Analysis of Contract and Employment Law: Assignment Solution

This document presents a comprehensive solution to a Law of Contract and Employment assignment. The first part of the assignment addresses contractual liability, analyzing an advertisement as an invitation to treat, the postal rule, and email acceptance, ultimately determining the existence of a valid contract between Simon and Ali but not between Simon and Fernando. The second part focuses on tort law, specifically negligence, vicarious liability, and exclusion clauses. It examines the duty of care, contributory negligence, and the validity of an exclusion clause in a car park scenario involving Fem, Good Buys, and Joe. The analysis applies relevant legal principles from cases such as Donoghue v Stevenson, Carlill v Carbolic Smoke Ball Company, and others, providing a detailed legal rationale for each conclusion. The document also includes a bibliography of primary sources, including key cases.

Running Head: LAW OF CONTRACT AND EMPLOYMENT
Law of Contract and Employment
Name of the student
Name of the University
Author Note

1
LAW OF CONTRACT AND EMPLOYMENT
Issue
The issue recognized with respect to the first question is to determine the contractual liability of
Simon in relation to Ali and Fernando.
Rule
In the case of Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd1
the court ruled that an offer and invitation to an offer are different from each other. An offer has
legal significance and on the other hand there is no legal validity of an invitation to an offer or
treat. It has been ruled by the court in this case that an invitation to an offer cannot be accepted
unlike an offer. Against an invitation to offer a valid offer has to be made which if accepted turns
into a contract.
However as discussed in the case of Carlill v Carbolic Smoke Ball Company2 whether a
statement is to be considered as an offer or an invitation to treat is analyzed through undertaking
an objective rather than subjective approach. According to the objective approach whether a
statement is an offer or an invitation is identified by analyzing whether a reasonable person
would have been induced by the statement to form a contract.
In the case of AGC (Advances) Ltd v McWhirter3 it had been ruled by the court that
advertisements are generally considered as invitation to offer unless they are complete. This
means that they have all necessary elements to constitute an offer such as specification of goods,
mode of payment, price and methods of delivery.
According to the postal rule of acceptance as provided by the case of Adams v Lindsell4 an
acceptance of the offer is said to be made as soon as the person to whom the offer has been made
posts the letter of acceptance with the correct address of the person making the offer. The
acceptance is successful irrespective of whether the letter reaches its destination or not.
However according to the provisions laid down by the case of Entores v Miles Far East
Corporation5 the postal rule in relation to email acceptance have been slightly modified.
1 (1953) 1 QB 401; [1953] 2 WLR 427 (CA)
2 (1893) 1 QB 256 (CA)
3 (1977) 1 BLR 9454
4 106 ER 250; (1818) 1 B & Ald 681 (KB)
5 (1955) 2 QB 327; [1955] 3 WLR 48 (CA)

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LAW OF CONTRACT AND EMPLOYMENT
According to the case in situation where the acceptance has been made through email, the
acceptance will be considered as complete when the email reaches the mailbox of the other party
rather than when it is sent.
In the case of Hyde v Wrench6 it has been ruled by the court that an acceptance has to be
absolute in relation to the terms of the offer. In situation where there is any discrepancy in
relation to the term of the offer and acceptance than it results in a counter offer which brings the
initial offer to an end.
Application
It has been provided through the case study that an advertisement has been made by Simon in
relation to selling First edition of Lord of the Rings, signed by JRR Tolkien
for £7,000. In addition it was his email address and telephone number had been provided in the
advertisement. The advertisement has to be considered an invitation to an offer. This is because
as per the objective test provided by Carbolic case any reasonable person seeing such an
advertisement would not be induced into a contract and would rather utilize the email and
number to contact Simon. In addition as per the principles of the AGC (Advances) Ltd case
advertisements which are incomplete are presumed to be invitations.
According to the postal rule as provided by the Adams case the acceptance Fernando would be
valid as soon as the letter along with $7000 is sent by him to Simon. However there was no offer
at all in the situation the acceptance cannot be considered as legally valid. Thus there is no
contractual liability owed by Simon to Fernando.
However in relation to Ali makes an offer to Simon through email to purchase the book at $6500.
The offer was rejected by Simon who made a new offer of selling the book at $7000 and a time
limit till 2200 till accept it. Ali in return accepts the offer through email. This is because it has
been provided by the Entores case that acceptance through email is completed when the email
reaches the mail box off the other person irrespective of whether they read it or not. Thus a valid
contract has been formed between Ali and Simon.
Conclusion
6 (1840) 3 Beav 334 (Ct Ch)

