Minimization Objective of Tort Law? : An Examination of the Legal Framework.

This assignment content does not have a summary as it is a list of references to various academic articles and books on tort law, negligence, contracts, and other related topics.

TOP036 UNIT 5 ASPECTS OF CONTRACT
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Table of Contents
Introduction......................................................................................................................................3
LO 1 Understanding the important key elements of a valid contract..............................................3
1. Explaining the significance of the elements that are required to form the valid contract
(AC1.1)............................................................................................................................................3
2. Discussing the influence of types of contract (AC 1.2-M1)........................................................4
3. Analysing the contracts term mentioning their meaning (AC 1.3-M2).......................................5
LO 2 Applying the contract elements..............................................................................................5
4. Applying the components of a contract in the mentioned business outline................................5
5. Applying the law on the terms in various contracts (AC2.2-M2)...............................................6
6. Evaluating the effects in the terms of law (AC 2.3-D1)..............................................................7
LO 3 Understanding the concept of negligence answerability in various business actions............7
7. Comparing the accountability of tort with that of contractual legal responsibility(AC3.1)........7
8. Explaining the type of Negligence liability (AC 3.2-M1)...........................................................8
9. Explaining how does business can be vicariously accountable (AC 3.3-M3).............................8
LO 4 Being able in applying the idea of liability in negligence in numerous business conditions.9
10. Applying the sections of the tort of negligence along with defences in various business
situations (AC4.1-D2)......................................................................................................................9
11. Applying the portions of vicarious liability in the mentioned business circumstances (AC 4.2-
D3).................................................................................................................................................10
Conclusion.....................................................................................................................................10
Bibliography..................................................................................................................................12
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Introduction
The aspects of contracts are required to be studied in the case of business because it helps in
better understanding of the law and its purpose for the betterment of the society. In order to
remove any type of chaos from the society, proper law and order should be maintained in the
society so that crime may not occur in the society. Law needs to be followed by every person and
business organisations of the society so that the business organisations along with the person do
not undergo horrible consequences. In order to maintain peace and order in the society, the law
needs to be enforced for the proper existence of the discipline in the society. In the given study,
the aspects of the contract are discussed, which has two parts named as contract law and tort law.
Contract laws help in maintaining the promise between two persons that are mentioned in the
contract whereas tort law is considered when there occurs any injury or harm to the person or
any element.
LO 1 Understanding the important key elements of a valid contract
1. Explaining the significance of the elements that are required to form the
valid contract (AC1.1)
The elements of contracts can be stated as the genuine offer and actual acceptance, intending to
create legal relations, various considerations that are under the law, competition between parties
and consent that is not done by any force (Keating, 2017, p.455). For creating valid contract,
there is the requirement of the ‘legal offer’ of a party along with ‘legal acceptance’ of another
party. In Section 2 (a) of the Act of Contract, if a person is willing to do something or if the
person refrain the other person from doing anything then the person is asked for doing the offer.
Contract Law’s Section 2 (b) mentions that if another person founds the act of being significant,
then the person can accept the offer. If the parties do not want to remain in a relation then they
are free to create no relationship between them. For example, Balfour vs. Balfour of 1919, Mr
Balfour along with his wife travelled to England to spend the leisure time but Mrs. Balfour felt
sick, unfortunately. Thus, Mr Balfour went to Sri Lanka making an agreement that his wife will
remain in England and he will pay 30 pounds per month. Later on, their relation suffered and the
court considered the agreement of Mr. Balfour.
Consideration is taken to be lawful if there is a promise made between two people and it is
required that the person follows to that lawful consideration. If the person is minor in age, if the
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person is not sound or if law disqualifies a person, then the agreement cannot be made between
these people. According to Fay (2017, p.566), consent of both parties is required for the same
thing so that validation of the contract can be understood by law.
2. Discussing the influence of types of contract (AC 1.2-M1)
Mainly there are four types of contracts based on formation, nature of consideration, execution
and validity. Again, based on formation, there exist four contracts. It involves express contracts
where the expression of a person or conversation between the parties is present. Thus, its impact
is, there exists a proof and the parties cannot cheat each other. In the case of Routledge v.
Mckay, an express contract was used. Formation contracts also involve contracts without any
expression. These are known as implied contracts. In the case of Moorcock in 1889, the implied
contract was used. The quasi-contract also comes under formation. It is created by virtue of law
and here, the partners do not have any contractual relation (Hanley, 2017, p.304). Its impact can
be better understood by the following example. If B helps A financially to support A during A’s
unfavourable situation without A’s request and afterwards when B claims his money, A refuses
to pay back, then the court creates a quasi-contract. Next, based on nature of consideration there
are two types of contracts bilateral contract and unilateral contract.
