Aspects of Contract

This document discusses the essential elements of a valid contract, including offer and acceptance, intention to create legal relationship, and certainty of meaning. It also explains the difference between unilateral and bilateral contracts, as well as the concept of express and implied terms in contracts. The document provides examples and case studies to illustrate these concepts.

Aspects of Contract

Table of Contents
1.1 Essential Elements:.............................................................................................................................4
Different essential elements of a valid contract:.....................................................................................4
1. Offer and Acceptance......................................................................................................................4
2. Intention to Create Legal Relationship............................................................................................4
3. Certainty of Meaning.......................................................................................................................4
Offer:.......................................................................................................................................................4
Acceptance:.............................................................................................................................................5
Case: Carlill v carbolic smoke ball co [1893]...............................................................................................5
Fact:.........................................................................................................................................................5
Held:........................................................................................................................................................5
Intent:......................................................................................................................................................5
1.2 Unilateral and Bilateral Contracts:.........................................................................................................6
1. Unilateral Contract:.............................................................................................................................6
2. Bilateral Contracts:..............................................................................................................................6
1.2.1 under Seal (Deed) and simple contracts:........................................................................................6
1.2.2 Written contracts and verbal contracts:.........................................................................................6
Written contract:.....................................................................................................................................6
1.2.3 Face to face and Distance Selling Contract :...................................................................................7
Face to face contract:..............................................................................................................................7
Distance selling:.......................................................................................................................................7
Written contract :....................................................................................................................................7
Contract by conduct:...............................................................................................................................7
1.3 Express terms and Implied terms:.........................................................................................................8
TERM:......................................................................................................................................................8
KINDS OF TERMS:....................................................................................................................................8
Implied Terms:.........................................................................................................................................8
Express Terms:.........................................................................................................................................8
1.3.1 Conditions, Warranties and Innominate terms:..............................................................................8
Conditions:..............................................................................................................................................8

Warranties:..............................................................................................................................................8
Innominate terms:...................................................................................................................................9
2.1essential elements to the scenario:........................................................................................................9
Scenario:..................................................................................................................................................9
3. Exclusion clause :...............................................................................................................................10
4. Warranties:........................................................................................................................................10
5. Conditions:.........................................................................................................................................10
2.3 remedies are available to Eric :............................................................................................................10
1. Cash DAMAGES..................................................................................................................................10
(a) Methods of Computing.................................................................................................................11
(1) Expectation intrigue.....................................................................................................................11
(2) Reliance intrigue...........................................................................................................................11
3) Restitution intrigue........................................................................................................................11
3.1 Contrast liability in tort with contractual liability:...............................................................................12
1. Result of agreement..........................................................................................................................12
2. Result of law......................................................................................................................................12
3.2 nature of liability in negligence:..........................................................................................................12
Negligence:............................................................................................................................................12
3.3 business can be vicariously liable:.......................................................................................................13
Vicarious liability:..................................................................................................................................13
Professional negligence:........................................................................................................................14
4.1. Element of Tort of Negligence............................................................................................................15
4.2 Application of the Law.........................................................................................................................15
References:............................................................................................................................................16

1.1 Essential Elements:
Different essential elements of a valid contract:
1. Offer and Acceptance.
In order to create a valid contract, there must be a 'lawful offer' by one party and 'lawful acceptance' of
the same by the other party.
2. Intention to Create Legal Relationship.
In case, there is no such intention on the part of parties, there is no contract
3. Capacity of parties. The parties to an agreement must be competent contract.
According the following persons are incompetent to contract.
(a) Miners, (b) Persons of unsound mind, and
(c) persons disqualified by law to which they are subject.
3. Certainty of Meaning.
According to Section 29,"Agreement the meaning of
which is not Certain or capable of being made certain are void.
The three elements for the valid contract are:
• There must be Offer and acceptance
• There is intent for making the legal relation
• There must be Consideration
Offer:

