Assignment of Vicarious Liability in Case of Negligence

This assignment content discusses various concepts related to tort law, including negligence, vicarious liability, and contract law. It highlights the importance of understanding these legal concepts in order to successfully complete any contract. The main reason for forming contractual liabilities is to protect and compensate the innocent party.

Aspects of
Contract

TABLE OF CONTENTS
Introduction......................................................................................................................................3
Task 1...............................................................................................................................................3
1.1 Essential elements for formation of a contract in UK...........................................................3
1.2 Types of contracts and their impact.......................................................................................4
2.1 Applying various elements of a contract in the given scenario.............................................5
Task 2...............................................................................................................................................6
1.3/2.2 Expressed and implied terms with reference to the case laws.........................................6
2.3 Effect of Express and Implied terms as per the above cases.................................................7
Task 3...............................................................................................................................................7
4.1 Elements of tort......................................................................................................................7
3.1 Contrast between nature of liability in contract and tort.......................................................8
3.2 Nature of liability in negligence with respect to ‘Donoghue v Stevenson 1932’ case..........8
Task 4...............................................................................................................................................9
4.2 Vicarious liability in case of employing a minor...................................................................9
3.3 Application of Vicarious liability in case of no fault of an employee.................................10
Conclusion.....................................................................................................................................10
References......................................................................................................................................11
2

INTRODUCTION
Law is the most essential element in today's business environment (Bennett and
Gibbeson, 2010). This project deals with contract and its legal aspects which are depicted using
relevant case laws. Contract prevents people from behaving in a certain manner which may have
a negative impact on others.
TASK 1
1.1 Essential elements for formation of a contract in UK
Offer: It refers to any offer made by a person to another. As soon as the offer is accepted
it becomes a contract and creates a legal binding (Zhang, 2006).
Acceptance: Any offer made by the party should be given a proper acceptance in order to
convert it into a valid contract (Boundy, 2000). If acceptance of offer is done by inserting some
specific conditions, then, it is known as a counter offer. If an offer is not accepted before a
particular time lapse, then it gets expired for acceptance.
Lawful Consideration: Consideration is the reward for work done by the parties to a
contract (Zhang, 2006). It refers to the legal value of a contract. Consideration may be monetary
or non-monetary. Any contract without a lawful consideration is void.
Intention: Parties entering into contract must have intention to create legal obligation for
the completion of promise made by them. This element is not expressly described in contractual
relationship of parties as it is assumed to be present. However, in domestic and charitable
agreement this element is not assumed.
Capacity of parties: It states that the parties must be competent enough to enter into a
legal transaction. A party is capable in every case if it is not of unsound mind, not a minor, and is
not disqualified to enter into a contract. Any contract by above disqualified parties is void.
Privity of contract: Privity of contract refers to a situation in which no one other than the
parties to a contract can sue each other (Boundy, 2000). No other person except the parties to
contract can impose obligations on one another.
Importance of essential elements of a contract
Contracts outline the general business and set the expectations of all the parties out of
that contract (Lockwood, 2011).
3

Invitation to treat
In the given scenario, Bill made an invitation to treat by advertising the sale of a printing press.
 They are written documents that state relationship between parties and scope of work.
 They can be legally enforced by creating an obligation upon parties.
 Contracts minimize the risk and protect both the parties.
 It states the manner, occasion and amount of consideration to be paid by either party.
1.2 Types of contracts and their impact
The main purpose of a contract is to establish an agreement between parties. For a
contract to be valid, the main elements of a contract must be fulfilled. There are basically 3 types
of contracts in UK:
Face to face contract: It is the best and most clear form of contract. In this kind of
contract, it is essential for the parties to be physically present (e-lawresources.co.uk, 2015.).
With the help of these contracts, both the parties can exchange ideas in a better way, negotiate on
various terms and see samples in cases where required. Example: Shopping from a retailer.
Distance contract: Distance contracts are based on the concept of Directive Principle
(Bennett and Gibbeson, 2010). Distance contracts can find their existence through post,
telecommunication, e-mail, catalogue, etc. It is between seller and consumer without their
simultaneous physical presence. Example: shopping from online sites.
Written contract: Any contract which is made on a legal paper by forming a deed is
known as a written contract (Marchais‐Roubelat, 2012). It provides a better understanding of the
contract and its terms.A valid written contract can never be challenged. Example:Contract for
Partnership.
2.1 Applying various elements of a contract in the given scenario
Scenario 1
There is no contract between Bill and Cathy because when Cathy made an offer to buy
the printing press for £80,000, instead of accepting that offer Bill made a counter offer that he is
willing to sell the same at £90,000. The rule of counter offer is that, as soon as a counter offer is
made, the initial offer automatically gets cancelled.
4

