Contract Law & Tort Liability Analysis

This assignment delves into contract law and tort negligence. It examines key elements of contracts like offer, acceptance, consideration, and lawful object. The focus then shifts to tort law, specifically analyzing negligence and its implications. The concept of vicarious liability is explored in the context of employer responsibility for employee actions. Students are expected to demonstrate a thorough understanding of these legal concepts and their interrelationships.

Aspects of contracts & Negligence
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TABLE OF CONTENTS
INTRODUCTION................................................................................................................................4
TASK 1.................................................................................................................................................4
1.1 Importance of essential elements required for the formation of a valid contract......................4
1.2 Discussing the impact of forming contracts..............................................................................5
1.3 Analysis of terms in the contract with reference to their meaning and effect...........................5
TASK 2.................................................................................................................................................6
2.1 Application of elements of the contract in the given case scenarios.........................................6
2.2 Application of terms...................................................................................................................7
2.3 Effect of different terms in the given contracts.........................................................................7
TASK 3.................................................................................................................................................8
3.1 Explaining the similarities and difference of liability in tort with contractual liability.............8
3.2 Explaining the liability for negligence and its elements............................................................9
3.3 Explaining the vicarious liability of a business.......................................................................10
TASK 4...............................................................................................................................................10
4.1 Elements and defence in negligence........................................................................................10
4.2 Application of elements of Vicarious Liability........................................................................10
CONCLUSION...................................................................................................................................11
REFERENCES...................................................................................................................................12
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LIST OF TABLES
Table 1 similarities and difference of liability in tort with contractual liability...................................8
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INTRODUCTION
As per the English Law, contract can be explained as the voluntary agreement between two
or more parties who are competent enough as well as agreement must be enforceable by the court of
law. On the other hand, tort in negligence is defined as the failure of business parties to carry out
reasonable cares which are according to standard duty that defined by English law (Lawful
consideration, 2011). So, it is important for the ventures to understand their duties so that negligent
action can be avoided. Following report is based on the aspect of contract and negligence. With the
help of this, it can be easy to understand about the subject matters and also, it explains the
importance of elements required for a valid contract. Further, types of information for contract and
terms and conditions involved in the contract will also be defined (Andrews, 2016). Along with this,
inclusion of those terms and types of contract will apply in different business situations in the
following study. Apart from this, contractual liability and tort liability will also be enlisted in the
following study.
TASK 1
1.1 Importance of essential elements required for the formation of a valid contract
As per the given case study, it has been found that Peter Abraham is looking to set up a self
employed building contractor business (Contract Law, 2007). To explain him the way in which a
contract is formed, firstly, he has to understand the importance of various elements that are required
at the time of formation of a valid contract. These are as follows:
Offer: Offer can be defined as it is developed by one party i.e. offerer with an aim of to enter
into creates a binding contract. It can be done via on a telephone, face to face, telegram, etc. With
the case of Harvey v Facey [1893] UKPC 1, this element can be clearly understood. According to
the given case scenario, Peter Abraham can give or recive offer from suppliers, customers and other
parties (Cartwright, 2014).
Acceptance: At the time of formation of contract, it is essential that the offeree must show
valid acceptance within a reasonable time frame. Peter Abraham can binding contract only when he
accept the offer from the suppliers regarding the supply of raw materials. Along with this, he can
form the contract with clients only when they accept it within set time limit. Entorres v Miles Far
East [1955] 2 QB 327 case helps to understand the acceptance term (Fisher and Kalbaugh, 2012).
Consideration: It can be considered as the bargain of contract which is based on the
exchange of promises and each and every part of a contract should get the advantage from it and
suffer the detriment. By considering the given case study, Peter's contract can be price charged
against services delivered to the clients and prices paid to vendors at the time of buying raw
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material. The case of Thomas v Thomas (1842) 2 QB 851 can be help and support to understand the
follow element (Jeffries Jr, 2013).
Capacity of Party: To form a valid contract, it is important to have competent parties. It
means parties should be of sound mind and not be lunatic and mental. In case of Peter, he must be
ensured that the parties which are involved in the contract must be of sound mind and not
intoxicated.
