Unexpressed Intention and Contract Construction: A Comparative Analysis

The provided assignment content consists of various academic papers and studies focusing on contract law, negligence, and liability rules. The texts explore topics such as unexpressed intention in contracts, vicarious liability of firms, analogical reasoning in common law, legal aspects of cosmetic and plastic surgery, and the transmission of liability for exposure to asbestos. Additionally, the content touches upon issues related to consumer protection, contract terms, and online agreements. Overall, the texts demonstrate a range of perspectives on contract and negligence in business, commerce, and society.

Aspects of Contracts

Table of Contents
INTRODUCTION..........................................................................................................................................................3
1.1........................................................................................................................................................................3
1.2........................................................................................................................................................................4
1.3........................................................................................................................................................................4
TASK 2...........................................................................................................................................................................5
2.1........................................................................................................................................................................5
2.2........................................................................................................................................................................6
2.3........................................................................................................................................................................7
TASK 3...........................................................................................................................................................................7
3.1........................................................................................................................................................................7
3.2........................................................................................................................................................................8
3.3........................................................................................................................................................................9
TASK 4.........................................................................................................................................................................10
4.1......................................................................................................................................................................10
4.2......................................................................................................................................................................11
CONCLUSION.............................................................................................................................................................11
REFERENCE................................................................................................................................................................12

INTRODUCTION
The world is very much full with the business organisations. It can be seen that at every corner of the
world, there are various business organisation has been set up to carry their business activities. Such activities are
important to carry in order to promote the market and the profits which have been gain by the organisation. ( Marks,
Marks, Jackson, 2013.)While carrying out any business activities several procedure and formalities are to be
followed which shall include, agreements, dealings, business purposes etc. and to carry out such activities in a
presentable and appropriate manner government has introduced several norms and regulation to preserve the rights
of stake holders in the business. The following project has a detailed description about all the aspects of business
activities. The project mainly focus on law of contracts which deals with all the agreements to be signed by a
company.
TASK 1
1.1
while a contract has been signed between the parties there are various elements which are necessary to be
present while signing a contract between parties. It is important for any company or business organisation to sign a
contract in which all the necessary elements are top be present so that the contract shall be legally valid and could
raise the legal obligation on any of the party if necessary. The essential elements which are to be present in a valid
contract are:-
Presence of parties: for the formation of a valid contract, it is necessary that two main parties are to be present in the
contract that is when the contract is to be signed between the parties then it is necessary that at least two parties to be
present who are competent to the contract. Here competent mean they shall not be insolvent of minor in nature .
(Lupton, 2013)
Offer and Acceptance: while signing any contract between the parties it is necessary that offer shall be made
between the parties(Bennett, 2014.) that is one party shall make the offer to another and and an acceptance shall be
given on the part of another party on any of the legal object on which the contract is building.
Lawful Object: while making up of any contract it is important that there shall be a lawful object on which contract
is to be made. With the absence of a lawful object contract is void
Consideration and the agreement: a consideration shall be there on account of both the parties that is a promise to
enter into a contract with a lawful agreement which shall raise legal rights and duties of the parties. (O'malley,
2012.)Yes! It is important that all the elements of a valid contract shall be present in an contract. With the absence of
any of the element in contract, it will became either void or voidable contract in the eyes of law.
CASE LAW: Balfour v. Balfour.
1.2
There are various form of contract in which the party can enter into a contract. As not for every business
organisation the situation are the same, so the law has given a relaxation to the parties in order to make various
forms of contract like face to face contract, written contract, distance selling contract. But the question which has
been asked over here that is is possible for any of the business organisation to enter into a contract which has not be

