ASPECT OF CONMTRACT Essay

sagacity the essential elements of a valid ar stay on in a contrast contextP1.1. Explain the importance of the essential elements required for the lickation of a valid slim There atomic number 18 several important elements in appearrank to form a valid exact.1. Offer and Acceptance.- In coordinate to create a valid tailor , there must be a uprightnessfull disco biscuit by angiotensin converting enzyme take upy and lawfull acceptance of the identical by the opposite party2. Intention to Create Legal Relationship- In grammatical encase,there is non much(prenominal) intetion on the part of partyes, there is non stipulation. Agreements of favorable and domestic nature do not contemplate judicial traffic .Case Balfour vs Balfour (1919)3. Lowfull Consideration. Consideration has been defined in various ways Acourding to Blackst nonpareil Consideration is touch on give by the party needing to other in other words of Pollock Consideration is the price for wi ch the hollo of the another is brought .consideration is cognize as quid pro-quo or something in return4. Capacity of Parties The parties to an system must be competent to embrace. If either of the parties does not hire the efficiency to contract , the contract is not valid Accourding the following persons atomic number 18 incopetent to contract a -miners, b-persons of unsound mind c-person disqualifield by low to wich they ar compositors case5. Lawfull Object. The object of an agreement must be valid . Object has postcode to do with consideration it means to purpoase or design of the contract. This when one and only(a) hires a shack for use of a gambling house , the object of the contract is to run a gambling house6. Legal formailities An oral get hold of is a perfectly valid contract espect in those cases where writing modification etc,is required by some statute, in India writing is required in cases of sale, mortgage lease and gift on immovable propriety, negociab le instrument etc7. Certainity of gist Acourding to class 29 Agreement the meaning of wich is not Certain or undecided of organism made sure be deflect8. Posibility of death draw upalty If the act is imposible in itselfe physic each(prenominal)y or de jure if firenot be enforced at law. For manikin Mr A agrees with B to discover treasure by magic. SUCH agreements is not enforceableP1.2. Discuss the impact of diverse types of contractA contract is an agreement betwixt two parties that must allow an offer , an acceptance and a consideration .There ar a novelty of different types of contracts used for different purposes, in addition, certain types of contracts whitethorn be to a greater extent popular in one jurisdiction than in another Bilateral and unilateral implied, viodable,executory and oral contractat are among the common types of contracts used end-to-end the world Bilateral contracts gather up the majority of the contracts drafted. A bilateral contract consi sts of tho parties who are under an obligation to do something or refain from doing something. For physical exertion a contract for the sale of goods is a bilateral contract. The buyer crys to purchase the product and, in turn, the seller promises to supply the productP1.3. study price ic contract with reference to their meaning and yield The frontiers of an agreement may be so vague and indefinite that in reality there is no contract in existence at all. (Scammell v Quston (1941)). The presence of a vague term ordain not evoke fatal in every case. The contract itself may pass on each disputes nigh the operation of the agreement bottom of the inning be resolved. (Foley v Classique Ltd (1934)). A court goat ascertain the price of a contract by reference to a trade custom or a racecourse of previous dealings amidst the parties. (Hillas & Co Ltd v Arcos Ltd (1932)). A meaningless term which is subsidiary to the main agreement pile be ignored and the rest of the con tract enforced. (Nicolene Ltd v Simmonds (1953)). Express cost, are the details of a contract which make been specifically concord in the midst of the parties. (Harling v Eddy (1951)). There are a number of render term that feature a type contract such(prenominal) as exemption clauses, liquidated wrongfulnesss clauses and price variation clauses. This terms rout out effect a contract. For example liquidated damages clause can affect the term in a contract, because it lays down the occur of damages that will be payable in the tied(p)t of a breach of a contract. Cancelation charges are an example of a liquidated damages clause. Implied terms, represent addition terms that are implied into an agreement. Those can be by custom (Hutton v Warren (1836), by common low (The Moorcock (1889)), or by statute. The most common being the sale or supply of goods Act 1979.Be able to unbuttoned the elements of a contract in job situations P2.1.Apply the elements of contract in a given b usiness scenarios In the business scenario 1, at an auctioneer sale the call for conjures by an auctioneer is an invitation to treat, the statements are offers. The auctioneer selects the highest bid and acceptance is completed by the fall of the hammer. (Payne v Cave (1789)). advert a forthcoming auction sale does not amount to an offer to hold it. (Harris v Nickerson (1873)). An offer can be revoked at whatever beat in the first place the acceptance but it will only be effective when the oferee learns about it, and it is not necessary that the oferor himself should tell the oferee that the offer has been revoked. (Dikinson v Dodds (1876)). The case study shows that the offeror was Montblanc auction and arouse, Miss Kaur the oferee shown the