Scenario 2
In the second scenario, Bill gives an offer, through post, to Liza for the sale of an office
computer at £550. Liza on receiving the letter gave her acceptance to buy the same at the offered
price. This case is based on the principle of Postal Rule. This is an exception to the normal
contract law, as here, the acceptance of an offer takes place when the letter of acceptance is
posted. As soon as Liza posted the letter, it was treated as an acceptance to Bill's offer and the
contract became valid. Now, if Liza wants to revoke her acceptance, she cannot do it.
TASK 2
1.3/2.2 Expressed and implied terms with reference to the case laws
Scenario A
Joyce DiDonato, an opera singer, entered into a contract to perform as an opera singer for
3 months with The Royal Albert Hall company. She became ill and was not able to perform for
the first four nights. As a result, Joyce DiDonato was replaced by another singer. This is a case
of Breach of Condition. A condition is a term which states that any failure to perform a
stipulation may repudiate the whole contract and the innocent party may free itself from all the
obligations under that contract. Joyce did not perform on the opening nights as per the contract
and opening performance is very important as all the publicity and critics is based on that night.
In this case, Royal Albert Hall can repudiate the contract and can hire a new singer without
paying any liabilities to Joyce DiDonato.
In another case, Joyce DiDonato agreed to sing in an opera. She again became ill and
missed 6 days of rehearsals. The employer replaced her with another singer. This is a case of
Breach of Warranty. Warranty is something which is ancillary to the main contract. The parties
are liable to just claim damages or compensation. In this case, Joyce's action did not lead to any
breach of condition as the contract was to sing and perform in the concert. On missing few days
of rehearsals, only damages can be claimed, the whole contract cannot be repudiated.
2.3 Effect of Express and Implied terms as per the above cases
Express Terms
5

The terms agreed upon by the parties at the time of entering into a contract are referred to
as expressed terms. Any violation of these terms may result in payment of damages or
repudiation of the contract (Faure, 2009).
As per the first case, the parties entered into an agreement, where Scammel was supposed
to supply his van to Ouston for £286 under a Hire-Purchase agreement. In accordance with this
agreement van will be provided for a period of 2 years. Based on this agreement, Ouston
estimated that he would earn £100, as profit, from that van. There was dispute between parties
due to which hire purchase agreement was cancelled. This concept is based on the terms of
Express condition which means that, Ouston can claim the amount profit that he expected to earn
from that van. The amount can be claimed by Ouston in the form of damages.
Implied terms
Terms which are entailed by law/statue/court and need not be mentioned in a contract
(Paula, 2010). Any misconduct of these terms may lead to criminal liabilities or court
proceedings.
As per the second case, a farmer was a tenant on defendant's field for a particular period
of time. He planted corn and Barley and worked on the field to ensure that the crops grow well.
Before harvesting the tenancy agreement got terminated. This concept is based on implied terms
which states the application of friendly and cordial terms in case of a contract (Magnus,Casals
and Boom, 2004). Although there was no express provision for liability after termination of the
tenancy, still it is the obligation of the defendant to either increase the tenancy period or to pay
the entire cost as compensation to the farmer.
TASK 3
Letter format
To
Brad,
Subject: Advising Brad regarding liability in negligence of business activities
6

Elements of tort
Tort is a civil wrong which is clearly recognised by law. It is a result of negligence of one
party due to which another innocent party may suffer loss or harm.The basic elements of tort are
Duty of care, Breach of duty, Causation, Remoteness of damage.
Applicability of these elements on given case scenario Duty of care: Charles as banker has duty to provide appropriate information to the clients
so they can make viable decisions by considering financial parties of parties. Brad
enquires Charles about the financial details of Albert. Due to this aspect, Charles has true
information about financial position of Albert. Breach of duty: Charles got confused between two of his clients and without looking at
the financial accounts, he told Charles that Albert had a great financial position and
advised him to give his flat on rent to Albert. The advice given by Charles is a clear result
of breach of duty. Causation: Due to negligence of Charles, injury was occurred to Brad. It is because; he
had approved tenancy agreement by considering statement of Charles. Forseeability: Damages of Brad were predictable from the negligent action of Charles.
As a result of which, Charles can recover all the losses from Brad.
Defences available for act of negligence Contributory Negligence: This defence is provided in situation in which both claimant
and defendant had contributed in the act of negligence. In such situation, injured party is
not entitled for the claim of damages.
 Volenti Non Fit Injuria: Benefit of this defence is provided to the defendant, in situation
where claimant voluntarily put themselves in a situation where there is risk of injury. It is
because, injury is occurred due to carelessness of claimant not because of negligence of
defendant.
Contrast between nature of liability in contract and tort
Liability in contract is imposed in situation where contracting party fails to provide
satisfactory performance. On the other hand, tort liability is imposed due to negligent action of
tortfeasor in which they fail to take care of their standard duties. In contract damages are
provided by considering deed of parties but in tort damages vary as per the situation. In contract
7

