Contract and Negligence: Elements, Liability, and Cases Analysis

This report provides a comprehensive overview of contract law and the concept of negligence. It begins by outlining the essential elements of a contract, including offer, acceptance, intention to create legal relations, and consideration, emphasizing their importance in forming a valid agreement. The report then examines different types of contracts (unilateral and bilateral, oral and written) and their implications, using case studies to illustrate these concepts. It further delves into the terms of a contract, differentiating between express and implied terms, and explaining the role of exclusion clauses. The report then transitions to the discussion of negligence, differentiating between contractual liability and misconduct liability, and exploring vicarious liability. Finally, the report analyzes the tort of negligence, its elements, defenses, and the concept of vicarious liability, providing a complete understanding of contract and negligence principles.

Aspects of contract and Negligence

TABLE OF CONTENTS
INTRODUCTION...........................................................................................................................1
TASK 1............................................................................................................................................1
1.1 Benefits of essential elements of contract.............................................................................1
1.2 The impact of different type of contracts..............................................................................2
1.3 Terms of Contract..................................................................................................................3
2.1 Impact of different type of contract.......................................................................................4
2.2 Case of Adam and Brain........................................................................................................4
2.3 Applying the elements of contract in the case of local council and Barry............................5
TASK 2............................................................................................................................................5
3.1 Difference between contractual liability and misconduct liability........................................5
3.2 Explaining the nature of liability according to the case of Ben and Regent hotel.................6
3.3 Ways by which business can be help vicariously liable........................................................6
4.1 Tort of Negligence.................................................................................................................7
4.2 Elements of Tort Negligence, defenses and Vicarious Liability...........................................7
CONCLUSION................................................................................................................................8
REFERENCES...............................................................................................................................9

INTRODUCTION
Contract is referred to the agreement between two individuals that binds them in the
lawful manner and creates the legal obligation on them. To have relational construct in the legal
manner, the formal piece of paper ratified by both the parties are necessary. The evidence or the
legal proof is required at the time of formal agreements such as at the inception of business
partnership or during the transaction of goods and services is made. The contract is signed
defining different clauses of the deals and partnership and the projected benefits accruing to both
the parties. The report outlines different type of case scenarios. Further, the report elucidates the
subjects that are linked with the contracts or legal agreements (Treitel, 2002).
TASK 1
1.1 Benefits of essential elements of contract
The intimate knowledge of the core components and the basic elements of contract are
prerequisite for the individuals to form the precise and valid contract (Clarke, 2015). The
contracts which do not inculcate these basic elements, is considered invalid and is not taken into
consideration on the legal grounds. With respect to the given context, the essential elements of
the contract are explained in detail and in the contextual manner. Offer: In order to get into a formal agreement, it is the initiation phase of the contract
from the one party to the other. The law offer is the kind of commitment or the promise
made on part of both the parties to abide the clauses and rules in exchange of doing
something. But along with this, it also empowers the parties to revoke the contract signed
by both the parties (Sutton, 2010). Acceptance: The validating step is the acceptance of the contract by the second party that
was proposed by the former one. It signifies that the second party is willing accepting all
the clauses and terms-conditions mentioned in the contract. If the second party does not
accept the offer, the contract initiated by the first party is not considered valid. Intention to enter into the legal agreement: The third and the most crucial element of the
contract is the intention of the parties to enter in the agreement. If any of the party
disagree with the further procedures, the contracts get nullified and is considered invalid
on legal grounds. The resistance from any of the party to enter into the legal relationship
will make the contract void (Stone and Devenney, 2013).
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 Consideration: Consideration refers to the naming of the agreement in the formal and the
written form. According to the given context the step Considerations is the crucial one in
regard with the framing of contract. Effective consideration has to be made by the mutual
decision making of both the parties aspiring to get into the agreement and contract. If the
proper consideration is not made, enforcing the contract and agreement becomes difficult
on both the parts (Koffman and Macdonald, 2010).
For the validation of the contract and agreement, the above three steps are essential
elements and need to be fulfilled in the legally prescribes procedure and manner. The violation of
any of the stage hinders the proceeding for the formation of contract.