done face to face then answer to this question is yes, a party or any business organisation can enter into contract
which has not be done face to face as there are various other forms of contract in which party can enter. It is
absolutely possible to have a contract signed between the parties without face to face. The other forms of contract in
which a party can enter is either a written contract or distance selling contract. In a written contract, parties are4
interested to prepare a written document which shall consist of all the necessary details a contract have. The only
difference is a written document has been prepared by the party and sign has been done. (Thomas, Wright,
2016.)Written document is kind of favourable contract between the party as when any legal allegation or obligation
arise between the parties then such shall be treated as concrete form of evidence in the court of law. Another form of
contract is distance selling contract in which the contract has been carried out on phone or at distance but such kind
of contract doesn't possess any concrete guarantee. hence, it has been observed that it is not necessary for a party to
sign a face to face contract. Contract can be done on various forms . (Willes, 2015.)What important is that while
signing any contract between the parties all the essential elements shall be present in the contract like: offer,
acceptance, competent parties, consideration, lawful object, agreement, then only a contract shall be termed as valid
and shall be enforceable by law.
1.3
In the case of Carlill V Carbolic Small ball co. it was held that an smoke ball company made an offer by
placing an advertisement in the newspaper about the influenza treatment if anybody catches the disease even on
taking the course then he shall be rewarded with some sum amount of money. (Huan, 2013.)To show the surety and
guarantee for this offer, the company has already deposited some money in the bank. But it was held in this case
with the reference to deposition of money in the bank regarding the advertisement which have been placed in the
newspaper and which is reflecting that the money has been deposited in the bank. The statement referring for the
deposition of deposit of money demonstrated intent and therefore it was not a sale puff it is quite an offer made to
the world. (Bishop, 2014)The effects of the word placed in the advertising newspaper reflects that it is a kind of
unilateral contract in which the contract can be made to group and there shall be no requirement that the offer
communicates an intention to accept, since acceptance is a kind of full performance bye its own. It is quite possible
to make an offer to the world. The defendant would have value in people using the balls even if they have not
purchased them from the market.(Carter, Courtney2016)
There may be some ambiguity in the wording this was capable of being resolved by applying a reasonable time limit
of confining it to only those who caught flu whilst still using the balls.
In this case the words which have been placed by company plays an important role and shall give very effectiveness
to the large number of people because it has intended the people for an offer to be made. And an offer is one of the
essential element of the contract. The words has also interpretated that company has deposited some amount of
money as a security for as reward for anybody who was not getting any benefit from the services from the
company. This shall assure a type of guarantee arising out of offer.

TASK 2
2.1
When any company or business organisation or any of the party sign any contract between each other it is
important that the particular contract shall consist of all the essential elements because when the elements are not
being present in the contract, the validity of a contract shall not be challenged legally by the parties. In the given
contract which has been signed between William and David has all the necessary elements present. The first key
principal for the formation of a contract is presence of competent parties. It has been seen that while signing the
contract there were 2 parties that is William and David and they were competent to each other while signing a
contract. The other important element of a valid contract is offer and acceptance.(Jain, 2015.) It is important that one
party shall make an offer to the other party and the intention to enter into a contract shall be shown by the
acceptance by other party. In case of William and David it has been observed that an offer has been made on the part
of William of making a gym to David who work as a builder for the people. It has been seen that when the offer has
been made the acceptance was given by David for construction with due consideration. Here the word consideration
mean a promise which has been made one party to another in order to incurred the profits occurring from the
contract.(Kraakman, 2013.)In this case a lawful consideration has been given on the part of David to construct a
Gym for Williams at given period of time. Both the parties have been bidden into an agreement which shall raise an
legal obligation on both the parties in case there was any breach of contract. Hence, there were all the essential
elements present for the valid contract between the parties.
2.2
It has been seen that when a contract has been signed between the party, no particular date has been
mentioned by William for completing the work but as soon as David start commencing the work, Williams informed
him about the date on which the work shall be completed. The question which has been raised here is that whether a
contract has been formed between David and William on giving additional information. Answer to this question is
that a contract has already formed between the parties regarding the construction with the providence of all the
essential elements to be present in the contract. As William has informed later about the date of completion of wok
later to David no contract has been formed then, as the additional term being included by William was not agreed
upon by David. It is an established fact that terms can be included in the contract only on mutual consent of the
parties. Moreover, there shall be a clear communication of the offer and acceptance from the respective parties. In
pursuance to the same it shall be stated that though William had communicated the revised date, there was no
acceptance from the end of David. In the case of Felthouse v. Bindley (1862) it was clearly opined by the court that
silence cannot amount to acceptance by the parties for formation of a contract. Moreover, in the case of Brodgen v.
Metropolitan Railway Co. (1877) it was additionally held that acceptance can also be made through conduct.
However, in the present case David did not accept the renewed final date and did not act in a manner to accept it.
Hence, no final or valid contract comes into existence. An additional information after signing the contract between
the parties shall have no impact on the contract(Lamond, 2014.) and hence no legal obligation shall be raised on
this. In this case when an additional information has been passed by William to David no new contract has been
formed. The rights of parties and the duties of parties shall be prevailed by the contract which has been signed first.