1.2 Discussing the impact of forming contracts
There are various kinds of contracts that can be entered by Peter Abraham with many parties
like customers, vendors, labours, etc. It is essential for him to determine the impact of numerous
types of formation and breaching of contract. These effects are as follows:
Face-to-face Contract: Under this, parties enter into contract are present in physical form at
the time of formation of contract. As per the give case study, Peter can form this type of contract
while dealing with clients and can identify their needs and requirements as well. On the basis of
some terms and conditions, contract can be formed. Impact of this is that parties which are entering
into contract should be physically presented (Avraham and Schanzenbach, 2010).
Written Contract: This type of contract is formed after writing all terms and condition in
documents and getting it signed by the partied involved. Peter can use the following type at the time
of formation of contract. The impact of this is if other party breach the contract then he can easily
show evidence of contract breach in the court of law.
Distance Selling (Telephone, Internet): Under this, parties are not physically presented at
the time of formation of contract. As per the case study, Peter can make the contract via its own
website, mail or telephone. The impact of this is that it may create some confusion between both
parties because of distance and network issues. It can be possible that some terms may not be
fulfilled (CHENG and Yang, 2010).
1.3 Analysis of terms in the contract with reference to their meaning and effect
Terms are known as the substance of contracts. When an agreement forms between two or
more parties, it contains some terms. These terms in the contract with reference to their meaning
and effect are as follows:
Conditions: It is considered as a major term of contract which lies in the centre of an
agreement by forming a root of the deed. If these are not completed by party then other one can be
entitled to breach of contract and claim for damages. As per the given case, suppose Peter
contracting with the supplier related to supply of 30 ton raw material within the 5 days. If vendor
does not meet the condition then it will be a situation of breach of contract (Levy, Golden and
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Sacks, 2015). For this, he can terminate the agreement and claim damages which he suffered.
Warranties: It is a minor term of contract and does not lie in the centre of contract. If it is
breached then innocent party is liable to claim for damages and not denied to close the agreement.
For instance, if Peter’s supplier sends him only 25 ton material after 20 days then it is a condition of
breaching of warranties and for the same, Peter can claim damages.
Innominate Terms: It neither comes under warranties nor in conditions. It acts as an
intermediate term at the time of formation of contract. If customers or suppliers of Peter breach the
contract then he will be liable for getting whole benefits (Four Essential Elements of a Contract,
2015).
Exclusion Clause: When the following terms are included in contract, it limits the liability
of a party in order to avoid the penalty of breach of contract. For example, Peter Abraham made
exclusion clause at the time of contracting that if any accident or hazard happens with the labours
then he will not be liable for this (Cranmer, 2011).
TASK 2
2.1 Application of elements of the contract in the given case scenarios
CASE 1
As per the given case study, Carol’s student apartment was unfurnished and for the same,
she contact with Gumtree that is an online classified firm. By saw an advertising of sale of nice
brown leather couch for £600. On the basis of given information, she mailed to the seller regarding
the purchasing of item. As per the law, ad of Gumtree online is considered as offer and the mail by
Carol is the acceptance of an offer. The price of couch £600 needed to be consider for the following
contract because it has already been mentioned by Gumtree. Both the parties are enough competent
and want to build a legal relationship. So, it can be said that it is a binding contract of Carol with the
seller Gumtree online. Carlill v carbolic smoke ball company 1893 1 QB 256 case supported the
following situation. It is a distance selling and unilateral contract (Coleman, 2010). But, Gumtree
has not replied the mail of Carlo’s regarding the selling of brown leather couch. These shows that
there is no contract form between both the parties.
CASE 2
According to the given case study, Devi was recruited by an IT firm as an intern. By seen the
potential of his, company decided to employ him. On a next day, Mr Preston, Devi’s father showed
his concern regarding the future of his child and mailing a letter to owner of IT firm, George and
offer £150000in return of a contract about hiring of his son. From this, it can be said that it is an
illegal intention of Mr Preston to enforce owners of a company to enter into a contract (Jain, 2015).
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So, it is not a valid contract because offer made of £150000 is invalid and cannot be regarded as
consideration. The case of Re McArdle (1951) Ch 669 Court of Appeal can support the above
situation.