Its impact is, after formation of the contract, considerations can be moved in both directions or in
a single direction accordingly. Next is the contracts based on execution. It involves both executor
contracts and executed contracts. Its impact is, it shows whether the performance based on the
contract has completed or not. It also, indicates which tasks are left out to be performed in future.
Next is the contracts based on validity. It includes the valid contract, which is enforceable in the
court. The valid contract should include lawful objects, free consent and legal obligations (Born
and Puelz, 2016, p.113). It ensures that the contract signed between two persons hold all the
necessary features to be enforceable. It also includes void contracts. It helps in indicating the
contracts, which cannot be enforced in the court. A voidable contract is also a part of this. It
indicates the contract, which lacks free consent. It also involves illegal contracts. Thus, the
impact of this validity contract is it ensures whether a contract is valid to be enforced in the court
or not.
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3. Analysing the contracts term mentioning their meaning (AC 1.3-M2)
Parties, who sign a contract, are bound by the terms of the contracts, which have much more
importance than warranties. A contract consists of terms and conditions. Before signing a
contract, there is always a discussion between the parties about the parts, which are to be
considered in the contract. Disputes may also take place over the parts, which are to be
considered and which are to be considered as pre-contract talk. The important points, which are
to be focused on a contract, are known as terms of a contract (Ferrara et al. 2016, p.600). The
impact of terms of a contract is any of the parties cannot deny the terms afterwards. The different
types of terms include express clause term, which is used in making a contract. The terms should
be mentioned in the contract.
This helps the court to understand the terms and make the contract enforceable or punish the
party at fault that violates the terms of a contract. Implied clause term reflects the intentions of a
party. These are not mentioned in the contract but are still considered a part of the contract.
Exclusion clause helps in freeing a party from performing the terms, which are mentioned in the
contract (Perry, 2016, p.45). Condition and warranty include the condition of the contract, which
is the important part of the contract. Warranty implies that violating the terms will make the
parties pay compensation. In nominate terms are difficult to differentiate whether it is a condition
or a warranty (Maltese and Farina, 2016, p.52). These terms lie somewhere between warranty
and condition. Its impact depends on the kind of breach. The Large breach may cause
termination of the contract.
LO 2 Applying the contract elements
4. Applying the components of a contract in the mentioned business outline
Contract law can help Ivan to understand better about the case that occurred with him in the
Toder’s bookshop. It was the mistake of Toder that he did not remove the item from his shop’s
display and Ivan, who possessed the great interest of buying the book, cannot do so. In this case,
Ivan and Toder did not undergo any offer and acceptance under the law thus, the law cannot find
consideration from the law. For example Fisher v Bell case of 1961, English lrgislation found the
requirement of offer and acceptance under the terms of the contract. It was seen that the items
that were displayed in the shop for sale with a price label, is considered as an invitation from the
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seller but it is not the offer. Offer is valid when the buyers present the item to the seller and
making the payment is taken as the acceptance.
Defendant mentioned that it was not an offer made by him to the customers and thus, no liability
can be considered against the defendant. The court, therefore, dismissed the appeal so Ivan needs
to understand the fact of offer and acceptance before appealing to law against the Toder.
Jafarpour and Spiers (2017, p.15) mentioned that law is same for all and there lies no partially
for any particular person under the law. Ivan will too get the judgement according to that
occurred in the case of Fisher v Bell, instead Ivan could ask Toder to bring him another piece of
the same book so that he can buy it after coming next time in the shop. In the case of Partridge v.
Crittenden, the similar invitation of a treat was provided and prosecution’s appeal was dismissed
by the court.
5. Applying the law on the terms in various contracts (AC2.2-M2)
In every contract, there are terms like implied, express and exclusion that need to agree by the
persons in the case of the law (Becker-Peth and Thonemann, 2016, p.1034). The terms that are
decided by the parties for a contract along with agreeing those terms is known as express terms.
Routledge v. Mckay’s case of the year 1954, the pretender brought a Douglas BSA motorcycle
and sidecar with the exchange of one motorcycle and with the payment of pound 30. The
claimant found that the model of the motorcycle was 1936 model but the registration certificate
stated 1942 model. The claimant again went to the shop a few days later and found the deal was
closed. Claimant asked the help of the law but law found that the statement was not contractual
because registration is not the exact evidence and both the parties were not an expert. There was
a great time span between making the statement and entering the agreement.
