Contract and Tort Law: Comprehensive Analysis of Contracts and Torts

This report offers a comprehensive analysis of contract and tort law. It begins by outlining the essential elements required for a valid contract, including offer and acceptance, intention, consideration, and privity of contract, supported by relevant case scenarios. The report then delves into different types of contracts such as unilateral, implied, and executory contracts, explaining their impact. It also examines various contractual terms, differentiating between expressed and implied terms, conditions and warranties, innominate terms, and exclusion clauses, providing examples and case precedents. The second part of the report contrasts liability in tort with contractual liability, highlighting the differences in the basis of occurrence, the relationship between parties, and the basis of damages. The report analyzes several case studies, including scenarios involving invitation to treat, unilateral contracts, and written contracts, applying legal principles to determine outcomes and liabilities. The report concludes with a comparative analysis of contract and tort law, summarizing the key differences and providing a deeper understanding of both legal areas.

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TABLE OF CONTENTS
Introduction......................................................................................................................................3
Task 1...............................................................................................................................................3
1. Importance of essential elements required for the formation of valid contract.......................3
2. Description of different types of contract along with their impact..........................................4
3. Description and impact of different type of contractual terms................................................5
4. Case study of Ivan and Todor..................................................................................................6
5. Case study of Adam and Brian................................................................................................6
6. Case study of Barry and local council.....................................................................................7
Task 2...............................................................................................................................................8
Contrast liability in tort with contractual liability.......................................................................8
2. Scenario A................................................................................................................................9
Scenario B....................................................................................................................................9
Case of Mark and Regent Hotel...................................................................................................9
Conclusion.....................................................................................................................................11
References......................................................................................................................................12
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INTRODUCTION
Contract and negligence law is introduced to provide norms regarding standard duties of
parties in order to protect interest of public. Individuals are required to act in accordance with the
provided duties by law in order to discharge their obligations in a proper manner (Adams, 2010).
Present study highlights key provisions of the contract and negligence legislation. For this
aspect, essential elements of contract will be explained. In addition to this, description of
contractual terms and different types of contracts will be provided along with its impact. In
second part of the report, negligence law will be explained along with provisions of defences and
vicarious liability. Described provisions in this study will be linked to provided case scenario for
justified recommendations.
TASK 1
1. Importance of essential elements required for the formation of valid contract
For the formation of valid contract following elements are required to present in the agreement
of parties: Offer and acceptance: Without presence of offer and acceptance, agreement cannot be
created between parties. Offer is expression of willingness given by the offeror to the
specific party or to the general public (Blum, 2007). Further, acceptance is consent
provided on the given offer. Acceptance is said to be valid if it is not supported by
modification and it is given by the party to whom offer is provided.
◦ Case scenario: In the case of Fisher v Bell [1961] 1 QB 394 court of law had not
considered the contractual relationship between parties because display of goods had
been considered as invitation which cannot be considered as offer. In the case
precedent of Felthouse v Bindley [1862] court had declared the mere silence cannot
be considered as acceptance by the offerree. Intention- In accordance with this element, parties entering into contract must have
intention to create enforceable relationship in order to provide satisfactory performance
(Emerson, 2009). However, this element is not expressly stated but in charitable and
domestic contract this element is not assumed.
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◦ Case scenario- In the case of Balfour v Balfour [1919], agreement created between
parties was not held enforceable by court of law because it was created between
husband and wife. As a consequence, it was considered as domestic agreement. Consideration : Consideration can be termed as anything either monetary or non-
monetary paid by one person to another in return for benefits received by him under a
contract. The paid part should be of value (Frey and Frey, 2001).
◦ Case Scenario : In accordance with the case of Thomas V Thomas, anything whose
value can't be identified or is of no value will not be considered as Consideration, also
it should be paid in exchange of benefits/services received from other party (Lawful
consideration,2011). Privity of Contract : It states that any obligations can be imposed only on the parties to
the contract, not on any other person. No legal action taken by third party stands valid if
he had taken such action beyond the benefits entitled to him.
◦ Case Scenario : As per the judgement provided in the case of Tweddle V Atkinson,
any person other than a person to contract (Third Party) cannot pay consideration.