2.2 Application of terms
CASE 3
As per the given case study, a couple booked a table in a famous restaurant where a man
handed over his jacket to the porter. That jacket contains a wallet which has £500. After handover, a
receipt had given by porter to him and the back of that receipt, the clause was mentioned. It was that
all valuable must be taken out from the jacket pocket as restaurant will not liable for the same. After
completing dinner, the man found that his wallet is not in the pocket of jacket and he asked
restaurant owner to recover the loss. For this, owner refused to do it and clearly state the exclusion
clause (Bercovitz and Tyler, 2014). From the given case study, it has found that written clause over
the receipt cannot be considered as the exclusion clause. The case of Chaplet v Barry clearly
explains the above situation. So, restaurant cannot rely on this clause and they should recover the
amount.
CASE 4
As per given case scenario, Aaron buy a warehouse on rent from Zehphra. As per the needs,
Aaron refurbished warehouse and contract between both parties express that for the next upcoming
5 years, rent will remain same. After one year, Zehphra dies and the value of his property also rose.
Further, the new owner of Zehphra property was Yeti and he introduced new terms by increasing the
rent. For this, Aaron refused to stay in the contract and wanted to renounce of agreement. Alomg
with this, he claimed for the compensation from Yati related to amount spends in refurbishment of
warehouse (Gifford, D.G. and Robinette, 2014). But Land Law defines that landlord is not reliable
to pay compensation to the individual to whom they have given rent the property or make any kind
of changes in property. So, Aaron has not entitled to pay any kind of compensation because Yeti ahs
changes the contract without informing and permission of her. Therefore, it is invalid contract as per
the law. The case of Hutton v Warren [1836] EWHC Exch J61 supported the above conditions.
2.3 Effect of different terms in the given contracts
CASE 5
As per the mentioned case, policyholder applied for a motor insurance where a question
enlisted in the proposal form. It was “have you or anyone who will drive been in any motor
accidents or made a claim during the last five years”. For this, policy holder writes “No”. When
case of policyholder stolen, it was determinate by the insurer that same person has made claim in
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past under his former motor policy within 5 years tenure. Following conditions shows that contract
have breached because company made contract with the policyholder on the basis of not any claim
in previous time (Lauridsen, 2015). It was found that claim was made earlier by him within the five
years and now he is laying to the organization. So, firm rejected the contract and may be claim for
damages for the same. This is a breach of condition as per the policy holder misrepresented the
material facts of the contract. It is relevant to the case of Poussard v Spiers (1876) 1 QBD 410.
CASE 6
The given case demonstrates that insurance company is permitted to reject the policy from
the starting date. But evidence shows that insure acknowledged that policyholder truly believed that
car was not changed at the time of purchasing. For the same, she demanded to disclose the previous
claim of her husband. So, policyholder has to explain the former incidents and claims (Anson and
et.al., 2010). If it is not following, lady may misguide the insurer to accepting risks and for this, she
will ready to cover against the higher premium. It is a breaching of warranties by policyholder for
this; insurer can file a case related to claim of damages. Bettini v Gye 1876 QBD 18 case is suitable
for the same study which shows that insurance company can void the policy from the start due to
misrepresentation of information.
TASK 3
3.1 Explaining the similarities and difference of liability in tort with contractual liability
As per the English Law, needs for liability has explained in order to make sure that parties can
carry out their duties in satisfactory manner under the contract (Gallagher and et.al., 2013).
Liabilities for both tort and contract different and their description as follows:
Table 1 similarities and difference of liability in tort with contractual liability
Basis Tort Liability Contractual Liability
Relationship
between the Parties
Both the parties can form the
relationship after the negligence as
per the law court.
Parties build-up present relationship
in a contract form after the mutual
permission.
Nature of
Obligation
According to standard of care, it is
expecting from the sensible person to
complete his duties of care.
Parties of both the side needed to
perform duties as per the terms and
conditions enlisted in an agreement.
Causation and
Remoteness
It is important to verify causation if
there is rejection and it leads to the
If the defeat take place because of
breaching of contract is a general
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loss to claimant (Law of contact and
Tort of negligence, 2016).
outcome then defendant is held
responsible or not (Davey, 2012).
Claim for damages Claims for the damages can be
imposed by the innocent parties and
tortfeasor must be given damages. It
will be paid after allowing for the
injuries to injured party (Geistfeld,
2011).
Damages can be claimed by the
departed parties and it should be
availed by the defendant party.