With the case of Moorcock in 1889, the implied terms were considered where the cargo of
Moorcock was hit with a ship thus, damaging the ship. The plaintiff claimed wharfingers holding
the responsibility of the vessels and the wharfs defended themselves saying that there was no
such contract of ensuring the safety of vessels. In the case of Shepherd homes Ltd v. Encia
Remediation Ltd in 2007 held exclusion of the clause in order to exclude the liability for the
damage. Conditions are the vital terms in the contract and if this violated, the guiltless person can
claim the loss (Piir and Sein, 2016, p.69). For example, in the case of Poussard v Spiers in 1876,
Poussard was found breaching the condition because of her illness. Warranties are not such a
major term of contract where the contract cannot be ended if the guiltless party claims the loss.
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The case of Bettini v Gye in 1876 showed that the employer dismissed Bettini for breaching the
warranty. In nominate terms stated that the innocent person will not be wholly benefited at the
end of the contract and this term was introduced from the occurance of Hong Kong Fir Shipping
v Kawasaki Kisen Kaisha in 1962.
6. Evaluating the effects in the terms of law (AC 2.3-D1)
John was injured by the chair due to its collapsing that made him ask for the compensation from
the council. Though the council shows the exemption clause on the ticket, yet John can ask for
his compensation with the help of law. Zipursky (2014, p.146) stated that offer and acceptance of
the contract law are followed in the perfect way so that the innocent person is benefited when
they take the help of the law. Carlill v Carbolic Smoke Ball Co case study in 1893, when Carlill
purchased smoke balls and used it accordingly, she caught the flu and thus claimed the reward of
100 pounds. The defendant was not ready to agree because the defendant mentioned it was an
invitation of the treat for the offer. The court asked the company to reward Carlill because the
advertisement was considered as the offer of unilateral contract. The court stated that offer can
be presented for business purpose but in a case of unilateral contracts, the offerer is not required
to communicate with the intention of accepting with the buyers. Similarly, John can ask the help
of the law because the exemption clause was a unilateral contract. Though local council
mentioned the clause, yet the acceptance of this clause is dependent on the performance of the
person, who visited the park.
LO 3 Understanding the concept of negligence answerability in various
business actions
7. Comparing the accountability of tort with that of contractual legal
responsibility(AC3.1)
Both Tort Law and Contractual Law are entirely different in their area of work and have different
types of application in the case of the law (Martin, 2016, p.40). The Tort law comes into action
when there occur civil wrongdoings in the society and the court considers the claim of losses
from the innocent person. Donoghue v Stevenson Case in 1932, Donoghue fell ill after drinking
Ginger beer from the bottle that contained dead snails. The House of Lords charged the
manufacturer for breaching the duty of care towards Donoghue. Contract Law is very
unorthodox because under this law, there lies the offer and acceptance of the parties for whom
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the contract is made. In the case of Adams v Lindsell in 1818, the defendants offered plaintiffs to
buy wool on the day of September 2. It was found that the offered that was given by the
defendant was not properly addressed that is why; the plaintiff did not receive it until the 5th day
of September. The court found that both the parties entered proper terms of the contract and the
defendants were found guilty of breaching the contract. Contract Law deals with the cases of
property, partnership and agreement between two people (Cavico et al. 2016, p.206). Tort deals
when there is the case of injury or damage of the claimant. In the case of Caparo v Dickman, the
House of Lords on the defendants imposed a duty of care whereas Taylor v Cadwell was not
liable to raise any obligations against each other under the terms and conditions of the contract.
8. Explaining the type of Negligence liability (AC 3.2-M1)
The tort of Negligence is that part of the law where the law mainly concentrates on the types of
injury occurred to the claimant instead of calculating the amount of harm done to the claimant.
Cusimano and Roberts (2016, p.370) mentioned that negligence is the conduct of careless duty of
the defendants towards the claimant due to the reluctant behaviour of the defendants and not
performing the duty of care properly. Negligence helps the person from the harm that is caused
due to the unfair means of the defendants and it saves the people from being humiliated by the
defendants. The essential requirement of negligence are the duty of care, duty to whom, duty
must be maintained towards plaintiff and breach of the duty of care. Donoghue v Stevenson 1932
case, showed the case of duty of whom under the tort of negligence.