2. Description of different types of contract along with their impact
In order to have formation of contractual relationship participators mostly focuses on
different forms of contract. In the support of this, it can be said that the diverse kinds of contract
influence contractual roles and responsibilities of all parties (Hasen, 2010). By considering this
aspect, provided statement is not true. Classification of diverse kinds of contracts can be as
follows: Unilateral contract- It is one of critical legislation in which offeror is having number of
boundations to perform diverse actions under contract. In this respect, the offer is mostly
presented in general manner and all parties have eligibility towards acceptance (Heine
and Kerber, 2002). In order to understand unilateral contract, learner can focus on case of
Carlill v Carbolic smoke ball. Implied contract- In this contract the actions plays key role in formulation process rather
than verbal or written statement. In other aspect, implied contract is also considered as a
conduct contract (Middlemiss, 2011). Moreover, to have better understanding about this
contract the case of travel in local bus can be considered.
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 Executory contract- It is an agreement in which two or more parties agreed to
accomplish the performance as per consideration of later date (Frey and Frey, 2000). In
this it is necessary for all parties to have improved focus on provision of this contract and
ensure that the all parties are completing their performance in prior way to meet the
stipulated date.
3. Description and impact of different type of contractual terms
Segregation of contractual terms is not an easy task as breach of any of the contractual
terms leads to the imposition of contractual obligation on party in fault (Milner, 2011). These
terms can be bifurcated on the basis of damages to be paid by faulty party. Contractual terms can
be said as rules & guidelines to be followed to make contract legally enforceable. Terms of
Contract can be classified as below :
Expressed and implied terms
Expressed terms include those terms which are decided by parties to contract by their
mutual assistance. These terms can be inserted either in oral or written manner (Ramanathan,
2014). Implied terms includes those terms which are imposed by any law or statute like terms
implied by Customs Act, terms given under various sections of various acts. These terms are not
expressly stated in contractual deed.
Conditions and warranties
Conditions are the primary stipulations of the contract. Breach of conditions will
invalidate the contract or result in discharging of the contract. On the other hand warranties are
ancillary terms as it do not result in discharging of contract. Party is liable to provide damages in
situation where these terms are not satisfied.
Innominate terms
These are indeterminate terms which are neither a condition nor a warranty. These lie
somewhere between a condition and warranty (Milner, 2011). In such terms, innocent party is
entitled for the termination of contract only if they are deprived from entire benefit.
Exclusion clause
Insertion of these terms is done to make reduction in contractual obligation in situation
where inappropriate performance is provided by the parties (DiMatteo, 2012). These terms are
considered to be part of the contract only if it is properly inserted and provision of loss is covered
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in the provided clause. As per the case precedent of Chapleton v Barry, statement inserted into
the ticket is not part of contract as ticket is merely a receipt. Thus, exclusion clause inserted byb
defendant was not held valid.
4. Case study of Ivan and Todor Invitation to treat- Invitation of treat can be defined as expression of willingness for
entering into negotiation. In accordance with the case of Pharmaceutical Society of Great
Britain v Boots [1953], response of invitation is offer not acceptance. Further, goods on
display is invitation by shopkeeper not offer. In accordance with the described case, book
on display is invitation. Written contract- This contract is created in situation terms are stated in written manner
of the parties. By considering the present situation, there is verbal agreement between
parties. Acceptance- According with the case of Pharmaceutical Society of Great Britain v Boots
[1953], trader is not bounded to accept the offer provided on the invitation. In the
described case Todor is obliged for the acceptance on the offer provided by Ivan. Expressed terms- As per the given case situation, expressed term of the agreement is
price of the book.
 Condition- Condition of the contract is expressed term stated by the parties.
In accordance with cited case, there is contractual relationship between Ivan and Todor. It
is because; Todor had not provided acceptance on the offer given by Ivan.
5. Case study of Adam and Brian Unilateral contract- Unilateral contracts are those enforceable agreements in which offer
is provided in general. In accordance with the given case situation, Adam had provided
unilateral offer through advert in order to declare reward for the person who will cross
English Channel first. Intention- In offer, there is implied presence of intention of the offerree to enter into a
contractual relationship. By considering this aspect, it can be said that Adam had
intention to provide reward to the person who will provide performance in accordance
with his requirements.
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 Offer and acceptance- Advertisement by Adam will be considered as offer while
performance given by Brian will be considered as acceptance. Expressed term-Term in the provided advertisement by Adam will be treated as
expressed terms.