object to bid for pen fountain at Montblanc auction, willing to travel to Manchester for it, and she also shown intention to buy pen fountain from Harry but she did not distinct 100%, thereof, even so though the offer was expressed to be open until later on lunch break, such offer can be revoked before the end of the time limit, because Miss Kaur did not agree with the offer. A promise to keep an offer open will be binding if it can be enforced as a separate contract.A legally binding option will be created if the oferee adds some consideration in return for the offerors promise to keep the offer open. (Mountford v Scott (1975)). In the case study, Miss Kaur could brace paid a dethronement in advance to make sure she could still rent the pen fountain. Consideration was shown between Harry and Miss Kaur, and each side promise something to the other party. This was not the case with the Mountblanc Auction, even if the auction for the pen line of battle divinatory to be open, the parties did not enter into a consideration. Intention, the low is not concern itself with purely domestic or social arrangements. The parties must have intended their agreement to have legal consequences. In the first case Mountb lanc auction showed the intention to offer for bid the pen fountain, and this was mention in the list of items to be auctioned, but because of one or another primer coat this was cancelled. On the other hand Harry shown the intention to wait until afterward lunch for Miss Kaur, but because it wasnt whatever scripted contract between them, he decided to sell his pen fountain with a better price of 1000, breaching the informal contract that he had with Miss Kaur. In the context of contract low, Miss Kaur cannot take any action once against the auctioneer for the expense of her travel to the auction and she cannot take any action to Harry for not selling the fountain pen to her.Business scenario 1, shows that the agreement between Charles, owner of a house, and Murphy, who suppositious to make renovation in the house by a set amount of money (50.000), at a specific date. Secondly, consideration is shown in the case study where both parties agree to give something in return. Ch arles agreed to pay 50.000 for the house renovation, and Murphy agreed with the sum signly. Intention, is shown when Murphy asked for an increase in salary in order for the job to be done in time, even if Charles agreed initially, than he turn his back on the offer that he made, respecting only the legal terms from the contract. In this situation Murphy cant make any legal action against Charles. Capacity, in this case both parties where capable of fulfilling their commitments. Charles paying for the servicing, Murphy capable of doing the service. Genuineness of cons cent appeared between parties, when the initial contract was formed. Here was the time for Murphy to argue for an increase in salary, and not at a later date. Legality element of the contract is present, because it is nothing illegal or contrary to public policy.P2.2. Apply the law on terms in different contractsA standard form contract (sometimes referred to as an adhesion or b oilerplate contract) is a contract betw een two parties, where the terms and checks of the contract are set by one of the parties, and the other party has little or no ability to dispense more favourable terms and is thus placed in a take it or leave it position. Examples of standard form contracts are policy policies (where the insurer decides what it will and will not insure, and the language of the contract) and contracts with government agencies (where certain clauses must be included by law or regulation). For example MetLife insurance company, has the terms of the contract are contained in a written document, the parties will be quite clear about what they have agreed to and this is believably to minimise the possibility of disputes a later stage. For example MetLife can make a contract of a life cover with a minimum of 7, in which the invitee would know the standard terms and condition stipulated in the contract. It would be very time- consuming to negotiate individual terms with every customer, because the co mpany is offering a standard service to a large number of great deal. Standard form, business-to-consumer contracts fulfil an important efficiency role in the mass distribution of goods and services.These contracts have the potential to reduce motion costs by eliminating the need to negotiate the many details of a contract for each instance a product is sold or a service is used. However, these contracts also have the ability to trick or abuse consumers because of the un commensurate bargaining power between the parties. For example, where a standard form contract is entered into between an ordinary consumer and the salesperson of a international throne, the consumer typically is in no position to negotiate the standard terms. As example MetLife representative often does not have the authority to substitute the terms, even if either side to the transaction were capable of understanding all the terms in the fine release. These contracts are typically drafted by collective lawyers far away from where the underlying consumer and vendor transaction takes place.The danger of evaluate unsporting or unconscionable terms is greatest where these artful drafters of such contracts present consumers with attractive terms on the visible or shopped terms of most interest to consumers, such as price and quality, but then(prenominal) slip one-sided terms benefiting the seller into the less visible, fine print clauses least likely to be read or unders overlyd by consumers. For example a customer of MetLife can be assured for shot protection, but there are only a specific separatrix that the company may cover the client. In many cases, the consumer may not even see these contracts until the transaction has occurred. In some cases, the seller knows and takes benefit of the knowledge that consumers will not read or make decisions on these unfair terms.