Vicarious Liability in Tort and Title VII Law: A Comparative Analysis

The provided content consists of academic articles, book chapters, and online resources related to vicarious liability under tort and Title VII law. The works discuss various aspects of vicarious liability, including the sex exception in torts, implementation and implications of China's Labor Contract Law, and the role of insurance in tort liability. Additionally, the content touches on contract theory, democratic contract law, and the elements of a valid contract.

Aspects of Contract and
Negligence of Business

TABLE OF CONTENTS
INTRODUCTION...........................................................................................................................1
TASK 1............................................................................................................................................1
1.1................................................................................................................................................1
1.2................................................................................................................................................2
1.3................................................................................................................................................3
TASK 2............................................................................................................................................3
2.1................................................................................................................................................3
2.2................................................................................................................................................4
2.3................................................................................................................................................5
TASK 3............................................................................................................................................6
3.1................................................................................................................................................6
3.2................................................................................................................................................7
3.3................................................................................................................................................8
TASK 4............................................................................................................................................8
4.1................................................................................................................................................8
4.2................................................................................................................................................9
CONCLUSION................................................................................................................................9
REFERENCES..............................................................................................................................11

INTRODUCTION
A contract can be termed as a legal document or agreement wherein two or more parties
are involved and agrees to the terms and conditions biding the particular contract. There are
several aspects of a contract and the negligence on part of one of the party can cause the breach
of the same. This research report is conducted in regards to present a clear and brief overview of
all the imperative elements of an agreement that forms a contract. Main purpose of this study is
to present the readers with a clear understanding of aspects of law of contract and tort and the
skills needed to apply them in business situations (Arlen and Carney, 2012). Learners will get a
better understanding of several terms of contract and implication of the same in diverse
circumstances.
TASK 1
1.1
A contract can be termed as an agreement between two or more parties that willingly agree to the
terms and conditions laid in it. All agreements cannot be termed as a contract but all contracts are
definitely agreements that bide the two of them. Therefore, following illustrated elements are
imperative to form a valid contract: Offer and acceptance: It demonstrates that a person is giving offer to another and when
it is accepted by the person, offer becomes promise. For instance, when A is ready to sell
his house, for this purpose, he proposes the offer to B and the offer once accepted,
becomes an agreement (Andrews, 2015). Consideration: It can be termed as the amount or money that is being paid with regard to
the made promise. A contract without consideration is termed to be void and it is
unlawful. Each party must receive something with respect to the thing that is being sold. Mutual consent: In order to form a valid and legal contract, it is essential to have the
consent of both underlying parties. It means that the mutual consent shall be free from all
sorts of coercion, misinterpretation, mistakes and undue influences (What are the basic
requirements for making a valid contract?. 2004). Capacity of parties: A contract will not be termed as valid if one or two of the people are
minor, dishonoured and unsound. From the above cited example, it can be said that both
A and B should be above the age group of 18 years and they must be in the state to make
a contract then only, it can be termed as valid.
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 Acceptable by law: Each and every agreement which is acceptable and enforceable by the
law can be termed as a valid contract. Further, all the points illustrated here shall be
present in order to make a legal contract (Hong, 2015).
1.2
There are several kinds of contracts as per the English law which has its consequent
impact on both the parties. The same has been enlisted below with certain examples: Unilateral contract: Herein, one party agrees or promises to pay a specific amount, either
to a person or a group of people on the fulfilment of certain terms and conditions. The
difference here is that the offerer cannot be sued in case if he does not abide by the
promise. For instance, if John lost his cat and he post an advertisement in the newspaper
about that lost cat and promises to reward a sum of $100 to the person who brings him
back (Verheyen, 2012). The neighbour has bought the same but John refuses to pay now.
Therefore, it can be termed as a unilateral contract where the neighbour cannot claim the
similar amount or file case against John. Roger v. Board of Road Com'rs for Kent country
1947 justifies a detailed explanation of the same. Here, the defendant placed a snow fence
in the geographical area of Plantiff's husband with a mutual understanding that same is
being removed by the end of winter. The defendant forgot to remove the same and
Plantiff's husband was dead in an accident. Bilateral contract: It can be termed as a contract where both the parties are obliged to
fulfil their part of agreement. For instance, in case of sale of a furniture, seller delivers
object to the party but concerned party failed to make payment of the same. Therefore, it
can be termed as bilateral contract (Twigg-Flesner, 2013).