According to the law of contract the rights and duties shall be prevailed by previous contract and in this case it has
been seen that William made an additional information after the contract has been made and the contract was in
written from and it was not a rough draft from the parties hence the additional information shall not be considered
on the part of parties hence David shall not be held liable for any damages occurred to William if the work has not
been completed on the part of David.
2.3
(a) When the contract has been signed between the parties it come with several obligation and legal
liabilities. A legal liability to parties who have been bidden with a contract occur when there is a breach of contract
or breach of any essential condition of the contract. A breach of contract refers to when the parties who a signed a
valid contract dealing with a lawful object and consideration, shall not be able to fulfil the promises or the intention
on which the contract has been signed then it shall refer to breach of contract. A breach shall always amount top
damages to the party other then who has committed breach.(Caruso, 2016.) Such damages shall be recovered by
plaintiff on asking for the compensation. In the case of William and David, a contract has been signed between both
the parties on construction of gym. But in the valid and original contract which is in a written form it has not been
mentioned by William that on we that date the construction shall be done. He has informed David later on a
conversation in regard to particular date for finishing the work. It was present in the case that David wasn't able to
complete his work in given time and has informed, but here David shall not amount to breach of any condition of
contract as in the contract no such particular date has been mention by William of completion of work hence, David
is not liable for any breach of contract which shall not amount to rise of any legal obligation or liability on David. In
this case the position of David shall not be amounted to offender as according to law and norms he has not violated
any of the term which has been mentioned in the contract. David shall not be responsible for making any
compensation to William and he is not at all in the position of breaching a contract as it has been seen clearly in the
scenario that when the initial contract has been signed between the parties, no such date has been mentioned on
which the party has to complete the work which shall imply that there was no legal obligation on the party in context
to completion of work in a given period of time. Hence, David is not in position to held guilty for breaching contract
and its term.(Salehi, Mangion, 2014.)
(b) This shall amount to be additional term which is being included subsequent to entering into contract by
both the parties. Hence, it is imperative for William to give his consent for the same, which was subsequently given
by William. Therefore, in the present case David has not acted in breach of any of the terms, as this condition arose
due to non availability of labour and not because of negligence or delays from the end of David. Further, it is
important to note that since William accepted the requirement of the said amount and David acted to hire the labour
on additional wages, William shall be under an obligation to make the requisite payments.
TASK 3
3.1
According to the law which has been established by the government and the system of UK, Tort is referred
to any civil wrong which has been committed by person. A person makes several civil wrong which may arise to