1.2 The impact of different type of contracts
There are varied types of laws that possess different meaning and the consequences on
the parties that getting into the contract and legal agreement. Further, the imposition of different
contracts depends upont the situation on which it is to be used and in what context. In this regard,
different types of contracts are explained below depicting their respective implications: Unilateral contract: The type of agreement or contract in which the one party made the
commitment to the other party to do something with respect to the fulfillment of certain
specified condition (Howells, 2011). The other party holds full authority to accept or
reject to perform as per the commitment made by the former party. For instance, in 1983
the Carlil and Carbolic Smoke Ball Company made promotional advertisement for the
medicine. The company has made the statement that it will pay the reward of 100 euro's
if the customer suffer from flue using that medicine and that open offer made by the
company Carlil and Carbolic Smoke Ball is accepted by the opposite party Carlil. On
using the medicines the customers got flue and in that condition the former company who
made the statement to offer the reward was bound to pay it to Carlil (Contracts. 2014).
On the contrary, the contract could be revoked in case the customer did not get flew or
has not performed it. However, the cited company Carlil has acted according to the
commitment made and the advertisement and the offer can not be revoked on any
grounds. Bilateral contract: In this type of agreement or contract both the parties are supposed to
exchange the promises. The commitment for the task is made on both the parts. Both the
parties making promises or commitments are accountable for their acts that are to be
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performed as specified in the contract (Gray, 2010). In this type, the defendants get
prepared with the initial drafts and is sent to the claimant. Then after considering the draft
the claimant are supposed to make changes and return it to the defendant. There can be
cases when the defendant accept the draft and does not convey if he has accepted the
changes. In this condition the contract is framed in which both the parties are liable to
perform the task.
 Oral and written contract: In oral contract the parties meet personally and uses the
medium mails and telephonic conversation to formulate the contract whereas in the
written contract the parties made decisions with mutual consent with respect to the terms
and conditions.
1.3 Terms of Contract
A contract is a legal document which demands effective measures of legal prospective to attain
contractual obligations. The terms of a contract are segregated in different categories to attin the
contractual needs. Various types of terms which categorises the contracts are:
 Expressed terms: These are the major terms of the contract which are effectively
expressed in the contractual terms in written or oral form. These terms are explicitly
mentioned in an contractual deed to develop an effective legal obligation. The expressed
terms define the liabilities of the parties clearly to enhance better understanding of the
contact. The types of expressed terms for the contract includes conditions, warranty and
innominate terms (Fried, 2015).
◦ Conditions are the major terms of the contract which demand effective performance.
The non performance of these terms by any party may cause in ending the contract.
◦ Warranty are considered as the secondary terms of the contract which clearly
specifies the obligations of the parties involved. The non performance of these terms
do not result in nullifying the contract but may make the party liable for the damages
caused.◦ Innominate term is the category which is neither a condition nor warranty. These are
the exclusive terms of the contract.
 Implied Terms: These are the terms which are not expressed in written form or are
discussed upon by the parties. These are the basic legal requirment for the parties to be
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attained in order to develop a legal contract (Falk, Huffman and Macleod, 2015). For
example sales of goods act demands the following implied terms:
◦ The seller must have the right to sell the product
◦ The product mus match its description◦ The product quality must be satisfactory
 Exclusion clause: This terms of the contract is included to reduce the libility of one
party. These terms are considered ineffective for a contract if not included under required
conditions.
2.1 Impact of different type of contract
According to the specific case of Ivan. In this case a book was displayed in the shelf of
Todor's bookshop and Ivan has shown his willingness to purchase the HND business book. The
key elements of the contract, the offer, acceptance are implemented in the specified case. In this
regard, the shop has shown the interest and intention to offer the book to Ivan the process in done
in the form of displaying the book in the shelf. The offer made on the part of Todor's shop is
accepted by Ivan (Cartwright, 2011). Later on it was identified that the book is already sold to
some other person. The contract formed between Ivan and the bookshop and the conditional term
get implicated. But the bookshop is not accountable to accept the offer due to the absence of
implied term and conditions. Further, there is no accountability on the grounds of bookshop to
pay any damage.