 Face to face and distance contract: In the former case, presence of both the parties is
essential at the time of contract. There is less chances of any miscommunication and
misinterpretation and all the terms and conditions can be understood in a better way
(Henthron v Fraser). In contrary to this, distance contract is a kind of agreement made on
telephonic calls and through internet. Here, when a person makes online purchase, he/she
can terminate the contract at any time according to his will.
1.3
When a contract is formed between two parties, it is based on several terms and
conditions. The same has been demonstrated as shown below:
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 Express terms and Implied Terms: These are the terms and conditions laid by
perspective parties while the formulation of contract. These acts as a guideline which
needs to be followed at the time of any unforeseen event or breach of contract. The terms
and conditions of contract are either in the form of written agreements or orally
discussed. For instance, at the time of sale of a car, there are several conditions that are
imperative for a particular contract (Stone and Devenney, 2014). Contrastingly,
warranties are the short term conditions that can be claimed by the claimant for particular
time limit. However, in implied term, the specifications of the contract are not expressed
by aggrieved parties. These are implicit by the law and is understandable by concerned
parties. Exclusion clause: It can also be termed as an exemption clause where the breaching
party is liable to pay all damages. All terms and conditions of contract shall be made
clear between both the parties and everything shall be disclosed at the time of formulation
of contract (Sterk, 2012). There are mostly three types of exclusion clause which are
time, truth and limitation.
 Innominate terms: The terms and conditions that were laid by parties in the past but
unable to be recognized by court while resolution of disputes, these warranties and
conditions are termed as innominate terms by the tribunal.
TASK 2
2.1
As per the current case scenario, Ivan is claiming to buy the HND law book which was
present in the display outlet. Herein, Todor has laid an offer which has consequently being
accepted by Ivan. This demonstrates that the element of offer and acceptance is present but it
does not tells that the said contract is valid. This is so because Todor has already made a
commitment to Carl, which further cannot be terminated by the bookseller. Moreover, in order to
make a contract valid, it is essential that free consent of both the party is present which same
cannot be seen in the current scenario. Todor refuses to sell the book to Ivan and along with that
there is no written and oral contract made between the concerned parties (Sherwin, 2015).
Additionally, from the above discussion of various terms and conditions needed to form
an effectual contract, it can be said that the terms and conditions that were present at the time of
initial contract are termed as innominate. Moreover, Ivan cannot propose any claim against
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Toder for any damages or loss caused by the breach of contract because the agreement between
the Toder and Carl has already been made a day before which shall be considered relevant. It is
also an example of Unilateral contract wherein the seller promises to sell the book but could not
able to make the proposed transaction (Poole, 2016). Therefore, Ivan cannot claim the book
neither any charges can be availed by him for any damage or loss caused by the breach of
contract.
2.2
There are enormous terms present in contract and their presence is essential to form a
valid agreement. If any of the term fails and the contract is more likely to affect the contract
leading to breach of the same. The following terms provide a more clear and deep insight of it in
a leading contract: Conditions: It can be termed as the major clause of a particular contract and the breach of
conditions illustrates that the innocent party can terminate the contract at any time.
Poussard v Spiers case provides a better understanding of the same. Madam Poussards
entered a contract wherein she was entitled to perform as an opera Singer fpr three
months. Five days before the initial opening she got ill and cannot perform on the stage
and Spiers hired another singer in order to replace her. This laid to breach of condition by
Madam Poussards which caused Spiers to end the particular contract. Warranties: Herein a contract cannot be ended by the breach of warranties as these are
the minor terms that formulate a contract. It can be adjusted on behalf of certain
payments and prices but cannot end the contract (O'Sullivan and Hilliard, 2016). With
reference to the Bettini v Gye case Bettini was sponsored as an opera Singer by Gye for 3
months and she was provided training for the same. She missed the rehearsal for certain
reasons and Gye terminated the contract. The defendant cannot end the contract on
breach of warranty as it is not he root cause.