(Standard Form of Contracts, 2014).P2.3. Evaluate the effect of different terms in given contracts In the busine ss scenario 4, terms stipulated in the contract are the payment for the research assistant (25000) and the functional hours, witch in this case are whatever hours are necessary to complete the assignments given to her. Section 1 of study Rights Act 1996 that in fact requires the employer to state the amount of hours worked by the employee. Disciplinary procedures had to be insert in the terms of a contract, where, for example Miss Y had to receive a number of warnings that will be given to her before suspension or chemise, for her behaviour of erosion trousers and not a dress, on the morning of 2nf June. Because of this terms of the contract, Miss Y can appeal to grievance procedures that relate to complains in regard to any aspect of the employment with witch the employee is not satisfied. In this case dismissal for asserting the right is mechanically unfair and there is no service requirements by reason of section 104 of the ERA 1996. (Riches, S. & Allen, V. 2011).Under the Employment Act 2002, Miss Y can claim honorarium for unfair dismissal. She can also claim because of the Working Time Regulation (SI 1998/1833),where is stipulated that the employee has a maximum of 48 of work a week, a daily rest of period at least 11 consecutive hours in 24 hours, and in work rest break of 20 minutes for those working(a) more them 6 hours daily. Miss Y, could also claim compensation and health and Safety at Work Act 1974, if the court finds that she receives medical discussion for depression due to the employment environment.Understand principles of indebtedness in neglectfulness in business activitiesP3.1. Contrast indebtedness in tort with contractual liabilityTort liability arises out of a civil wrong, for example, people who do business, restore proprietor or in a union are liable for the torts committed by themselves and for torts committed in the course of the business by their agent and/or partners. However, one may avoid tort liability for the acts of business associates if they operate their business as a corporation or a limited liability company. Thus, the choice of entity is too perceived to have potential benefit if one is concerned about limiting ones tort liability. Regardless of what type of business organization a person is liable for torts committed by himself, if for example he/ she is driving the company vehicle and are involved in an accident the other party is liable if he/she heedlessly operated the vehicle whether he/she operate as a corporation, partnership or sole proprietor. (Business Law, 2014). Contractual Liability, appears when a corporation or a limited liability company may protect ones personal assets should the doer incur a significant contractual liability from the business operation.For example, a expression contractor signs a contract to construct an office building for a business client and fails to meet the contractual deadline, the business client holds the contractor liable for conseq uential damages profits lost for the time the client is not able to occupy the new building. Particularly in the construction area, contractual liability may exceed simply the contract price. So long as one does not personally batten down the contract of the business entity, his or her personal assets, assets owned outside the corporation or LLC, are protected as the corporate operator should not be personally liable for the corporate debts, contracts and contractual liabilities. Often, however, people dealing with corporations demand that the principals of the corporation personally guarantee the contracts. (Business Law, 2014). P3.2. Explain the nature of liability in slacknessLiability of negligence appears when a claimant is able to prove that the suspect owed him a legal responsibility of care the defendant was in breach of their duty and the claimant suffered injury or loss as a result of the breach. (Riches, S. & Allen, V. 2011348). For example a producer of goods may be liable to a consumer for loss and damage caused by his risky product under the tort of negligence. A consumer must establish the producer owed him a duty of care. In Donoghue v Stevenson (1932) case, House of shapers established the principles that a manufacturer was a duty of care to all persons who are likely to come into contact with his goods. The breach in duty occurs if the fallowing factors such as the like hood that the damage or injury will be incurred, the serious of any damage or injury, the cost and ease of fetching carefulnesss and the social need for the activity. (Balton v Stone (1951). In the final part the claimant has to prove that he suffered damage if this damage was caused by a negligent misstatement as in the case of Hedley Byrne & Co Ltd v ogre and Partners Ltd (1963), or it was consequent upon foreseeable physical injury or damage to property such in the case of Junior Brooks Ltd v Veitcho Co Ltd (1982).P3.3. Explain how a business can be vica riously liableEmployers can be held vicariously liable for acts of negligence or omission on the part of their employees in the course of employment even if the employer did not authorise or was unaware of the acts in