liability there is pre-existing relationship between parties. However, in tort relationship is
imposed by law without the consent of parties.
Nature of liability in negligence with respect to ‘Donoghue v Stevenson 1932’ case
Negligence is a result of one's careless actions. It must not be intentional. Conditions
required to prove negligence are: Duty of care
 Breach of duty
 Damage caused
 Proximate cause
‘Donoghue v Stevenson 1932’ was the first case where the House of Lords created a
modern concept of negligence by stating the concept of duty of care. The case involves Mrs
Donoghue who found a dead snail while drinking ginger beer in a cafe in Paisley, Renfrewshire.
On drinking that, she fell ill and sued the manufacturer of the beer, Mr Stevenson. Despite of
various pleas of the manufacturer, the court held that the manufacturer was producing things
which were for the consumption of people. So, he had some duty of care towards the consumers.
In this case, for the prevention of negligence neighbor principle was developed by Lord Atkin.
According to this principle individual should love their neighbor i.e. party that can be affected by
their action. For the prevention of neighbor injury, individual should take care of actions.
Yours Sincerely
xyz
Date: 15 Dec. 2015
TASK 4
4.2 Vicarious liability in case of employing a minor
It is a strict liability where the employer is responsible for the wrongs committed by his
employees in course of employment (Lockwood, 2011). As per the given case law, Bill is a local
milkman who has strict orders from his employer that he must not engage any minor for work.
8

Still Bill kept a teenager under him for delivery of milk. Later on XYZ Dairies became aware of
this arrangement between Bill and the teenager and still did not do anything about this. As a
result of Bill's careless driving, the teenage got injured. The result will be based on the concept
of vicarious liability which states that Bill and XYZ Dairies, both will be held responsible for the
act of Bill.
3.3 Application of Vicarious liability in case of no fault of an employee
Vicarious liability is a legal doctrine that assigns the responsibility on third party for the
action of tortfeasor (Middlemiss, 2011). Tortfeasor is a person involved in the negligent action
and due to which injury is occurred to innocent party. In accordance with this principle,
employer is held liable for the negligence of employee. It is because; employer is in position of
control. For this transfer of obligation following conditions are required to be satisfied: Employment relationship: Individual must have status of employee in situation where act
of negligence was occurred. For this aspect control test is applied in assure that employee
was influence by the guidance of employer.
 Course of employment: Negligent action must be occurred in course of employment for
the applicability of approach of vicarious liability.
As per the given case law, the friend of the vintage vehicles museum's owner was driving
the bus to Barnstable. He drove recklessly and as a result of which he damaged Mrs. Smith's car.
This is not a case of vicarious liability. Hence the company will not be liable for any fault or
damage caused because of the negligence of the friend. Mrs. Smith can claim damages and
compensation from the person who was driving the car and not from the business.
CONCLUSION
Based on the entire study, it is found that laws play an important part in successful
completion of any contract. Hence it is necessary to adhere to all the legal clauses and contracts.
The main reason in forming these contractual liabilities is to protect and compensate the innocent
party.
9

REFERENCES
Books
Faure, M., 2009. Tort Law and Economics. Edward Elgar Publishing.
Giliker, P., 2010. Vicarious Liability in Tort: A Comparative Perspective. Cambridge University
Press.
Magnus, U., Casals, M. and Boom, M., 2004. Unification of Tort Law: Contributory Negligence.
Kluwer Law International.
Paula, P., 2010. Vicarious Liability in Tort. Cambridge University Press.
Zhang, M., 2006. Contract Law. Brill.
Journal
Bennett, L. and Gibbeson, C., 2010. Perceptions of occupiers' liability risk by estate managers:A
case study of memorial safety in English cemeteries. International Journal of Law in the
Built Environment. 2(1). pp.76–93.
Boundy, C., 2000. A Concise Business Guide to Contract Law. 100(1). pp.46-48.
Lockwood, G., 2011. The widening of vicarious liability:implications for employers.
International Journal of Law and Management. 53(2). pp.149–164.
Marchais‐Roubelat, N.,2012. Contracts to frame sustainable futures:The rational and symbolic
sides of contract functions and dysfunctions. 7(1). pp.50-64.
Middlemiss, S.,2011. International Journal of law and Management. The psychological
contracts and implied contractual terms. 5(1). pp.32-50.
Nystén‐Haarala, S., Lee, N. and Lehto, J.,2010. Flexibility in contract terms and contracting
processes. 3(3). International Journal of Law in Business. pp.462–478.
Oyegoke, S. A.,2006. Building competence to manage contractual claims in international law
environment:The case of Finnish contractors. 3(1). pp.96-113.
Online
e-lawresources.co.uk. 2015. [Online]. Available
through<http://e-lawresources.co.uk/Contract.php>. [Accessed on 23rd October 2015].
Vicarious Liability. 2015. [Online]. Available through:
<https://www.law.cornell.edu/wex/vicarious_liability>. [Accessed on 23rd October
2015]. Findlaw uk.
10