 Innominate Terms: This approach helps to identify and classify warranties and
conditions that are missing from the contract. Additionally, assist in clarifying the amount
of benefit that the concerned party is deprived to avail in lieu of breach of contract. Citing
example from the Hong Kong Fir Shipping V Kawasaki Kisen Kaisha case. It explains
that the claimant ended the contract when the ship stopped functioning for 15 weeks and
claimed that the watercraft isn't seaworthy (Morgan, 2015). Later, the court termed it an
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an innominate term instead of addressing the conditions and warranties itself. Out of the
2 years contract the 15 weeks of defect cannot deprive the defendant from getting entire
benefit (McKendrick, 2014).
2.3
Exclusion or exemption clause is illustrated by several organizations and authorities
which specifies that the party is not liable for any cause, damage or non performance of any
event. This is an unfair strategy used by many companies that cause disadvantage to the innocent
party. For this purpose several laws have been enacted which restricts the use of such clause and
promote fairness in operations. According to the present case scenario John went to the park
where he purchased a ticket at 50P to sit on the bench for an hour. This represents that John
entered into a valid contract where the element of offer and acceptance are present along with the
consideration paid to avail the benefit (Hunter, 2015).
Meanwhile the chair collapsed and John got injured and he claims for the damages that
has caused by the chair in the park. The local council refuses to pay the amount to John as they
have already included a clause in the ticket which states that “ the authority is not liable to refund
or pay amount on behalf of any injury or damaged caused due to failure of hired equipment.”
John was not aware of this clause as he did not review it before. Therefore it can be termed as an
exclusive clause whereby the council states that they are not liable to pay any amount to the
aggrieved party. Moreover, there is presence of inclusion clause which demonstrates that the
exemption clause present at the back of the ticket is printed in small fonts which is not readable
(Hillman, 2013).
Therefore, it can be concluded by saying that John's claim to the injuries is correct and
the council is liable to pay the amount for damages caused by him while sitting on the prescribed
bench.
TASK 3
3.1
Contractual and tort liability are diametric to one another wherein the former represent
the involvement of two parties that lays certain terms and conditions which is unable to perform
by any one of them and leads to breach of contract. Contrary, in case of tort liability, negligence
on the part of any one party may cause damage or harm to the other and for which compensation
shall be made. The following table provides a more deep insight of the two terms:
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Basis of comparison Contractual Liability Tort Liability
Underlying
relationship
Herein a mutual contract takes
place between the two parties
which agrees on the terms and
conditions that is valid and legal
under the English Law (Hesselink,
2015).
The relationship between two
parties is developed by the law
and negligence caused on the part
of litigator. With reference to
Donoghue v Stevenson case that
depicts the negligence on part of
the manufacturer that caused
injury and damage to Mrs
Donoghue of part of consuming
faulty product.
Cause of Obligation The terms and conditions of
contract determines the obligation
on the part of both the parties.
Herein the parties are obliged by
the legal laws.
Element of consent Both the parties enter into a
contract with mutual agreement
and they share some specific
amount of profit and liability in
regards with the laid contract
(Hersch and Viscusi, 2014).
From the above definition it is
clear that element of free consent
is missing. It is more likely to
occur when the other party
demands for compensation or
claim against defendant in context
with the safety, health or damage
caused on behalf of negligence.
Compensation The defendant is likely to bear loss
for the part for which he failed to
comply by.
The amount of damage caused by
the claimant shall be paid by the
litigant. As in the case of Tesco v
Constable where the company has
to compensate for the amount of
damage caused by railway
constable.
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3.2
Negligence occurs due to lack of care or failure of exercise on behalf of the defendant
which caused damage or loss to the claimant. The injured party can avail the compensation by
proving the following enlisted points:
 The legitimate owned him a duty of care;
 Breach of duty on part of defendant;
 Failure caused damage to the claimant (Chamallas, 2014).
