Law

Formation of Contract (Assignment One)
Part One
What is a Contract and when is one made
As defined by McConville (n.d., p.1), a contract is a legally binding agreement between two parties. This means that the rights and obligations of the parties under a contract may be enforced by the courts. The courts may compel performance of contractual obligations by the party in default or, more commonly, may award damages for breach of contract. There are four basic elements that must be present for a contract to be formed. These include the offer, acceptance, consideration and intention to create legal relations.

Explain the Different Types of Business Agreements and the Importance of Key Elements Required for the Formation of a Valid Contract.

In business agreements exist to ensure the smooth running of transactions and somewhat insure the business from any inconveniences. Due to that there are various types of business agreements, with each of them dealing with a particular aspect of business.

One form of business agreement involves the supply of goods. This is the most common form of contract in business, as laid out by the Sales of Goods Act, whereby sellers transfer property in goods form to the buyers in return of money consideration otherwise referred to as the price.  There is also the supply of work and material agreement, which is a contract that facilitates the supply of work and material, for instance in business transactions where a contractor is putting up a building.

There are also to enable business people to buy their products on credit these are referred to as the supply of goods on credit agreements. In the same line, the financial service agreements enable business people to use a variety of financial services including bank loans and insurance. These are contracts with details of what might be lawfully claimed from an insurance company in relation to the liability of a company to its employees and customers. In addition, other business agreements concern resources like land and employees.

According to Dransfield, a valid contract contains key elements like the agreement, consideration, intention, capacity, legality, genuineness of content and form. (Mallor, 2001) stresses that an agreement that fails to specifically elaborate these key terms showing what the offeror is willing to do and what he asked in return for his performance is unlikely to be considered an agreement at all. The purpose of the definiteness of terms in an agreement indicates the offerors intent to the contract, whereas indefiniteness and lack of specificity points to the fact that the parties are still negotiating and have not yet reached an agreement.

Part Two
Application of the Rule of Offer and Acceptance and Considering the Impact of New Technology.
Furmston (2001, pp. 30-37) points out that there can be no acceptance and therefore no agreement unless there was an offer in the first place. An offer exists whenever the objective inference from the offerors words or conduct show that he intend to commit himself legally, without further negotiations, to the terms he is proposing if the offeree accepts. In this case, Roland, Samuel and Diana were the offerors whereas David was the offeree. The three offerors demonstrated an intention to commit themselves legally and without further negotiations to the terms that they were proposing to David. But it is to Dianas offer that David first assents and this makes the agreement complete.

However, as this agreement is sealed, David is yet to receive the offers from both Samuel and Roland which were posted earlier on that very Saturday. Supposing both Samuel and Roland used the e-mail to send their offers and David got them on time, they still cannot make any claim because David didnt communicate his acceptance. Poole (2001, pp. 48 60) argues that acceptance is not effective as a general rule unless it is communicated to the offeror. Acceptance occurs when the offerees words or conduct give rise to objective inference that the offeree assents to the offerors terms. And this is what happened between David and Diana, when he accepted to sell her the vase at  400.

Importance of Contracting Parties having the Appropriate Legal Capacity to enter into a Binding Agreement.

If Roland, Samuel and Diana were each only 14 years old, then by no means would their agreements be legally binding, particularly because they are less than 18 years of age and the agreements itself is not over what could be defined as a necessity. As pointed out by Dransfield (2004, p. 733) the law places restriction on who should make contracts and the purpose for this is to protect the individuals concerned. There are restrictions on the ability of minors from entering into contracts.
Terms of Contract

Part Two
There prominent issue that arises in the contract that Fred and Ethel made with Photo Limited is that of limited liability. Such like clauses do not exempt or absolve a party from liability but will instead place a limit or a ceiling on the maximum liability.  Taylor (2007, pp139) cites the example of  Ailsa Craig Fishing v Malvern Fishing (1983) a limitation clause limited liability to 1 000 pounds, so that the damages could be less than but not more than 1 000 pounds, even though the actual lose caused was assessed at 55 000 pounds.

In the case of Photo Limited, the company offers Fred and Ethel  50 in damages, howsoever claimed. It is prudent that they accept the  50 offer, since Photo Limited is going to invoke it as a defense in case Fred and Ethel decide to sue. It worth noting that such clauses of limitation are not regarded by the courts with the same hostility as clauses of exclusion this is because they must be related to other contractual terms, in particular to the risk to which the defending party may be exposed, the remuneration which he receives and possibly also the opportunity of the other party to insure.

David and Janet on the other hand, enough have grounds to secure damages if they sue Fairview Hotel it is after David has tripped on a piece of loose carpeting and baldly twisting his knee that together with Janet, they find a sign of the door of their room informing them that the hotel is not liable for any loss, damage or injury to guests or their property, howsoever caused. David and Janet can successfully argue that the notice was not given to them at a timely manner.