 Condition- Declaration of reward for the person who will provide performance will be
considered as condition of the contract.
In accordance with the case facts of Carlill v Carbolic Smoke ball, Adam is liable to
provide reward to Brian for his performance because revocation of offer was not in reasonable
time. It is because; Brian had started his performance prior to the arrival of second
advertisement.
6. Case study of Barry and local council Written and bilateral contract- In accordance with the provided case scenario, there is
written contract between parties as it was supported by ticket. Further, agreement was
formed by the mutual exchange of promises due to which there is existence of bilateral
contract. Condition- According to the provided case situation, condition of the contract is price
charged by local council and terms of the hiring services. Expressed term- Condition of the contract will be considered as expressed terms.
 Exclusion clause- Statement stated on the backside of the ticket will be considered as
exclusion clause. It is because, it is making reduction in obligation of local council.
As per the case precedent of Chapleton v Barry, statement inserted into the ticket is not
part of contract as ticket is merely a receipt. By considering this aspect, exclusion clause is not
properly incorporated by local council and they will be liable to provide damages for the injury
occurred to Barry.
TASK 2
1. Contrast liability in tort with contractual liability
Provision of liability is incorporated by English law in order to compensate the injury of
innocent part. These liabilities are part of the civil law. Description of difference between these
obligations is enumerated below:
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Basis of difference Contractual liability Tort liability
Reason of occurrence Contractual liability is
imposed by court of law if
terms of the contract are not
satisfied in proper manner.
Dahlia v Four Millbank
[1978] Ch 231
Liability in tort is imposed in
situation where defendant fails
to satisfy their general duties.
Henderson v Merrett
Syndicates [1995] 2 AC 145
Relationship between parties There is existing relationship
between parties because
contract is formed by their
mutual consent.
Avery v Bowden (1855)
In tort law, relationship is
imposed by court after the
misconduct of defendant.
Donoghue V Stevenson
Basis of damages Damages in contractual
liability is provided to bring
claimant in position if proper
performance is provided by
defendant.
Scammell & Nephew v.
Ouston [1941] AC 251
In tort liability damages are
provided for the compensation
of injury occurred to innocent
party.
Barnett v Chelsea &
Kensington Hospital [1969] 1
QB 428
2. Scenario A
In order to recover damages for the negligent action, claimant is to satisfy following
principles of the negligence Duty of Care : It's a duty of a person to act with due care in order to prevent injury of
innocent party (Owen, 2007). This duty was described in the case of Donoghue V
Stevenson. In this case defendant was manufacturer of drink thus he was responsible to
operate in proper manner for the prevention of risk of customers.
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 Breach of Duty : If duty wasn't exercised with due care it would be termed as Breach of
Duty. For this aspect case of Caparo Industries pIc v Dickman [1990] 2 AC 605 can be
referred. Causation: Defendant will be liable to pay damages for such injury only if action
undertaken by them is causing harm/injury to the claimant. For this aspect case of Ross V
Caunters 1980 can be referred.
 Remoteness of damages: Damages caused by actions of any person on breach of duty
should be identifiable and measurable i.e it should not be too remote to measure (Rose,
2009).
In accordance with the provided case situation, Ben is hotel owner. As an owner, he has
duty to provide proper working environment to their employees. For this aspect, they are
required to assure that proper precautions are taken by organization for the prevention of risk of
injury of employees. By considering consequences of dish washing safety gloves were provided
by Ben but these were not used by the Roger. Due to this aspect, Ben is not held liable for the
damages occurred to Roger.
3. Scenario B
In accordance with the provisions of vicarious liability, influential party is also
responsible for the damages occurred due to negligence of innocent party. This obligation is
imposed on the controlling party because they were in position to control their actions and they
can prevent negligence by taking proper care (Rose, 2009). On the basis of this concept,
employer is said to be responsible for the actions of employees if the misconduct is occurred in
course of employment. In accordance with the case facts of Lister v Hesley Hall Ltd [2001]
UKHL 22, employer was also held obliged for the case of sexual abuse occurred by their
employee.
According to the given case situation, Roger was injured due to violent behavior of Colin
at work place. As an employer, Ben had duty to ensure that employees are not engaged in violent
actions with their subordinates even they are frustrated from their work. Ben failed to do so thus
he will be responsible for the action of Colin as per the approach of vicarious liability. Vicarious
liability does not relinquish obligation of original tortfeasor thus Colin will also be held liable for
this negligence (Levinson, 2005).