Duty of Care: According to the English law, it refers to the amount of care that every
person is responsible to take in several circumstances. Breach of duty results in the amount of
compensation paid by the defendant in regard to the damage or injury caused by the another
party. In order to avail the required amount for the loss, it is necessary for the claimant to prove
that breach of duty is taken place. Stating example from Donoghue v Stevenson case, negligence
on part of manufacturer caused him to compensate for the same.
Breach of duty: It is more likely to arise when the defendant is unable to meet the
standard of care that is accepted by law. The task does not end over here, the claimant also needs
to prove to the prudent that breach of duty has also taken place due to negligence on behalf of
defendant. Citing examples from the case Nettleship v Weston demonstrates that breach of duty
was taken place on part of driver in regards with not maintaining the reasonable care (Gallagher
and et.al., 2014).
Damage caused to claimant on breach of duty: In order to claim compensation by the
claimant, it is essential that any loss, harm or damage has being caused to the aggrieved party.
For this purpose it is essential that the following two points shall be proved true in front of court:
 Impairment has been caused on behalf of breach of duty
 The damage was not to distant from breach.
3.3
An act wherein employers are held responsible for any misconduct or exercise caused by
their subordinates can be termed under vicarious liability. In such situations, respective
businesses is likely to close down its operations until the prescribed problem is resolved. For
instance in case of an accident wherein the truck of Tesco company dozes off another car, here
both the drivers and the CEO of concerned organization are liable to bear the losses that have
arisen in course with the accident (Hart, 2016).
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A superior is most likely to be liable in case of any tortuous act on behalf of subordinates.
There are many cases that take place in an organization such as discrimination and harassment of
employees. No matter whosoever is responsible for the conduct of such act but the employer's
shall be held liable in this case. Therefore, many company's are taking actions to remove these
act from the company's by taking corrective measures such as checklist method. As per the Lister
v Hesley Hall limited case, the employers of the said organization was held vicariously liable due
to sexual abuse by some other employee. The superiors demonstrated that these acts were
prohibited and was not found at the times of their employment (Davies, 2016).
The judgement were found in favour with the employer, this is so because the superiors
can only be held liable if they have not taken any considerable actions against such acts. Though
the employers of said organization have laid precautionary steps beforehand they were free from
this case.
TASK 4
4.1
As per the English law, Negliegence is the amount of loss of care caused on part of one
party that harms or leads to damage caused by the another. As discussed above elements of
negligence constitutes of 3 components that are duty of care, breach of duty and damage caused
on breach of duty. As per the given scenario, David was driving at a speed of 35 MPH which
exceeded the 25 MPH as laid by the council of street zone. Therefore, it can be said that
negligence was found on part of David as he did not lay emphasise on the given instructions.
This further resulted in breach of duty of care which harmed several other parties. Although, in
order to save the child which was playing on the street, David without looking over his shoulder,
swerves into another lane and hit the Telephone pole. Therefore, Duty of care was present but
negligence on part of David caused damage to the owner of TeleCo and Kelvin as well.
Herein, David is responsible and also liable to pay compensation to both the aggrieved
party due to lack of reasonable care on part of defendant (Chamallas, 2014). The owner of The
TeleCo can claim the damages that caused by the accident and can avail the amount of loss from
David. Moreover, defendant is likely to compensate to Kelvin on behalf of injuries occurred to
him. Therefore, it can be said that all the elements of negligence were present in the current case
scenario and the defendant cannot escape from the situation and is likely to bear all the losses
that were caused in regards with loss or lack of standard care on part of David.
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4.2
Vicarious liability can be termed as the the amount of loss that the third party has to bear
in regard with any act of mischief caused by the other. In context with the business entity, the
employer has to bear the amount of loss on behalf of any act done by its employees (Buchan,
2013). According to the current case, the head chef of Regent Hotel that is Colin hits its co-
worker with a frying pan due to his uneven attitude. Roger is severely injured and claims against
the injuries caused to him at workplace. In this situation, vicarious liability cannot be applied
because Colin intentionally hits Roger and the management was not involved in misshapen.