various damages to other parties. Such wrong shall be governed and shall be completed by law of tort. When any
person commit any civil wrong it shall give rise to legal liability known liability in tort. Law of tort cover various
elements of civil wrong for an example,(Bagheri, Hassan2015.)Negligence shall be amount to Tort which will give
rise to liability on a person it can be understood by a simple example that is: A went a a famous restaurant and some
food made by chef of restaurant. After sometime A falls sick by chocking his throat and suddenly has to admitted
top hospital by which he has to fail in attending the office by week. This has resulted into loss of salary. A has filled
a case on restaurant that he fall sick by eating the food at restaurant and had to take leave from the office by which
he had to suffer the monetary loss of salary. When the investigation has been done ion the restaurant it appeared that
the chef has use expired raw material for making the dish by which the customer fall sick. According to the
operation of law and law of tort it has been clearly seen that the person has done a civil wrong by committing
negligence.(Robertson, 2012) The result of using expired food material could easily be foreseen hence the
consequences can easily be drawn therefore chef has amount to breach of duty to care which shall result into
Negligence which is a tort and liability shall be arising out of it. Liability of Tort is different from contractual
liability, liability from Tort, it has been arise from committing any tort where as on the other hand Contractual
liability when a contract has been formed between the parties and breach of contract has been done then it shall
amount to rise of contractual liability. Contractual liability is just a part of liability which has been mentioned in tort
where as on the other hand liability of tort shall covered all the liabilities which has been arising while committing a
tort
3.2
A tort of negligence can be defined as when a party breach the duty of care of a party which he is supposed
to make to another party. A claim can be filled in the court by a party on another party when all the essential
elements of Negligence has been filled. According to law of tort a person shall be able to file Claim on Negligence
only when-
Presence of 2 parties- for the claimant of negligence it is essential that two parties hall be present in a tort. For claim
in tort for Negligence if 2 or more parties are not present then the claim shall not be availed by the party
Duty to care- in this condition when there are parties, then there shall be a duty to care on the part of one party to
another. It is important for the breach of duty to care that there shall be duty to care in between the parties
Breach in duty of care- Negligence can only occur between the parties if there shall be Breach of duty of care from
one party to another. If the duty of care has be foreseen of neglected by one party then it shall amount to breach of
duty to care on the part of one party.(Hogg, 2014.)
Damages- the tort of Negligence shall only be counted when there are some damages occur to the party. Generally
in case of Negligence, when done by the party it will be on account of breach in duty to care and it shall amount to
some or the other damages to the party then only by the operation of law it shall be regarded as Negligence.
Therefore, if all these elements are present in the act of Tort which has been committed by a person then it shall
amount to Negligence by the party by which claimant shall be easy to incurred.(Amin, 2013.) If a person wants to
challenge any case of Negligence in court of law, he has to make sure that all the essential elements shall be present
to file a claim to the party.

CASE LAW:- Caparo v Dickman. It was held in this case that 3 test duty of care is whether the damage was
reasonably foreseeable,whether there was a relationship of proximity between claimant and defendant; and whether
it is just and reasonable to impose a duty. House of Lord case.
3.3
Vicarious Liability can be understood as, it is a kind of civil wrong in which when any act has been
committed by the person who has been employed in a company and that act shall be taken as civil wrong then in this
case according to vicarious liability, a master shall be held liable for the cat done by his employee in course of
employment. (Bogdanova, 2015)This liability of tort can be explained with an example, suppose A works for a XYZ
organisation who deals with the delivery of grocery items. The company offers door to door service for its customer.
An order has been placed by a customer to be delivered in one day by A, but A forgets it to deliver to customer b y
which they have to suffer embarrassment from its guest. The customer has filled a case against A. in this case A
shall not be held liable for the Act as it was in the course of employment and according to vicarious liability a
master shall be held liable for the act done by his employee in the course of employment. In the same manner one
example is, a works as a position of servant for B, during one day while working for B, A suddenly picked up a
knife and killed his neighbour as they were cunning in eyes of A and B. in this case B shall be held liable for the
murder as it has been done by its servant in course of employment.(Epstein, Lowenstein, 2012.)
But there are several case in which vicarious liability does not prevail that is there are certain situation in which
master shall not be held liable for the act done by its servant in the course of employment. For an example A works
for an office from 9 am to 6pm. One day after office hours A tried to commit theft in the neighbouring office. In this
case the company shall not be held liable for the theft as the theft was committed after hours of office. One of the
other example is when the person has been fired from the job. Suppose in this case only if A has been fired from job
and theft has been committed after firing then the company shall not be held liable for the act done by its employee
as in this case the illegal act committed is not in the duration of employment hence master shall not be held liable for
the act done by an employee who has been fired from work.(Williams, 2012.)
Hence both the situation has been explained in which vicarious liability may and may not prevail.
TASK 4
4.1
Case: Donoghue v Stevenson
the case mentioned above has been referred as one of the landmark case in tort of negligence. The facts of the cases
state that a woman name Donoghue went to a cafe with her friend to hangout. After reaching to that cafe a order has
been place, plaintiff has ordered a ginger beer for herself which has a label of 'd. Stevenson, glen lane, paisley' while
the girl was pouring beer into the mug she saw that a decomposed snail has been there in the beer. The plaintiff has
claimed that she fall ill by having that sight.(Caine, Thomas, 2012) In this case the verdict which has been given by
court of law that, a tort of Negligence has been committed on the part of the company. While packing the during
they have not shown the due care towards providing the services of beer by which it shall amounted into breach of