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LAW OF CONTRACT AND EMPLOYMENT
There is no contract between Simon and Fernando. There is a valid contract between Simon and
Ali.
Issue
The issue as provided in the second questions is to determine any contractual or tortuous claims
which can be made by a Fem against good buys and/or Joe. In addition whether the exclusion
clause is valid in this case
Rule
As stated by the case of Donoghue v Stevenson7 there is a duty of care owed by any person to
others whose action can cause harm to such other persons. The principle provided by the case is
known as the neighbor principle through which suggests that like a good neighbor individuals in
the society have a duty of care with those who can be harmed by their actions.
In the case of Vaughan v Menlove8 the court ruled that an objective test has to be applied for
finding out that whether the duty of care has been violated or not. The objective test puts a
reasonable person in the same position as the wrongdoer and considers whether the reasonable
person would have acted with more care in the same situation. If the answer was yes the duty of
care was deemed to be breached by the wrongdoer.
In the case of Barnett v Chelsea & Kensington Hospital Management Committee9 the court ruled
that only where the injury has been caused because of the breach in the duty of care can there be
a claim for negligence. This approach provided by the court is known as the “but for” test.
An exclusion clause is added for the purpose of evading a contractual liability. However for the
purpose of being valid the cause has to be incorporated in a legal manner.
Contributory negligence as stated in the case of Nettleship v Weston10 is a concept where the
plaintiff himself has contributed to the harm caused to him by the negligence of another. In the
given situation the court analyze the extent to contribution made by the plaintiff to proportionate
the damages.
7 (1932) AC 562 (HL)
8 (1837) 3 Bing. N.C. 467
9 (1969) 1 QB 428 (QBD)
10 [1971] 3 WLR 370

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LAW OF CONTRACT AND EMPLOYMENT
In the case of Bolam v Friern Hospital11 it has been stated that whether the duty of care has been
complied by a professional or not is analyzed by comparing their actions to another professional
in the same situation.
According to the principles of vicarious liability Roe v Minister of Health12 the employer is liable
for the actions of their employees.
As provided by the case of Curtis V Chemical Cleaning Co13 the exclusion clause has to be
brought to the attention of the party before the contract is entered into for the purpose of being
legally valid.
in the case of Thornton V Shoe Lane Parking14 it has been ruled by the court that exclusion
clause can be contained in documents which are unsigned. In this case the plaintiff had been held
not to be bound by the terms of the exclusion clause as the term was so wide and destructive of
rights that for the purpose of meeting notice requirements the clause has to be highlighted
properly instead of being in small prints.
Application
In relation to the case study it has been stated that Ferm has been injured driving in the parking
owned by Goods Buy. Her injury has been caused because of Joe. He owed a duty of care
towards fem as it was obvious that his actions could harm anyone who uses the parking. The
duty of care has been breached as any professional would have ensured that such mistakes do not
occur. The injury would not have been cased to Fem if the duty of care would not have been
violated. Thus a claim for negligence established.
In addition it has been provided that Joe was an employee of Goods Buy. This means that as per
the principles of vicarious liability Goods Buy would be liable for his actions made in the course
of employment. Thus Fem has the right to make a claim against Goods Buy as she was using
their car park.
11 (1957) 1 WLR 583
12 [1954] 2 All ER 131
13 [1951] 1 KB 805
14 [1971] 1 All ER 686

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LAW OF CONTRACT AND EMPLOYMENT
However Fem had made contributory negligence by not wearing a helmet and over speeding he
bike. A reasonable person would not have done so. In the given situation any damages to be
gained by her will be reduced by the court.
The exclusion clause which was present in the car park was very wide in nature as it had the term
however arising. Thus as per the case of Joe as it was not brought to the notice of fem adequately
it cannot be considered as validly incorporated and Fem is not bound by it.
Conclusion
Fem can claim against Goods Buy for negligence amidst her contributory negligence. The
exclusion clause cannot be enforced

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LAW OF CONTRACT AND EMPLOYMENT
Bibliography
Primary Sources
Cases
Adams v Lindsell 106 ER 250; (1818) 1 B & Ald 681 (KB)
AGC (Advances) Ltd v McWhirter (1977) 1 BLR 9454
Barnett v Chelsea & Kensington Hospital Management Committee (1969) 1 QB 428 (QBD)
Carlill v Carbolic Smoke Ball Company (1893) 1 QB 256 (CA)
Donoghue v Stevenson (1932) AC 562 (HL)
Entores v Miles Far East Corporation (1955) 2 QB 327; [1955] 3 WLR 48 (CA)
Hyde v Wrench (1840) 3 Beav 334 (Ct Ch)
Nettleship v Weston [1971] 3 WLR 370
Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd (1953) 1 QB
401; [1953] 2 WLR 427 (CA)
Roe v Minister of Health [1954] 2 All ER 131
Thornton V Shoe Lane Parking [1971] 1 All ER 686
Vaughan v Menlove (1837) 3 Bing. N.C. 467