In Grant v. Australian Knitting Mills of 1935, the claimants suffered from skin diseases after
purchasing woollen under wears from the defendants. The defendant was held responsible for
breaching the duty of care towards the claimant. In case of Bourhill v. Young that happenend in
the year 1943, the claimant suffered from nervous shock giving birth to a child, who was under
born after seeing the blood when the accident occurred between motor care and tramcar. The
court mentioned that no duty of care was taken towards the claimant therefore; she was unable to
claim for the damage. Abdullah (2017, p.583) stated that harm to the claimant by the defendants
can be various types like hurting physically, causing damage to the reputation, mental shock,
harm caused to property and causing economic loss. The law under the tort of negligence
considers all these and the court takes accurate steps towards the claimant.
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9. Explaining how does business can be vicariously accountable (AC 3.3-M3)
Vicarious liability is the type of tort in which people is accountable for the torts of another
person although the liable person has not committed the act themselves (Zalesne, 2017, p.420).
In business, the vicariously liable tort is applicable because any tort against the employees held
the business responsible. Mersey Docks and Harbour Board v Coggins and Griffith in 1946, it
occurred that a worker was severely injured because of the negligent driving of the crane. The
stevedores controlled the entire operations of the crane but did not instruct the driver properly in
what way it needs to be driven. The court decided that the driver of the crane was entirely
responsible for the negligence that occurred with the worker. In the vicarious liability, the
employer is required to pay for the losses of the workers because the employees listen to the
employers and thus, they had to undergo the severe problems (Edisherashvil, 2017, p.452).
In the case of Hall v Lorimer of 1993, Lorimer was a technician and he was found expensing
9320 pounds. It was said by the court that Lorimer was able to undertake the expenses against his
income, as it is quite relevant to the status of his employment. Moreover, vicarious liability is
seen in the case of Short v J W Henderson Ltd because the claimant was totally under the control
of his master. The court thus, mentioned that employees will get the full payment in return of the
work done by them and the employees need to accept the work under the control of the
employer. In the case of Carmichael v National Power Plc in 1998, the women was employed at
the kind of work she wanted and was paid for that. House of Lords then stated that the women
will face no obligation regarding work and was considered as the independent contractor.
LO 4 Being able in applying the idea of liability in negligence in numerous
business conditions
10. Applying the sections of the tort of negligence along with defences in
various business situations (AC4.1-D2)
The tort of negligence and defence comprises of Volenti non fit injuria and Ex turpi causa where
violent not-fit injuria takes place when the claimant was in the total sense and acted accordingly
(Schwenzer et al. 2012, p.356). Ex turpi causa means that the person denies his or her criminal
act when they get injured due to that act. In the given scenario, David was driving the car at high
speed on the four-lane road where the children were playing. David was injured when he hit the
telephone pole in order to save the child. This comes under the tort of negligence and defence act
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of volenti non-fit injuria. In the case of Nettleship v Weston of the year 1971, the claimant was
providing driving lessons to the defendant.
The defendant, on the third day of providing driving lessons, drove in a reluctant way and hit the
lamppost, therefore, resulting in injuring the plaintiff. The House of Lords mentioned that the
plaintiff needs to agree on the terms in implied manner for the injury that was caused. David can
also get the judgement as that occurred in the above-mentioned case. In the case of Davies v
Mann of 1842, the claimant was charged guilty because he was driven the wagon very fast thus
resulting in killing the ass because the wagon collided with ass. Similarly, David could have
driven slowly so that the accident would not have occurred to him.
11. Applying the portions of vicarious liability in the mentioned business
circumstances (AC 4.2-D3)
In this given state, Roger could claim against Colin under the vicarious liability of Ex turpi causa
because Colin hit Roger in the way that Roger felt unconscious. In the case of Kirkham v CC
Greater Manchester Police in 1990, it happened that Kirkham has undergone depression and he
tried to commit suicide twice. He was hospitalised but after coming back to home, Kirkham
became violent after drinking alcohol. Police arrested him but he committed suicide in remand
because Police failed to inform the prison power that he was under depression. Kirkham’s wife
raised the tort of negligence and the police defended themselves using volenti non-fit injuria and
ex turpi causa.
Finally, the claimant was successful and thus, Roger can take the help of law so that he can get
better judgement as that occurred in the mentioned case. Chen-Wishart (2012, p.458) opined that
the personal damages are not considered as the tort of vicarious liability and the court will not
provide decisions regarding personal damage under vicarious liability. In this case, Roger was
negligent in his actions so the chef was frustrated with him. Roger performed negligence of tort
but hurting personally cannot be considered as the part of the law. Colin needed to control his
anger and should not have hurt Roger. That is why; Roger cannot claim against the Regent Hotel
instead he can ask for compensation from the court for his injury.
