety and security of the society. The duty of care may be breached for one of the reasons such as the ignorance, carelessness or forgetfulness. The duty of care when breached leads to the breach of a right that a person holds under the society. The damage so arising from the breach should be measured in terms of economical, physical or psychological loss. The driver on the road is required to consider the safety of the people walking by and the cars driving by. (TAN, 2008). According to the case of Donoghue v Stevenson it was determined that when the product is supplied in the market the direct and indirect users should be considered as much. This established a responsibility on the part of the manufacturers to provide safe products while considering the possible consumers as well as the direct consumers. Lord Atkin determined that the manufacturer would be responsible for the loss so suffered by Mrs Stevenson being the indirect consumer of the sub-standard product.

According to the case of Caparo Industries, it was determined that while considering the extent of liability three principles are required to be considered such as the remoteness of damage, causation and proximity. The remoteness of damage is the effect of the wrong so committed on the damage so done. The causation establishes the direct or indirect relationship between the wrong and the damages so caused. The proximity determines the possibility of having a relationship between the wrong and the damage so taken place. If the wrong so committed could foresee the damage then the duty of care was required to be undertaken. (Cooke, 2007). The types of defences that may be applied in the case of tort of negligence are that of contributory negligence, minor negligence and volenti non-fit injuria. The contributory negligence lays down the aspects of the defendant as well as the claimant were participants in the damage so committed under the wrongful act. The claimant may only be able to claim for the amount as owed by the defendant for his negligence. The minors are excused from the negligence as they are considered as not having the developed understanding of the outcomes of the actions undertaken by them. Whereby, the person has voluntarily waived off the duty of care then they wont be able to claim for the damages so caused.

3.3: Explain how a business can be vicariously liable

The vicarious liability is considered to be a liability for the person that is performing the task and not the actions of oneself. The liability arises because the task to be performed by the party is for the benefit of the party delegating the task. Such a type of liability mostly exists under the relationship of an employer and the employee. The vicarious liability may not exist if the act to be performed is illegal or the manner in which it is achieved is illegal. The employer will only be responsible for the wrongs so committed during the performance of the official duties and not personal acts. The employer is required to maintain the premises according to the  health and safety  standards prescribed under the Health and Safety at Work etc. Act. The equipment shall be standardised and the cleanliness shall be maintained. The water provided shall be purified and the sanitation facilities shall be of standard. According to the Occupier’s Liability Act the occupier should maintain the premises for the safety of the visitors and non-visitors. The trespasser shall be considered while evaluating the safety requirements. Accordingly, if the premises are unsafe at any spot the same shall be determined by putting up a notice at a place on the premise that is easily accessible by every person. (Morgan, 2011)

Other relationships wherein the vicarious liability may apply are that of partnership, agency and master-servant. According to the rules of vicarious liability the person delegating the work is liable for the actions of the performer. Therefore, as the partners perform for the benefit for each other they shall share the liabilities so arising as well. It is assumed that for most part of the day the servant carries out task for the benefit of the master, thereby making the master liable for the actions of the servant. An agent is hired specifically for the performance of a certain task that benefits the principal. Therefore, the principal is liable for the actions as undertaken by the agent on his behalf. (TAN, 2008)

Task 4

4.1: Apply the elements of the tort of negligence and defences in the given business scenario below:

Case 7: According to the case study presented, the liability for the doctor as well as the hospital is to be determined. A person was suffering from chest pains and breathing difficulties. The person on approaching the hospital found that the doctor was not available for check up but on contacting the nurse it was told to him that he would be provided with the over the counter medicines. On going home he took the medicines. He next day however, he died from a toxic mould present in his house. The liability so arising for the death of the patient is to be derived in the present case study. It may be noticed that the doctor had committed negligence of professional nature. The professional negligence could be said for not having conducted the regular check up before prescribing the medicines to the patient. As a result a professional negligence is committed for which the doctor as well as the hospital will be liable for having employed the doctor during the performance of the profession the wrong had been committed. (Giliker, 2010)

The defence for the death of the patient may be discussed through the analysis of the but-for test for the burden of liability. The but-for test suggests that the cause and effect between the wrong and the damage should prevail in order to establish the liability for the certain act. Herein, the professional negligence had been conducted however the same did not result in the death of the patient. The cause of death was determined to be something other than that of the professional negligence. Therefore, the extent of liability for the hospital and the doctor would be for the professional negligence and not for the death of the patient. (Cooke, 2007)

4.2: Apply the elements of vicarious liability in the given business scenarios below:

Case 8: According to the facts of the case, driver was an employee of the company. The driver was asked to pick up a client on behalf of the company. When the driver reached the airport the flight had not arrived thereby, he decides to have a few drinks. While he was still drunk he received the client and started to head back to the hotel as asked. As he was still drunk he was driving under influence for being intoxicated. The intoxication affected his judgement and he caused an accident that damaged and injured the car and the client respectively. The liability for the client is to be established under the present case. The driver was driving under intoxication but he did it while performing the official duties. According to the case of Rose v Plenty, the driver was not performing so far away from the scope of employment as the accident occurred while performing the job. Therefore, the liability for the damages and the injuries would be the liability of the company and not the driver. (Morgan, 2011)

Case 9: According to the facts of the case, it may be determined that the employer has the responsibility to ensure that the health and safety standards are maintained at the premises. However, to ensure the same the supermarket had outsourced the duties to another company. One day when an employee was loading or unloading the truck he slipped and the plank skipped while injuring another employee present at the premises. The supermarket states that it has not liability for the said injuries to the employee as the duty was delegated to another company. As per the case of Ready Mix Concrete it can be stated that wherever two employers govern the performance of one  employee relations  the employer having the control to regulate the same is responsible for the wrong so committed. If the same had happened under the supervision of the supermarket, it will held liable for the actions and the injuries so caused by the employees while performing the official tasks. (Bell, 2013)

Conclusion

A contract has to be standard in its form by including elements of common basis. Each contract is expected to have the basic elements such as the offer, acceptance, consideration, capacity, and intention. The rights so breached may be present under the existing relationship or that which are present under a given society. If the relationship exists it would be contractual in nature and if not then it will be a wrong under the tort. The right already is existent be it contractual or under tort.

References

Books:

Andrews, N. (2011). Contract law. Cambridge: Cambridge University Press.
Meyer, L. (2010). Non-performance and remedies under international contract law principles and Indian contract law. Frankfurt am Main: P. Lang.
Collins, H. (2008). Standard contract terms in Europe. Alphen Aan Den Rijn: Kluwer Law International.
Vettori, S. (2007). The employment contract and the changed world of work. Burlington, VT: Ashgate Pub.
Giliker, P. (2010). Vicarious liability in tort. Cambridge, UK: Cambridge University Press.
Cooke, P. (2007). Law of tort. Harlow: 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.

Unit 5 acnb contract liabilities assignment discussed relationship between two or more parties for a determined purpose including an exchange of goods or services is known as a contract, We are posting free Locus units solutions so scholars can explore the our Assignment Help in UK and get review the quality of our work.