Aspects Of Contract Essay

Task: 1.1: Explain the importance of the essential elements required for the information of a valid contract? Offer A valid offer identifies the bargained-for exchange between the parties and creates a power of acceptance in the party to whom the offer is made. The communication by one party known as the offeror to the another party called the offeree b) Acceptance To constitute a contract, there must be an acceptance of the offer as noted above. Until the offer is accepted, both parties have not assented to the terms and, therefore, there is no mutual assent. Offeree in a manner invited or required by the offer. Whether an offer has been accepted is a question of fact. The effect of acceptance is to convert the offer into a binding contract. To form a contract it is necessary that there is a party capable of contracting and a party capable of being contracted with on the other side. In other words, to enter into a valid, legal agreement, the parties must have the capacity to do so. Consideration No contract will exist without sufficient consideration due to agreement with the other two party has agree with the term and condition as well. Mutual Assent There must be mutual assent or a meeting of the minds on all negotiated terms between the parties and on all the essential elements in terms of the contract to form a binding contract. Intention to create legal relation In some jurisdictions, the parties must also have a present intent to be bound by their agreements. It is not necessary that the assent of both parties be given at the same time. Also, it is not necessary that communication of the assent be simultaneous. Task 1.2: Discuss the impact of different types of contract? A bilateral contract is an agreement between at least two people or groups. A bilateral contract is enforceable from the get-go; both parties are bound the promise. For example, one person agrees to wash the other’s car in return for having his/her lawn mowed. Acceptance of the offer must be communicated for an agreement to be established. A unilateral contract is one where a party promises to perform some action in return for a specific act by another party, although that other party is not promising to take any action. Acceptance may take effect through conduct and need not be communicated Task 1.3: Analyse terms in contracts with reference to their meaning and effect? Terms of contract set out duties of each party under that agreement. Generally, the terms of a contract may be either: Wholly oral, wholly written and partly oral and partly written. Terms are to be distinguished from statements made prior to the contract being made. Express terms When a contract is put down in writing, any statement appearing in that written agreement will usually be regarded as a term, and any prior oral statement that is not repeated in the written agreement will usually be regarded as a representation, due to the assumption Implied term These are terms that courts assume both parties would have intended to include in the contract had they thought about the issue. They are implied on a â€Å"one-off† basis. Two overlapping tests have been trade used to ascertain parties’ intention. Business efficacy test: terms must be implied to make contract work. There are terms which the law will require to be present in certain types of contracts (i.e. not just on â€Å"one-off† basis and sometimes irrespective of the wishes of the parties). Task 2.1: Apply the elements of contract in given business scenarios? Offer can be seen from the case when Tam’s college offers admission to it student who under take s the vocational qualification. Acceptance can also be seen from the student when they agree to bound by the school regulations. Consideration is when the student promise to act in certain way. This is particularly important where the agreement involves a promise to act in a particular way in the future. Task 2.2: Apply the on terms in different contracts? Conditions These are the most important terms of contract. Serious consequences if breeched. Innocent party can treat contract as repudiated (and thus is freed from rendering further performance of contract) and can sue for damages. Description in contract of term as â€Å"condition† is not necessarily determinative of question whether term is condition. Courts tend to search for evidence that parties really intended term to be such. Task 2.3: Evaluate the effect of different terms in given contract? Conditions are so important that without them one or other of the parties would not enter into the contract. Consequently, to make a condition  falsely, or to breach a condition, is viewed so seriously that the wronged party will be entitled to treat the contract as void, voidable or at least rescinded. Where the term is a warranty, the wronged party will only be able to seek monetary damages for any loss suffered. Task 3.1: Contract liability in tort with contractual liability? The non-breaching party has a duty to mitigate damages. If it does not do so, its damages will be reduced by the amount that might have been avoided by mitigation. In employment contracts, the employee is under a duty to use reasonable diligence to find a like position. Liquidated Damages A liquidated damages provision will be valid if (i) damages (ii) the amount agreed upon was a reasonable forecast of compensatory damages. If these requirements are met, the plaintiff will receive the liquidated damages amount even though no actual money damages have been suffered. If the liquidated damages amount is unreasonable, the courts will construe this as a penalty and will not enforce the provision. Task 3.2: Explain the nature of liability in negligence? The primary function of the Law of Torts is to provide remedies to claimants who have suffered harm, loss, or an infringement of rights. The harm includes physical injury to persons or property, damage to persons’ reputations or financial interests, and interference with persons’ use and enjoyment of their land. However, just suffering such a loss does not necessarily mean the law will provide a remedy; a claimant must show that the person committing the tort owed them a duty of care and that the tort caused the loss. Task 3.3: Explain how a business can be vicariously liable? The company is liable when the manager is under the control of the employer that the employer tell the employee how to the work and when to the work. the work that the employee does forms part of the general business of the organisation. There is a contract of service between the organisation and the employee. Daniels v Whetstone Entertainments Ltd [1962] A nightclub bouncer forcibly ejected Mr Daniels from the premises following a disturbance. Once outside, the bouncer assaulted him. Task 4.1: Apply the element of the tort of negligence and defences in different business situations? Negligence is an important tort that covers a wide range of situations where persons negligently cause harm to others. In order to succeed in an action for negligence, it is necessary for a claimant to establish the following three elements: 1. The defendant owed the claimant a duty of care. 2. The defendant breached that duty of care. 3. Reasonably foreseeable damage was caused by the breach of duty. Task 4.2: Apply the elements of vicarious liability in given business situations? Employers are vicariously liable for Employee acts authorized by the employer Unauthorized acts so connected with authorized acts that they may be regarded as modes (albeit improper modes) of doing an authorized act. There is normally rarely an issue as to whether a given act falls within the first category The difficult cases involve assessing the connection between the act and the employee’s employment. Bazley established that the connection between the employment and the tort contemplated in the second branch of the Salmond test had itself to be addressed in two steps: The Court must first examine â€Å"whether there are precedents which unambiguously determine on which side of the line between vicarious liability and no liability the case falls.† If the prior case law does not clearly suggest a solution, then the Court is to resolve the question of vicarious liability based on a policy analysis directed at ascertaining whether the employer’s conduct created or enhanced the risk that the tort would occur. Task 4.3: Discuss three methods you can use to apply elements of tort properly in a work a place? CONTROL One of the traditional explanations of vicarious liability is that the employer should be vicariously liable since the employer controls the activities of her employees. The relationship between the parties As duties in tort are fixed by law, the parties may well have had no contact before the tort is committed. Unliquidated damages The aim of tort damages is to restore the claimant, in so far as money can do so, to his or her pre-incident position, and this purpose underlies the assessment of damages. Tort compensates both for tangible losses and for factors which are enormously difficult to quantify, such as loss of amenity and pain and suffering, nervous shock, and other intangible losses.. LIST REFERENCE Atiyah P S — Introduction to the Law of Contract (Clarendon Press, June 1995) ISBN: Beale/Bishop and Furmston — Contract — Cases and Materials (Butterworth, October 2001) Cheshire/Fifoot and Furmston — Law of Contract (Butterworth, October 2001) ISBN: Cooke J — Law of Tort (Prentice Hall, May 1997) ISBN: 0273627104