• Offer is made by the party for making the valid contract.
• One party has to make offer to the other party.
• The person who makes offer is known as the offeror and the person who accepts the offer is
known as the offeree.
Acceptance:
• The offer which is made by the other party is accepted by the offeree.
• The acceptance of the offer must be communicated to the offeror.
• The acceptance must be clearly communicated to the offeror.
• For the valid contract the contract must be accepted by the party.
• For instance: any goods which are shown in the window of the shop is also an offer and one
who purchase that good then it is automatically acceptance of the offer.
Case: Carlill v carbolic smoke ball co [1893]
Fact:
Manufacturer of patented cure for the influenza advertised that any person who use this cure will not
be suffer from flu if any person suffer then he will pay $100. The plaintiff used the patented cure and he
suffers from flu and he claimed for $100.
Held:
Court held that the mere advertisement is the general offer and the manufacturer of the patented cure
has to pay the reward to the plaintiff.
Intent:
There is intention for creating the legal relationship by the parties The intention of both the parties
must be free consent. The consent of both parties should not be taken by any force and fraud. If the
consent is given under any influence then the contract will not be valid.

1.2 Unilateral and Bilateral Contracts:
1. Unilateral Contract:
The easiest way to understand unilateral business contract is by analyzing the word 'unilateral.'
Unilateral contracts involve only promisor.
2. Bilateral Contracts:
Bilateral contract is an agreement between at least two people or groups. Most business and personal
contracts fall into this category.
Bilateral Contracts involve both a promisor and a promisee.
1.2.1 under Seal (Deed) and simple contracts:
Contracts may be executed under seal (signed by the parties, witnessed and most importantly made
clear that it is executed as a deed - see below) or under hand (a 'simple contracts’ that is just signed by
the parties).
Firstly, simple contracts and under seal contracts have different limitation period An action founded on
simple contract cannot be brought after six years from the date on which the cause of the action
accrued. The limitation period for a contract under seal is 12 years.
1.2.2 Written contracts and verbal contracts:
In reality, the term ‘verbal contract’ actually refers to any contract that is expressed in words, and that
means all written contracts as well as those that have only been discussed. Though almost all contracts
are expressed in words, there are major practical differences between oral contracts and written ones.
To refer to a contract that’s only spoken about, it’s always best to use to the term oral contract.
Written contract:
• Under the written contract the terms and conditions are in the written form.

• These are used as evidence.
● It also make assurance that contract is existed in the offeror and offeree.
1.2.3 Face to face and Distance Selling Contract :
Direct selling should not be confused with terms such as direct marketing or distance selling which may
be describe as an interactive system of marketing that uses aone or more advertising nedia to generate
a measurable response and/or transaction at any location, with this activity stored in a database. Some
commonly known types of direct marketing and distance selling technique are telemarketing.direct
mail.and direct response.
Face to face contract:
• In this contract the terms and conditions are not in written form or oral form but it is on the face
to face.
● The contract will be terminated as soon as the conversation end unless there is specifically
mention that contract will accept in nears future.
Distance selling:
• These contracts are also known as the consumer credit contracts.
• It includes the online shopping, online booking of hotels and online booking of airlines
● This contract has been terminated if the agreement copy has not been provided by the party
and it also cancelled by the party at the discretion of them.
Written contract :
• Under the written contract the terms and conditions are in the written form.
• These are used as evidence.
● It also make assurance that contract is existed in the offeror and offeree.
Contract by conduct:
• It is the non- verbal contract in which the contract is made through the conduct of the parties.
● It is the implied agreement.

1.3 Express terms and Implied terms:
TERM:
A contractual term can be defined as ‘Any provision forming part of a contract’.
KINDS OF TERMS:
There are two basic types of Terms which are defined as under.
Implied Terms.
Express Terms.
Implied Terms:
Implied terms are the terms in which it has not been mentioned by either party that will nonethless be
included in the contract sense without that term.
There are two types:
1.Terms Implied by Statue.
2.Terms Implied by Courts.
Express Terms:
Express terms can be defined as the terms that have been specifically mentioned and agreed upon by
both parties at the time of making that contract and they can be either in oral or in written.
1.3.1 Conditions, Warranties and Innominate terms:
Conditions:
A condition is a major term of the contract which goes to the root of the contract. If a condition is
breached the innocent party is entitled to repudiate (end) the contract and claim damages.