duty to care resulted into damages of falling sick by plaintiff. The judgement has been passed that Negligence has
been committed on the part of company by breach of duty of care and they shall be regarded to pay compensation to
plaintiff for the damages she has suffered. This case has been recorded as one of the landmark case in tort of
Negligence. The defence which has been used in this case was that there was no sufficient evidence that the
manufacture has directly involved in packaging of beer.
But in the case of Hill V Chief constable of west Yorkshire, it was held that he was a murdrer who has committed 13
murder and 8 attempt to murder in 5 years of period and hill was his las victim. Mother of hill has claimed into court
that no sufficient action has been taken by the police. In this case it has been seen that no duty of care was taken.
There was not breach of duty but there was no duty of care taken
hence both cases are different from each other.
4.2
Vicarious liability in tort can be explained as when any civil wrong has been committed on the part of
servant in the course of employment then the master shall be held liable for the act done.(Olander, Norrman, 2012.)
For vicarious liability to prevail it is important that the act shall be done by servant in the course of employment. In
the given scenario provisions of vicarious liability shall not prevail as the owner of car had already informed the
diver that any accident which has been occurred by reckless driving shall not amount to any kind of liability on taxi
service company (Spindler, 2016). Further it is important to establish a distinction between Contract of service and
contract for service, which has been reiterated in the case of Bateman v. Asda Stores Ltd. (2010). it has been opined
that contract of service represents the employment relation, wherein a vicarious liability can be imposed on the
employer for the negligent acts of the employees. Further, contract for service is an agreement wherein the employer
does not exercise supervision or control over the activities of an employee. Therefore, in this case an employer
cannot be made vicariously liable for the negligent act of the employee. Further, in the case of Ready Mixed
Concrete Ltd. V. Minister of Pensions and National Insurance (1968) the courts highlighted importance of this
distinction, and held that in order to make the employer liable under the doctrine of vicarious liability the
employment relation is required to be classified on this basis. Here in this case and exclusion clause has already
been made by the company by which the terms and condition of vicarious liability shall not prevail over. In this case
the drivers have a pre information regarding accidents and conditions hence when any driver met with an accident
due to recklessness then the company shall not be held liable and therefore vicarious liability shall not prevail.
CONCLUSION
In the following project it can be concluded that various report has been made on the various aspects of
contract and tort of negligence. In the beginning, project has described all the essential elements of contract with the
reference of the given scenario. The project also explained the importance of all the elements in a contract which
may lead to legal liability. The second part of the project deals with civil wrong that is tort. There were many cases
which have been described on negligence and vicarious liability. The project have described many example which
will show the clear aspects of Negligence in tort and vicarious liability.

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Thomas, R.W. and Wright, M., 2016. Construction contract claims. Palgrave Macmillan.
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November 2016
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aspects-of-contract-and-negligence-for-business-essay. Accessed on 7th 2016