Taylor (2007, pp130) points out that a notice of terms must be given before or at the time the contract is made. In a similar case Olley v Marlborough Court Ltd. (1949) a contract was formed at the hotel reception desk and the hotel owner could not rely on an exemption clause that was only notified to the guest when she entered the bedroom and saw a notice on the wall. When faced with the question of notification of terms the most important step is to establish when the contract was formed.
Importance of the Rule of Intention (Part Three)

There are two agreements here, between Robert and his friend Steve. One concerns the buying of tissue roll and milk, which they agree that Steve will always do the former whilst Robert will do the latter. Notably, they do not put this agreement on paper. However, when they are in pub celebrating the agreement they make another agreement which states that Steve will buy three pints of beer for Robert whereas Robert will buy a pint of beer and a portion of fish and chips for Steve. This second agreement is written down clearly stating that either party may be sued for a breach of his obligation and it is signed by both of them. Robert fulfils his part of the agreements while Steve does not.

The arising question is whether and if so, to what extent Robert would succeed if he were to sue Steve. Notably, the first agreement between Robert and Steve, which involves the purchase of toilet roll and milk between them, is an unenforceable contract even though it meets the basic legal requirements for a contract, considering the age of the parties and their intentions, it however may not be enforceable because theres lack of proof that they made such an agreement in the first place (Mallor, 2001). It is unlike the second agreement, which was written and they both signed agreeing that either party may be sued for a breach of his obligation.

Therefore, Robert can successfully sue Steve for breaching the agreement. Robert made an offer of buying a pint of beer and a portion of fish and chips for Steve and in turn Steve agreed to buy him three pints of beer. Steve accepted to enter the contract and that demonstrated his intent to the contract. His intent as an offeror is judged by what his words, actions and the circumstances signify about his intent. Mallor (2001) observes that if a reasonable person familiar with all the circumstances would be justified in believing that the offeror intended to contract, a court would find that the intent requirement of an offer was satisfied even if the offeror himself claims that he didnt intend to contract. And on this premise, Robert would successfully sue Steve for breaching their agreement.

Importance of the Rule of Consideration of the Parties of Agreement (Part Four)
An obligation under a contract can only be enforced if the party who wants to enforce that obligation has given or promised something in return. All parties to a contract must provide consideration and if no consideration has been provided by a party to the contract, then the contract will only be enforceable if it is made as a deed. If the provided consideration has some value then the courts will not normally be concerned with the fairness of the contract or the adequacy of that consideration. The person to whom the promise is made must have provided consideration and must do, give or promise something in return for it. Something that has been done, given or promised prior to the formation of the contract will not count as consideration. McConville (n.d., p. 2)

In cases where no consideration has been provided the law has introduced various ways to make certain promises binding in those circumstances. In this case, Albert is bound to pay Bob, John and Helen the extra amounts he had promised to pay them, because if they sued him they would invoke the doctrine of promissory estoppel as their defense, which could help argue that Albert relied on the promise to influence their conducts and that Albert must have had the intention that the other parties would rely on his promise.

This is possible because Albert badly wanted to auction the house on time and therefore was keen on making certain that the work is accomplished on time. Besides, it is arguably true that he made the promise to avoid the stress of rearranging the auction. Even though the doctrine of the promissory estoppel does not create a cause of action, it may be used as a defense to an action brought by a party in a bid to enforce their legal rights McConville (n.d., p.2). It is therefore prudent for Albert to pay Bob, Job and Helen, the extra money he had promised them.

Albert and Ted
Basically, contracts are often concerned with the enforcement of promises. The case between Ted the gardener and Albert can hardly be considered a consideration because there was no agreement between them. Ted just chose to work on Alberts lawn during his free time and then agreed with Albert that his pay would be 75 pounds. Even though Ted began working before agreeing with Albert, his is no longer a consideration but a contract. Therefore, Albert should pay Ted the 75 pounds.  Poole (2001, pp 48-80) reiterates that in spite of the disappearance of the subjective approach to the making of contracts the law frequently the intention of the parties as a test of resolving difficulties. If Alberts intention of entering into this agreement was to merely lure Ted into working on the lawn before the deadline, on the premise that Ted had began the job without the agreement, then Albert will be imputed to pay damages because after they had reached an agreement, Ted actually did the job.