Conclusion
The study about the various aspects of Contract Law is done in the given assignment and it is
understood properly how the law works at every section of the society. In the case of Ivan, it is
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recommended that Ivan need not get upset instead asks the shopkeeper to bring the book for him
in the very next day. Here, the law cannot give any decisions because the shopkeeper was
inviting the buyers for the offer. Various cases are cited in the context of the law so that Contract
law and Tort law can be understood properly. In the case of Roger, it is recommended that
Rogers’ task the help of the law in order to get compensation from Colin. David needs to slow
down his speed of driving so that the accidents may not occur. In the case of John, he needs to
take the help of the law so that he gets the proper judgement in his case.
Bibliography
Abdullah, N.S.B., (2017). Formation of Contract under Vienna Sale Convention and Islamic
Law: A Comparative Study. Vancouver Journal of International Business and Law, 1(1), pp.582-
600.
Becker-Peth, M. and Thonemann, U.W., (2016). Reference points in revenue sharing contracts—
How to design optimal supply chain contracts. European Journal of Operational Research,
249(3), pp.1033-1049.
Born, P. and Puelz, R., (2016). Are Preferences for Structured Settlements Consistent with the
Loss-Minimization Objective of Tort Law?. Journal of Insurance Issues, 39(1), pp.113-136.
Cavico, F.J., Mujtaba, B.G., Samuel, M. and Muffler, S., (2016). The Tort of Negligence in
Employment Hiring, Supervision and Retention. American Journal of Business and Society, 1(4),
pp.205-222.
Chen-Wishart, M., (2012). Contract law. Oxford: Oxford University Press.
Chetwin, M., (2011). Comparative analysis of some aspects of assessment of damages for
contractual breaches in England and Wales, Australia and New Zealand. International Journal of
Law in the Built Environment, 3(2), pp.113-125.
Cusimano, G.S. and Roberts, M.L., (2016). Contributory Negligence and Assumption of Risk.
Alabama Tort Law, 1(9), pp.369-400.
Edisherashvil, T., (2017). Legal Regulation of Electronic Contract and General Review.
European Scientific Journal, ESJ, 12(10), pp.450-600.
Fay, M., (2017). Genetic Risks, Disclosure and Foreseeable Harm: An unanswered question after
ABC v St George's Healthcare. Tort Law Review, 269(1), pp.900-1000.
Ferrara, S.D., Baccino, E., Boscolo-Berto, R., Comandè, G., Domenici, R., Hernàndez-Cueto, C.,
Gulmen, M.K., Mendelson, G., Montisci, M., Norelli, G.A. and Pinchi, V., (2016). International
11

Guidelines on the Methods of Ascertainment of Personal Injury and Damage Under Civil-Tort
Law. In Personal Injury and Damage Ascertainment under Civil Law, Springer International
Publishing, 28(5), pp.583-602.
Hanley, C., (2017). Book Review: Damages Claims for the Infringement of EU Competition
Law, by Ioannis Lianos, Peter Davis and Paolisa Nebbia.(Oxford: Oxford University Press,
2015). Common Market Law Review, 54(1), pp.304-305.
Jafarpour, A. and Spiers, H., (2017). Familiarity expands space and contracts time.
Hippocampus, 27(1), pp.12-16.
Keating, G.C., (2017). Comment on Gardner: Duty and Right in Private Law. Journal of Legal
Studies, 89(3), pp.450-500.
Maltese, D. and Farina, M., (2016). Theory of the Firm and Organisational Contracts: The
Remedial Aspects of Good Faith. European Business Law Review, 27(1), pp.51-83.
Martin, K., (2016). Topical matters pertaining to the tort of negligence-the attribution of blame.
Brief, 43(7), pp.38-70.
Perry, C., (2016). Good Faith in English and US Contract Law: Divergent Theories, Practical
Similarities. Business Law International, 17(1), pp.27-50.
Pieck, M., (2010). A Study of The Significant Aspects of German Contract Law. Annual Survey
of International & Comparative Law, 3(1), pp.7-50.
Piir, R. and Sein, K., (2016). Law Applicable to Consumer Contracts: Interaction of the Rome I
Regulation and EU-directive-based Rules on Conflicts of Laws. Juridica International, 24(6),
pp.63-70.
Schwenzer, I., Hachem, P. and Kee, C., (2012). Global sales and contract law. Oxford: Oxford
University Press.
Zalesne, D., (2017). The intersection of contract law, reproductive technology, and the market:
families in the age of art. U. Rich. L. Rev., 51(6), pp.419-637.
Zipursky, B.C., (2014). Civil Recourse and the Plurality of Wrongs: Why Torts are Different.
New Zealand Law Review, 2014(1), pp.145-169.
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