Warranties:
Warranties are minor terms of a contract which are not central to the existence of the contract. If a
warranty is breached the innocent party may claim damages but cannot end the contract.
Innominate terms:
The innominate term approach was established in the case of Hong Kong Fir Shipping. Rather than
classifying the terms themselves as conditions or warranties, the innominate term approach looks to the
effect of the breach and questions.
2.1essential elements to the scenario:
Scenario:
Mrs. Kaur a keen fine watches she saw the notice of the auction of the art series of the fountain pen.
She goes for the auction in order the bid for the particular limited edition patron of the art series. The
auction was held for two days on the second day the auction of luxury pens was cancelled.
She went to the antique shop she found the same fountain pen she has come for the bid. The price of
the fountain pen is £1,050 but she was willing to pay for £ 800. Shopkeeper said to him he sell at the
£950 but Mrs. Kaur said to him that she think about it over lunch. At that Harry agreed that he will not
sold the goods to the other person. But when she came back she not found that fountain pen. Harry sold
it £ 1000 to another customer.
So there is an invitation to treat and there is open offer because she did not accept the offer.
• There was an invitation to offer by the notice of auction of the fountain pen.
• Mrs. Kaur goes to the auction for purchasing the fountain pen, so she gives response to the
invitation of offer.
• Shopkeeper made the open offer to the customers and kaur respond the open offer but she is
the offeree and did not accept the offeror.
So Mrs Kaur cannot claim for the damages which she suffers because of the invitation of offer , open
offer and in the second situation she did not accept the offer.

2.2 Law on terms to the scenario:
1.Express terms:
In employment contract there are various express terms which are:
The time period of the factory work is between the 10 am to 6 pm.
• Any person who is late by the 30 minutes then he/ she has the duty to inform.
2.Implied terms:
• According to the Employment rights act 1996 in Uk the wages is payable according to the 6.50 /
hour.
• According to the Employment rights act 1996 in Uk the wages is payable according to the 6.50 /
hour.
3. Exclusion clause :
• In private company pension is not available to the employees.
. Employer is not held responsible for any refreshments.
4. Warranties:
• All the employees are treated equally without any discrimination under the equality act.
• The entire minor problems are informed to the superior.
5. Conditions:
• The monthly payment has been made according to the attendance.
• Payment has been made accordance with the Employment Right Act 1996.
• Employees are under the obligation they have to sick leave paternity leave to the superior.
2.3 remedies are available to Eric :
There are two essential sorts of solutions for contract rupture: cash harms and impartial cures. This note
additionally quickly talks about the compensation reason for activity.

1. Cash DAMAGES.
(a) Methods of Computing.
(1) Expectation intrigue. The objective is to put the non-breaking party in the position it would have
been in had the contract been performed. This is the default measure of harms. Recipe: lost profits in
addition to coincidental/important harms short dodged costs
(2) Reliance intrigue. The objective is to put the non-breaking party in the position it would have
been in had the guarantees never been made
Restatements Sec. 349: rather than desire intrigue, harms can be processed in view of consumptions
brought about in get ready to perform or really performing less any misfortunes the rupturing gathering
can demonstrate would have been caused if the contract had been performed. To emphasize, the
rupturing party has the weight of proof to demonstrate offsetting misfortunes.
3) Restitution intrigue. The objective is to put the rupturing party back in the position it would have
been in had the guarantees never been made. Where this is impractical, then compensation spews any
out of line improvement.
Compensation emerges most specifically in halfway performed contracts. Restatements Sec. 373 applies
when the rupturing party has not finished execution and the non-breaking party looks for compensation
taking after contract end, (for example, on account of a losing contract, where the desire intrigue might
be more regrettable for the non-rupturing party). In those cases, the non-rupturing gathering can look
for any advantage gave on the breaking party. Case delineating the rule: Bush v. Canfield (not alloted).
Restatements Sec. 374 applies when the rupturing party has not finished execution and looks for
compensation. In those cases, the breaking gathering can recuperate any advantage gave on the non-
rupturing party less the harms from the break. In any case, this default can be bested by a sold harms
arrangement permitting the non-rupturing gathering to hold a few or the majority of the advantage.
Cases delineating the rule: Neri (UCC), Britton, Vines