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4. Case of Mark and Regent Hotel
Defendant is not obliged to compensate the injury of the claimant if they are able to take
benefit of any of the following defences:
Defense Description Case
Contributory negligence Provision of this defense is
applicable in situation where
negligence action had resulted
from the contribution of both
defendant and claimant
(Twomey and Jennings, 2010).
According to the case facts of
Davies v Swan Motor co
[1949] 2 KB 291, claim of
defendant was held invalid
because he had contributed in
the negligent action.
Volenti non fit injuria This defense in provided to the
defendant in situation where
claimant voluntarily put
themselves in a situation
where there is possibility of
injury.
In the case of Nettleship v
Weston [1971] 3 WLR 370,
claim of claimant was
invalidate as they was aware of
the risk but still they continued
their action and injury was
occurred.
Ex turpi causa This defense is provided in
case situation where action by
defendant is neither immoral
nor unjust (Nystén-Haarala,
2010).
This defense was applicable in
the case of Kirkham v Chief
Constable of the Greater
Manchester Police [1990] 2
QB 283 in order to protection
to defendant.
Occupiers Liability Act, 1957
In accordance with the provisions of this Act, duty of occupier is limited to the
prevention of personal injury. This duty can be prevented by providing proper warning and
notices (Oughton, Marston and Harvey, 2007). For this aspect case of Roles V Nathan 1963 can
be referred. In this case, claimant was not able to recover the damages as occupier had provided
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warning notice which was ignored by innocent party. By considering this aspect, in present case
claim of Mark is not valid as warning noticed was provided by the hotel. Further provision of
defence of volenti non fit injuria will be applicable.
Occupiers Liability Act, 1984
This Act had enhanced the duty of occupier as they have to prevent risk of property
injury along with the personal injury. As per the provision of s.1(1)(a) Occupiers Liability Act
1984 occupier is not responsible for the damages if injury does not occur from the negligence of
premises but carelessness of claimant. In these cases further provision of defence of volenti non
fit injuria will be applicable (DiMatteo, 2012). By considering this aspect, owner will not be
responsible to provide damages to the Mark for property injury. However, they will be liable for
personal injury because notice is not sufficient measure for the prevention of risk.
CONCLUSION
In accordance with the present study, it can be concluded that contracting parties are
obliged to satisfy contractual terms in proper manner else they will be liable to provide damages
to the innocent party. Parties are required to take care of their actions in situation where
contractual relationship do not exist. This obligation is imposed by negligence law. Liability for
damages can be relinquished in situation where defendant is in position to take benefit of
defences provided by English law. Further, employer is obliged to take care of actions of
employees else they will be held vicariously liable to provide in order to compensate the injury
of innocent party.
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REFERENCES
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International Trade Law and Policy. 11(1). Pp.27-43.
Emerson, W. R., 2009. Business Law. Barron's Educational Series.
Frey, A. M. and Frey, H. P., 2001. Essentials of Contract Law. Cengage Learning.
Frey, P., and Frey, M., 2000. Essentials of Contract Law. Cengage Learning.
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Law. Nelson Thornes.
Heine, K. and Kerber, W. 2002. European Corporate Laws, Regulatory Competition & Path
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Middlemiss, S., 2011. The psychological contract and implied contractual terms: Synchronous or
asynchronous models?. International Journal of Law and Management. 53(1). pp.32-50.
Milner, A., 2011. Contract interpretation: potential for relaxing the exclusionary rule.
International Journal of Law in the Built Environment.3(3). pp.205 – 221.
Nystén-Haarala, S., 2010. Flexibility in contract terms and contracting processes. International
Journal of Managing Projects in Business. 3(3). pp.462 – 478.
Oughton, D., Marston J. and Harvey B., 2007. Law of Torts. Oxford University Press.
Ramanathan, T., 2014. Law as a Tool to Promote Healthcare Safety. Clinical Governance: An
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Twomey, D., and Jennings, M., 2010. Business Law: Principles for Today's Commercial
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Online
Lawful consideration.2011. [Online] Available through: < http://www.bms.co.in/explain-lawful-
consideration-sec-23-to-25/>. [Accessed on 14 December 2015].
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