Tortious Liability (Assignment Three)
What is meant by strict liability
 As underscored by Scheb (2008, pp 82), the common law consists of criminal acts or omissions known as actus reus and the mental element referred to as mens reus. The offences of strict liability, as Tufal (n.d.) points out, are those crimes which do not require mens reus with regard to at least one or more elements of the actus reus. This means that the defendant need not have intended or known about that circumstance or consequence and, liability is said to be strict with regard to that element.
According to Schafer and Schonenberger (1999), the courts do not have to set any level of due care under strict liability, because the injurer has to bear the cost of the accident regardless of the extent of hisher precaution (p 603). However, Tufal argues that strict liability is imposed only when theres a presumption of law that mens reus is required before a person can be guilty of a criminal offense and this presumption is particularly strong in cases where the offense is truly criminal in character.
Strict liability allows a person injured by, for instance, a defective or an unexpectedly dangerous product to win compensation from the maker or seller of the product, regardless of the fact that the manufacturer or the seller was actually negligent. Mathews  Mathews (2009, p. 44)

Part Two
Assess the liability in tort, if any, of Keith, his employer, Pub One and Two and their respective employees who served Mike the alcohol.

Tortious liability arises from the breach of a duty primarily fixed by law and this duty is normally towards persons in general and is redressed by an action for un-liquidated damages. The duty fixed by the law does not necessarily mean that it is fixed by statute but by a duty, which the courts have recognized. The nature of the duty varies from one tort to another. For example, where negligence is alleged, the duty is to take reasonable care whereas in the case of trespass, the duty to the person is to refrain from infringing another persons bodily harm. The Origin and Character of Tortious Liability (Anonymous, 2004)

Keith is liable to paying damages to Alison. According to Bigelow (1997, p. 285) if a person, say A, by his negligence causes damages to another person, called B, without Bs fault then A is liable, provided that A owed to B the duty to exercise reasonable care.  While driving, Keith had a responsibility to ensure not only his safety but also that of other motorist. Therefore, by accepting to pick his call while driving, Keith breached his duty to exercise reasonable care to Alison and other motorists.  And in that sense, he is also liable to paying damages to Gary for his missing his flight to go to Japan to secure a job.

Analyze the Practical Applications of Particular Elements of the Tort of Negligence.
The tort of negligence involves more than just careless behavior. Negligence comprises of three elements, which are duty, breach and damage. The damage aspect is at times broken down into the components of causation and remoteness. But it can safely be said that all these elements are interrelated and the confusion between them is often inevitable. Worth noting is that a complainant has to show all the three elements before heshe can succeed in the tort of a negligence.

For example, if Gary fails to show that he was owed a duty of care by Keith, it doesnt matter whether the Keith has been careless or not, there would be no liability. Likewise, if theres no breach theres no liability even if, as a matter of law, it is a duty situation. This means that Keith could have caused the accident due to his carelessness, but if the circumstances surrounding the accident do not point to the fact that he actually breached his duty of care to Gary, then he would not be liable. Similar arguments relate to the damage aspect, if theres no damage, theres no liability in negligence.

Discuss the Nature of the Employers Liability with Reference to Vicarious Liability and Health and Safety Implications.

There are two forms of vicarious liability. One is in which a person is held liable for acts of another who has mens reus whereas in the other one, a person is held liable for the act of another where the act of the other amounted to an offense of strict liability. An example of this is where a merchant is held liable for the sale of an article forbidden by the law, whereas it was his employee who actually sold it. Leigh (1982, p. 1).

In this case, as observed by Leigh (1982, p. 1), the court recognizes the nexus between the employer and the employee the employer is liable even though the employee was personally at fault and conceivably, even if he was acting in breach of instructions. Therefore, Keiths employer is also liable even though heshe was ignorant of the fact that Keith was driving at the time that went through. Keith should have asked his employer to call later, probably after he had reached his destination. But since he didnt and in answering that call, he brought about an accident and inconvenience to Gary, the employer is liable.

On the other hand, the owners of the premise of Pub One are not liable to Mikes accident in Pub Two. As Mathews and Mathews (2009, p.36) attests, in a slip or trip and fall case, one measure of whether a business has been reasonable in its protection of its customers is how and how often it checked the conditions of its floor. If a business has a very spotty inspection record or produces no record at all, then a plaintiff has a strong argument that it was negligent and thus legally responsible for having failed to monitor the safety of the premise.

Pub One could have been liable to paying Mike damages if he had got the accident at their premises as a result of their negligence, as shown above, a wet, slippery floor. What Pub One did was to serve Mike drinks as per his demands and arguably, they were used to serving such like heavy drinkers at the pub without seeing such accidents.

In the same vein, Pub Two is also not liable to paying Mike damages. Mathews and Mathews (2009, p.36) are of view that in every slip or trip and fall case, a persons behavior is part of the issue of who was careful or careless. Mike does not break his back because he slipped on a slippery floor or because of the poor lighting in the pub. The accident occurs when he is trying to get off his stool and then loses balance and falls. He is probably too drunk after taking 16 drinks at Pub One. This exempts Pub Two from paying any damages to Mike.

In sum, both the law of contract and the law of tort play a crucial role in making sure that business transaction are carried out in a manner that it fair to both parties involved. The extensive nature of these laws see to it that almost any form of disagreement that could arise in a business transaction is adequately addressed.