Restatements Sec. 371 determines the equation for registering compensation: either the sensible
estimation of the advantage presented (measured by substitution cost) or sum the profited gathering's
quality has expanded.
3.1 Contrast liability in tort with contractual liability:
Tort: tort is an act which damages, Loss or injured to the body of an individual, or the legal rights of the
individual by the person who is under the duty of statute. The person who do wrong will sue in the civil
court and also gives the injunction for stop him for doing any repetition of this act. In tort the damage
which is suffered by the party are compensated. Tort is arise when any party violated the duty which is
arise ion tortfeasor
Contract liability: contract liability is exists when the contract binds the parties together. Contract
liability is based on the damage which is suffered by the party.
The main differences between them are :
1. Result of agreement.
2. Result of law.
The party who file the suit against the defendant for taking back their loss, defendant is under the
obligation of the court also pay the damage which the plaintiff suffers. The plaintiff have not right to file
suit for giving the punishment by the court.
The liability under the contract is taken by the voluntarily by the parties. But in tort the liability is not
taken by the party voluntarily.
The damages which is awarded under the contract is that the party want get back their position in the
contract because he suffered loss form the defendant.
3.2 nature of liability in negligence:
Negligence:
Negligence is that in which one person harm the other person accidently without any intention.
Negligence is also a tort. The main elements of the negligence are:
1. Committed tort

2. without any intention
3. Accidently
The main aim of the negligence is to compensate the person who suffers any loss, damages by the
negligence of the person. Any claimant who files a suit for compensation have to prove there three
elements:
1. When the accused do wrong must owe a duty of care to one or more than one person.
2. Person breach his duty of care.
3. Claimant suffers any loss, damage or any injury.
1. Duty of care: any person who is become liable for the negligence, the duty of care must present.
Some examples of duty of care are:
• The manufacture of the product is under the duty of care for the consumers who use their
product.
• An employer is also under the duty of care for their employees.
• Case: Donoghue v Stevenson: In this case the D and S went to the café and take a ginger beer
bottle, in this they found the snail. Thus D fall ills and D files suits against the manufacture then court
held that manufacturer is liable under the tort of negligence because he is under the duty of care.
• These three tests which proved that there is relationship between them.
1. The harm which is caused is reasonable foreseeable.
2. It is necessary that there is a proximity relation between the claimant and the defendant.
3. According to all circumstance it is proved that the duty of care which is imposed upon the
defendant is fair.
Injury: The plaintiff has to prove that wrong is committed by the defendant which will harm or caused
damages to the claimant. If it is proved that the claimant suffer damages under the duty of care of the
person then plaintiff files suit and claimant is compensates by the defendant.
3.3 business can be vicariously liable:
Vicarious liability:

Vicarious liability is that in which the person is liable for the wrong is committed by the third person .The
principal is held responsible if any act or omission is done by his agent. The employer is liable for the act
done by his employee at his workplace and the work is also related to the workplace. So the superior is
always responsible for any act or any wrong done by his subordinate. The essential elements in the
vicariously liability is:
1. Vicarious 2.Liability
Some employers are not aware that they are held responsible under the tort of negligence in the course
of their employment. But under the “respondent superior” doctrine is for the employer which makes
responsible for the act of the employees in the work place.
Professional negligence:
In this the duty of care is breached by the professional against his clients.
Professional negligence and normal negligence are not same concept they are different form each other.
The negligence is done by the any reasonable person but in professional negligence the mistake is done
by the professional.
Basically vicarious liability is occur when any wrong is committed by the person and there is duty of care
exists the person or business is held responsible for the act committed by the other. In business
company is held liable for the employees, subcontractors or anyone who using its space or facility.
For example:
If a manager harassed his subordinates then court will also held liable the manager for harassing his
employees . He is responsible for the vicarious liable.
Employer is responsible for any bullying, harassment, any violent or any discrimination made by the
employees in the course of the employment.
Employer is also responsible for the action which is against the third party, any clients, or any customer.
One question is arising that the employee is act in the capacity of himself or the act is done in the
workplace. So it is very difficult to determine this. Employer liability does not end until the employee
gives his resignation or removal from the office, then the employer is not responsible.
The employer can take reasonable step for preventing the responsibility of the act done by the
employee:
1. Employer has to giving training to the staff.
2. Equal opportunities