Therefore, employer of the said organization cannot be held liable for the tortuous act of
its employees because this took place due to the personal fight amongst the employees. Though
roger can directly avail the amount of damage caused to him from Colin and can sue him in the
court as it is a criminal act. In context with the vicariously liabilities, it is essential that the
employer is being the part of the mischief and loss (Arlen and Carney, 2012). The action of
Colin cannot be transferred to the owner or employers of Regent Hotel as they are innocent and
are not aware of this act. Though the action has taken place in the organizational premises but all
the elements of a vicariously liabilities are missing in the present situation. Therefore, Roger
cannot claim against the management although he can avail the amount of damages from Colin
his head chef.
CONCLUSION
The above report can be summarized by stating that it is essential to have all the elements
of a contract present in order to form a legal agreement. Further, various terms of contract have
been analysed in this study that form a legal and biding impact on the contract. Several other law
terms such as conditions, warranties and innominate have been briefly discussed along with their
examples. At the end, a clear overview of nature of negligence and vicariously liabilities have
been illustrated in the present report (Andrews, 2015). Various case studies have also been
highlighted to give a clear understanding of all the elements and terms of contract.
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REFERENCES
Books and Journals
Andrews, N., 2015. Contract law. Cambridge University Press.
Arlen, J. and Carney, W. J., 2012. Vicarious liability for fraud on securities markets: Theory and
evidence.
Arlen, J., 2016. Economic Analysis of Tort Liability for an Imperfect World.
Buchan, J., 2013. Contract Law. In Franchisees as Consumers (pp. 69-84). Springer New York.
Chamallas, M., 2014. Two Very Different Stories: Vicarious Liability Under Tort and Title VII
Law. Ohio St. LJ. 75. pp.1315.
Chamallas, M., 2014. Vicarious Liability in Torts: The Sex Exception.Valparaiso University Law
Review. 48(133).
Davies, B., 2016. Contract Law, by Mindy Chen-Wishart, Oxford, Oxford University Press,
2015, 615 pp.,£ 32.99 (paperback), ISBN 978-0-19-968916-3. The Law Teacher. pp.1-3.
Gallagher, M. and et.al., 2014. China’s 2008 Labor Contract Law: Implementation and
implications for China’s workers. Human Relations. pp.0018726713509418.
Hart, T., 2016. Recent Cases on vicarious liability. CILEX Journal.
Hersch, J. and Viscusi, W. K., 2014. Assessing the insurance role of tort liability after Calabresi.
Law & Contemp. Probs. 77. pp.135.
Hesselink, M. W., 2015. Contract theory and EU contract law. Amsterdam Law School Research
Paper, (2015-39).
Hesselink, M. W., 2015. Democratic contract law. European Review of Contract Law. 11(2).
pp.81-126.
Hillman, R., 2013. Principles of Contract Law, 3d (Concise Hornbook Series). West Academic.
Hunter, H., 2015. Modern Law of Contracts.
McKendrick, E., 2014. Contract law: text, cases, and materials. Oxford University Press (UK).
Morgan, P., 2015. Vicarious liability for group companies: the final frontier of vicarious
liability?.
O'Sullivan, J. and Hilliard, J., 2016. The law of contract. Oxford University Press.
Poole, J., 2016. Textbook on contract law. Oxford University Press.
Sherwin, E. L., 2015. Formal Elements in Contract and Fiduciary Law.Available at SSRN.
Sterk, S. E., 2012. Strict liability and negligence in property theory. University of Pennsylvania
Law Review. pp.2129-2156.
Stone, R. and Devenney, J., 2014. Text, cases and materials on contract law. Routledge.
Twigg-Flesner, C., 2013. The Europeanisation of contract law: current controversies in law.
Routledge.
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Verheyen, W., 2012, March. Options in Contracts of Carriage and Contractual Liability. In The
maritime law and policy international postgraduate research conference 2012.
Online
Hong, C., 2015. What are the elements of a contract?. [Online]. Available through:
<http://www.hillhouse.com.au/legal-question/what-are-the-elements-of-a-contract/>.
[Accessed on 6 October 2016].
What are the basic requirements for making a valid contract?. 2004. [Online]. Available
through:
<http://www.hkclic.org/en/topics/businessAndCommerce/setting_up_business_in_Hong_
Kong/making_a_business_contract/q1.shtml>. [Accessed on 6 October 2016].
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