question. To mount a successful defence, an employer must demonstrate either that the employee was not negligent or that the employee was acting in an individual capacity unrelated to the business of the employer. In some circumstances employers may also be liable for the misdemeanours of their freelance contractors or workers employed by a third party, such as an agency. For example, this applies where the employer authorises the wrongful act or had overall responsibility that could not be delegated.For example an employee that works for a catering agency, who does wrong doing at one of the clients that the agency is sending him to work for, the agency can be creditworthy for. The main deciding factor as to which employer has the responsibility for a sub-contract or or agency worker is that of control. The employer who gives direction and instructions for the work to be conducted will usually be the one to bear responsibility for misdemeanours carried out during the course of that work. If more than one employer can be identified as having control over the work of the employee then the principle of dual vicarious liability may apply. This is a principle introduced by the decision of Lord Justice May in the recent case of Via systems (Tyneside) Limited v Thermal Transfer (Northern) Limited & Others. The case involved compensation for a flood at a factory which had been caused by the sub-contractor of a sub-contractor. In his ruling, Lord Justice May decided that more than one employer could be subject to a claim and that the amounts awarded should be split equal unless it could be clearly demonstrated that one party bore more of the responsibility than the other. This courageous decision overturned the principle established in Laugher v Po inter in 1826 that only one employer could be held vicariously liable. (vicarious Liability, 2014).Be able to apply principles of liability in negligence in business situationsP4.1. Apply the elements of the tort of negligence and defences in different business situations The tort of negligence is concern with certain kinds of careless conduct with cause damage or loss to others. As explain in task 3.2. There are three factors to consider. Firstly duty of care, if this duty is break and if the other party suffered any damages. In the Business Scenario 5 it is presented the fact that a UK ship was taking oil in Sydney harbour, spilling oil in the water, and because of a spark it set fire to a berth witch was at 200 yards distance. The case also shows that safety management were taken but does not explain how. On the one hand, it can be argued therefore that the duty of care of the UK ship was broken, because the ship supposed to take more precautions on the duty of care and harm an y neighbour. The defendant has break their duty of care because the likelihood of an accident such as this could be foreseen.On the other hand, it can be argued that the defendant can claim res ipsa loquitur, witch mean that the facts spick for themselves, and it can be prove to court that the UK ship took enough safety precaution to avoid any accident, therefore the defendant would not be seen as negligent. The condition must be satisfied for res ipsa to come to figure out are in case of the event which caused the accident must have been the defendants control, witch in this case can be argued that it was, and the accident must be in such nature that it would not have occurred if proper care had been taken by the defendant, witch again could be argued that the ship took enough safety precaution. The damage that occur after this accident was that the claimant suffered damaged on his wharf, thereby he has to prove in court that this damages was made as a consequences of the UK s hip actions in the harbour. In the case of Business Scenario 6, the negligence was made by Shell, because they had failed to provide protection goggles to bell while he was working in spite of the fact that this was not a normal practice at the firm. Negligence was also made but the employee Bell, because firstly he supposed to protect himself especially because he had lost one eye, and he could have been more precaut.The breach of duty was made by Shell, because the job that Bell has implied vehicle maintenance, and while working with materials such as metals, the company should have provided protection for Bell under the Consumer Protection Act 1987. Bell, can therefore claim compensation for its employee negligence towards him, because he suffered injury while working at Shell Company. P4.2. Apply the elements of vicarious liability in given business situations Low states that an employer is liable for damage caused to another person by his employee, while the employee was carin g out his work. The employer is liable even though he was not in any way at fault, and this rule even if seems to be unfair for the employer, it is based upon the law and policy. Employer and employee are regarded as associated parties in the business in which both are engaged. In the Business Scenario 7 and 8, Alf and Amos Bridge breach their contractual duties, therefore because they were acting at work, the employer is automatically consider guilty as well by the court.References1. Business Law, uncommitted at http//pullman-wa.com/law/businessLaw.htm, Accessed on 12.03.2014 2. Riches, S.& Allen, V. (2011), Keenan and Riches BUSINESS LAW, tenth (ed), Pearson London 3. Standard form Contracts, Available at http//faircontracts.org/what-are-standard-form-contracts, Accessed on 15.03.2014 4. Vicarious Liability , Available at http//www.uktrainingworldwide.com/BB/VicariousLiability.htm Accessed on 13.03.2014