3. No – discrimination
4.1. Element of Tort of Negligence
In this situation there was a ship of UK which was taking oil in Sydney harbor. From this the oil was
spilled it into the water and it was also drive from the wharf 200 yards where the equipment of welding
was used. The wharf owner was advised that the sparks will set to the fire to the furnace oil. Oil spilled
onto the water and it drifted to the wharf cannot amount to negligence on the part of UK ship. The law
of negligence clearly states lack of due care should be there from the part of defendant to impose
liability upon him for the tort of negligence. The oil which is spilled in the water will not be considered
that the defendant doing lack of hid due care. And owner of the wharf is also told that the fire will set up
on this furnace oil so stop your welding work but he think that it is not true and he continue doing his
work. So the contributory negligence from the part of the plaintiff is evident from the facts of the
situation. Contributory negligence is that situation in which because of the claimant negligence he
suffered injuries. It is defense for the whilst and it reduces the plaintiff compensation because of his
contributory negligence. The establishment of contributory negligence then the same test is applied
which is used for the establishment of the normal negligence. If the court finds that there is contributory
negligence then court will appropriate the damages according to the negligence.in this the damages is
reduced which is caused by himself by the plaintiff. If there is contributory negligence from the part of
the plaintiff the claim for damages will have diminished value in a court of law.
4.2 Application of the Law
Vicarious liability is a situation in which the individual is responsible for the act of the third party.
Basically in this the superior is responsible for the act by the subordinate. In the employment situation
the employer is responsible for the employee at the work place. Likewise principal is responsible for the
agent. Vicarious liability is distinguished from contributory liability, which the other from of the
secondary liability. Under the doctrine of respondent superior employers are held liable for their
employees if any negligence or any act is omitted by the employees in the workplace. The act which is
considered to in the course of the employment is that it is related to the work and it is authorized to do

the act, and which is doing not in proper manner. But the employer is not liable for any assault or
battery which is doing by the employees,. Here in this situation Alf has done sexual abuse to the boys
under his care in the care home. Sexual abuse was not something part of his duty and can’t say that he
was negligent in his duty and liable for negligence and there by vicarious liability to the Safe Care Homes
ltd. So no claims of vicarious liability arise for Safe Care Homes ltd and the company is not at all liable for
the sexual abuse committed by its employee. The boys can claim compensation through their wards
from Alf and can make him criminally liable for his act of sexual abuse.
References:
1.1 ……………………………………………………………………….. http://shivamlawworld.blogspot.com
1.2 …………………………………………………………………………………. http://www.rocketlawyer.com
1.2.1 ……………………………………………………………………… https://www.designingbuildings.co.uk
1.2. 2 …………………………………………………………………………………………. https://www.weblegal.ca
1.2.3 ……………………………………………………………………….…..http://www.directsellingeurope.eu
1.3 ……………………………………………………………………………………… http://www.lawteacher.net
1.3.1 ……………………………………………………………………………………. http://e-lawresources.co.uk
2.1 ……………………………………………………………………………………………… https://www.scribd.com
2.3 ………………………………………………………………………………………..http://www.quackwatch.org
2.2 ,3.1,3.2,3.3,4.1,4.2 …………………………………………………………………………..www.slideshare.net