2.2 Case of Adam and Brain
As per the given case, it can be declared that Brian is eligible to claim the damage from
the Adam that is occurred after watching the advertisement. As per the case, Brian had crossed
the English channel from Dover to Calais after watching the advertisement with a purpose to win
the reward of £1000. However, the provisions of liability of misconduct as well as written
obligations can be applied in this case. With reference to the given case, liability of misconduct
describe that it is the responsibility of the advertiser to fulfill the promises that their firm has
made. However, if they do not do so than advertiser will be liable for legal action. As an
outcome, Adam has to pay the damage cost which is occurred by Brian. Similarly, The
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provisions of misconduct and obligations will be also applied on the given case. As per these
obligations the party will be liable for its misconduct act if it does not fulfill the terms and
conditions of the contract (Miller and Cross, 2012).
2.3 Applying the elements of contract in the case of local council and Barry
There are various elements of contract is applied in the Local Council's case and Barry.
This case belongs to offer and acceptance. Local Council has given offer to Barry to buy tickets.
The payment of tickets has been made by Barry which declares that Barry has accepted the offer
with all the terms and conditions of Local Council.
Moreover, the given contract display's the significance of written contract. The contract is
written because the Local Council has notified the ticket with all the terms and conditions. In
addition to this, with regards to terms of legal bodies exclusion clause is applied to the given
case. This is because, the Barry has accepted the ticket which means that he read all the terms
and conditions of the contract and satisfied with it (Caiado and Salgado, 2010). Thereby, it can
be said in the given case that Barry does not have any right to claim for the damage. It is because
of the existence of inclusion clause.
TASK 2
3.1 Difference between contractual liability and misconduct liability
Basis Contractual Liability Misconduct Liability
Enforcement of
particular
liability
Contractual liability is imposed when parties
are found as incapable to fulfill the
obligations of contract in a efficient manner.
Misconduct liability happen
because of the act of
negligence. This liability is
enforced when parties suffer
from negligence act performed
by other party to whom the
contract is made.
Obligation
imposition
According to this, offer is made in front of
the party if they want to bound under
particular relationship or not (McKendrick,
2014).
This liability is obligatory by
law. Thereby, the parties do
not get any choice with respect
to the imposition.
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Restriction This liability is restricted between the parties
who are in a legal relationship
Restrictions is not followed
under misconduct liability.
Each member of parties have
to build upon the obligation.
Decision
regarding the
damages
In this liability the damages are provided to
party on the ground of contract.
However, all the provisions of
understood terms should be
applied. Thereby, the decision
with regards to damages that is
given to parties is decided by
the law.
3.2 Explaining the nature of liability according to the case of Ben and Regent hotel
The nature of liability in the situation of negligence can be treated as an act of
misconduct. Thereby, this is the act in which the harm is caused to other party because of
negligence of respective person who live in social control of care position. With regards to this, it
is identified in given case that dishwasher of the regent hotel, named Roger, has discovered
rashes on his hand because of long duration of washing. The hotel has given him all king of
safety equipment like hand gloves, but he does not use it (Giliker, 2010). Thereby, The owner of
the hotel Ben is not liable for the injury of Roger under the act of negligence. This is because
being an owner he has provided all the safety equipment to the employees. However, if
employee doesn't use it than owner is not liable for the injury. Moreover, according to the terms
the party who got injured has to prove that injury has been caused due to negligence of other
person. In this situation party is liable for the payment of damage. In the given case, Ben has also
made efforts for providing safe working environment to employees. Thereby, the owner of the
hotel is not liable for the injury of Roger.
3.3 Ways by which business can be help vicariously liable
According to the vicarious liability provision, the party will be considered as vicariously
liable for the act if their act was the reason for the injury caused to other party. In the given case
of Colin and Roger, Roger got injured when Colin hit him by frying pan. According to the case
Ben is liable for the act of Colin. Because, Ben resides in duty of care position as per this
position Ben has to measure with respect to safe working environment to the employee.
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However, rather than presence of given characteristic Ben is not liable for Roger's injury but
Colin is. Thereby, the Roger has full authorization to file the case against Colin (Hakanen and
Roodt, 2010).
4.1 Tort of Negligence
Tort law can be referred as an occupier’s liability. Considering the given scenario, it can be
state that Mark (customer of mentioned hotel) has decided to swim in the pool. From this, he got
injured by jumping into the pool. It is been found that Mark has overlooked the notice that been
placed besides swimming pool. Another consequences of the ignorance of notice board is that an
expensive sunglass of Mark is broken. In this regard, by applying the occupier liability, the
occupier of the hotel possesses the liability that it must emphasize on safety of their guests. But
the fact cannot be denied that Mark got injured due to his own ignorance. With this scenario, it
can be state that hotel owner is not liable for this particular incidence and also he doesn’t liable
to pay any damage to Mark as well (Van der Puil and Weele, 2014).