Case Example Donoghue v Stevenson Avery v Bowden (1855)
3.2 Explaining the liability for negligence and its elements
Definition
According to the law, negligence can be defined as the failure of party to perform duties of
care into sufficient manner. Under this, the injured party can demand for the compensation from the
claimant because of negligence caused by them.
Elements of Negligence
To ensure the tort of negligence, it is important for the injured party to take care of different
elements of negligence and these are as follows:
Duty of Care: Court of English law defines some relationship and circumstances that give
occurrence of standard duty of care which must be considered by person and venture at the time of
performing the work (Hillman, 2010).
Breach of Duty: When an individual and business do not carry out care of legal duties in
satisfactory manner, the following situation raise.
Damages Caused: When party neglect the breach of duty then innocent party can claim for
damages.
Remoteness: This element defines that the damages should be foreseeable type and have
caused by claimant (Davies, 2016).
Therefore the case of negligent action can be cited with the real the case of Donoghue v
Stevenson, 1932 can assist in understanding negligent action.
Defences
To reduce the liability of plaintiff, English Law divides defences into three parts. Volenti non
fit injuria is first type that shows claimant can keep itself in a situation where harm may exist and
he can aware about the same. Plaintiff relieved from their own part of liability. Contributory
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Negligence is second in which both claimant and defendant contributed equally for the occurrence
of negligence (Andrews, 2016). Under this situation, plaintiff is not only responsible for the claim
but also claimant also shares equal part in liability. Ex Turpi Causa is last one where plaintiff may
not give legal remedy if it generates because of illegal act of injured party.
3.3 Explaining the vicarious liability of a business
Vicarious liability can be defined as a condition where a person is accountable for the
negligent actions done by others. In the businesses, employers are responsible for the wrong acts
which are performed by their employees. It includes illegal activities that are carrying out by the
owner such as mental and physical harassment etc (Vicarious Liability, 2016). Employer of the
organizations will be accountable only if the below enlisted elements are satisfied:
 The illegal action must be performed by employee in a given working hours.
 The illegal activities must be carried out at the time of employment period.
 The tortfeasor should be a worker of the firm.
 The act should be a tort if it will include all negligence elements.
TASK 4
4.1 Elements and defence in negligence
CASE 7
As per the mentioned case, Mr. Brown was not feeling good and for this, he went to Good
Mayes Hospital and complaining regarding the chest pain and breathing issue. He was seen by
nurse and for the same, she called the respective doctors.
(a) If the doctor examine the situation and issues of Mr Brown and suggesting some pain killers to
him then he will survive. Under this, the doctors did not taking care of his duty then hospital is
accountable for the negligent actions of a doctor as he is recruited as a staff of Good Mayes
Hospital (Davies, 2016).
(b) The hospital cannot be supposed to liable because the failure of doctor to confirm patient was
not the actual reason behind the death of Mr. Brown. It has happened because the pneumonia
occurred from toxic mould at his home. So, hospital is not responsible for the negligence act.
4.2 Application of elements of Vicarious Liability
CASE 8
Based on the given case, driver decides to intake few glasses of alcohol at the time of pick
up a client at the airport. Due to intoxication, he crashed the lamp post that injured then client very
badly. For this, client claim on company and it has found that firm is vicariously responsible for the
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accident and because of negligence of driver; they have to pay for damages (Gallagher and et.al.,
2013). Vicarious liability elements satisfied because diver was under the employment period
tortfeasor was the employee of the company
CASE 9
The following case is relating to Mr. Jones who was employ as delivery driver in
supermarket. At the time of loading of pallets into the truck, he got slipped on the tail gate pallet fall
over another worker and he got injured. It was a serious injury and for this, a surgery taken place
and situated in rehabilitation for months with a physiotherapist. For the same, his colleague imposes
charge over the supermarket and demand for compensation. But, company argued that the
responsibility of health and safety of the employees given to other firm. As per the vicarious
liability act, the employer is accountable for taking care of his employees in order to prevent from
injuries (Levy, Golden and Sacks, 2015). If management is not fulfilling his duties then he will be
accountable for paying of damages. According to Occupier’s Liability Act 1984, the physical
damages will be compensated to the claimant for the injury caused.
CONCLUSION
From the above report, it can be concluded that parties needed to understand all elements
and terms of contract before entering into the contract to form a valid contract. Along with this, it
has essential that parties have to know about the potential impact of different terms on the business.
Further, there have some terms that must be satisfied by the companies and persons while creating a
contract else breaching of those factors have some serious consequences on the defendant party.
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REFERENCES
Books and Journals
Andrews, 2016. Sources and General Principles of English Contract Law. In Arbitration and
Contract Law (pp. 165-175). Springer International Publishing.
Anson and et.al., 2010. Anson's law of contract. Oxford University Press.
Avraham and Schanzenbach, 2010. The Impact of Tort Reform on Private Health Insurance
Coverage. SAGE.
Bercovitz and Tyler, 2014. Who I Am and How I Contract: The Effect of Contractors’ Roles on the
Evolution of Contract Structure in University–Industry Research Agreements. Organization
Science. 25(6). pp.1840-1859.
Cartwright, 2014. Contract law: An introduction to the English law of contract for the civil lawyer.
A&C Black.
CHENG and Yang, 2010. THE IMPACT OF LABOR CONTRACT LAW'S ENFORCEMENT
ONCHINESE ENTERPRISES'HUMAN RESOURCES MANAGEMENT——Based on the
Perspectives of HR Managers [J]. Economic Theory and Business Management. 7. p.011.
Coleman, 2010. Theories of tort law. Stanford Encyclopedia of Philosophy.
Cranmer, 2011. Maga and Vicarious Liability for Sexual Abuse. Law & Just.-Christian L. Rev.. 167.
pp.20.
Davey, 2012. Claims notification clauses and the design of default rules in insurance contract law.
Insurance Law Journal. 23. pp.245-269.
Davies, 2016. JC Smith's the Law of Contract. Oxford University Press.
Fisher and Kalbaugh, 2012. United States private-sector physicians and pharmaceutical contract
research: A qualitative study. PLoS Med. 9(7). p.e1001271.
Gallagher and et.al., 2013. China's 2008 labor contract law: implementation and implications for
China's workers. World Bank Policy Research Working Paper. (6542).
Geistfeld, 2011. Legal Ambiguity, Liability Insurance, and Tort Reform. SAGE.
Gifford and Robinette, 2014. Apportioning Liability in Maryland Tort Cases: Time to End
Contributory Negligence and Joint and Several Liability. Maryland Law Review. 73. pp.2013-
61.
Hillman, 2010. Contract Law in Context: The Case of Software Contracts. Wake Forest L. Rev.. 45.
p.669.
Jain, 2015. Introduction. In Economic Analysis of Liability Rules (pp. 1-22). Springer India.
Jeffries Jr, 2013. The Liability Rule for Constitutional Torts. Virginia Law Review, pp.207-270.
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Lauridsen, 2015. The meaning and use of the modals CAN and MAY in English contract law
texts. HERMES-Journal of Language and Communication in Business.5(9). pp.43-64.
Levy, Golden and Sacks, 2015. General Principles of Liability and Immunity of Public Entities and
Employees (Vol. 5). California Torts.
Online
Contract Law, 2007. [Online]. Available through:
<https://legalcatch.wordpress.com/2007/10/12/contract-law-%E2%80%93-its-importance-
in-the-world-today/>. [Accessed on 4th July 2016].
Four Essential Elements of a Contract, 2015. [Online]. Available through:
<https://www.smallbusiness.wa.gov.au/business-topics/money-tax-and-legal/legal-matters/
business-contracts/four-essential-elements-of-a-contract/>. [Accessed on 4th July 2016].
Law of contact and Tort of negligence, 2016. [Online]. Available through:
<http://www.accaglobal.com/ca/en/student/exam-support-resources/fundamentals-exams-
study-resources/f4/technical-articles/key-aspects-of-the-law-of-contract-and-the-tort-of-
negligence.html>. [Accessed on 4th July 2016].
Lawful consideration, 2011. [Online] Available through: < http://www.bms.co.in/explain-lawful-
consideration-sec-23-to-25/>. [Accessed on 4th July 2016].
Vicarious Liability, 2016. [Online]. Available through:
<http://www.casebriefs.com/blog/law/torts/outline-torts-law/imputed-negligence/vicarious-
liability/>. [Accessed on 4th July 2016].
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