4.2 Elements of Tort Negligence, defenses and Vicarious Liability
There are varied set of elements involves within Tort of Negligence. Same has been
enumerated below:
 The first and foremost element is duty of care which signifies that individual that reside
in specific position must incorporate required measures with context to offer safe and
secure working area to its employees.
 Another element in this regard is related to Breach of Duty. Here, respective person will
be state accountable for his/her activity in case if he/she is fail to perform its duty in
desired manner (Warren, 2012).
 Third element is that act will be consider as negligent if anyone gets injured.
 Loss of capital must be caused to the parties
On the other hand, vicarious liability is also the part of tort law. It includes three sort of
elements:
 Party will be referred as vicariously liable if the relationship of employee and employer
exists.
 Harm is caused to the person at the time period of employment (McKendrick, 2014).
These are the elements that been applied in the mentioned scenario. In this, Regent hotel
possess the duty of care and therefore the hotel is accountable for keeping safety and security for
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their guest. But, the given case doesn’t fit with the elements of vicarious liability and tort of
negligence as all efforts has been made by the hotel for safety. It is the mistake of Mark that he
has ignored the notice board that been place bruised pool. In this context Mark cannot ask for
losses of his goods also.
CONCLUSION
Contract or the legal agreement is formed in the formal manner with the consideration of
all the essential elements such as offer, acceptance, intention to get into the agreement and the
consideration. These are the prerequisites of any contract, in absence of any of these nullified the
agreement and makes it void. Further there are different types of contracts based on the
involvement and the part played by the parties to make the commitments. Further, the
implication of the different types of contract and their terms and conditions on different situation
is evaluated and the consequences on theses cases is assessed.
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REFERENCES
Books and Journals
Caiado, V. N. and Salgado, M. S., 2010. Contract Management and its Influence Over Design
Quality. Architectural Engineering and Design Management. 6. pp.153-157.
Cartwright, J., 2011. Choice is good. Really. European Review of Contract Law. 7(2). pp 335.
Falk, A., Huffman, D. and Macleod, W. B., 2015. Institutions and Contract Enforcement. Journal
of Labor Economics. 33(3). pp. 571-590.
Fried, C., 2015. Contract as promise: A theory of contractual obligation. Oxford University
Press.
Giliker, P., 2010. Vicarious liability in tort. Cambridge University Press.
Gray, J., 2010. Legal commentary. Journal of Financial Regulation and Compliance. 18(3).
pp.293-300.
Hakanen, J. J. and Roodt, G., 2010. Using the job demands-resources model to predict
engagement: Analysing a conceptual model. Work engagement: A handbook of essential
theory and research. pp.85-101.
Howells, G., 2011. European Contract Law Reform and European Consumer Law–Two Related
But Distinct Regimes. European Review of Contract Law. 7(2) pp173-194.
Koffman, L. and Macdonald, E., 2010. The law of contract. Oxford University Press.
McKendrick, E., 2014. Contract law: text, cases, and materials. Oxford University Press.
Miller, R. and Cross, F., 2012. Business Law, Alternate Edition: Text and Summarized Cases.
Cengage Learning.
Stone, R. and Devenney, J., 2013. The modern law of contract. Routledge.
Sutton, M., 2010. Record rewards: the effects of targeted quality incentives on the recording of
risk factors by primary care providers. Health economics. 19(1). pp. 1-13.
Treitel, H. G., 2002. Some landmarks of twentieth century contract law. Oxford University Press.
Van der Puil, J. and Weele, A., 2014. International contracting. London: Imperial College Press.
Warren, J. M. C., 2012. Law and the Built Environment. Property Management. 30(2). pp.209-
210.
Online
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Clarke, P. 2015. Contract and Tort Law. [Online]. Available through:
<http://www.legislation.gov.uk/ukpga/1984/3/data.pdf>. [Accessed on 8th December
2015].
Contracts. 2014. [Online]. Available through:
<http://legal-dictionary.thefreedictionary.com/Types+of+Contracts >. [Accessed on 7th
December 2015].
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