Contract and Tort Liability Report

This report provides a comprehensive analysis of contract and tort liability, covering essential elements of a valid contract, different types of contracts, and the impact of various contract terms. It contrasts contract and tort liabilities, explores negligence and employer's liability, and discusses vicarious liability. The report also examines the Occupier's Liability Act and includes case studies to illustrate key concepts. The conclusion summarizes the responsibilities of corporations and the importance of understanding legal liabilities.

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TABLE OF CONTENTS
Introduction......................................................................................................................................3
TASK 1............................................................................................................................................3
1.1 Essential elements of contract................................................................................................3
1.2 Different types of contract.....................................................................................................4
1.3 Different terms of contract.....................................................................................................5
2.1 Impact of different types of contract and analyzing terms in contract..................................6
2.2 Claim to the reward ...............................................................................................................6
2.3 Effect of different terms in contract.......................................................................................6
Task 2...............................................................................................................................................7
3.1 Contrast contract liability and tort liability............................................................................7
3.2 Nature of liability in negligence and employers’liability......................................................8
3.3 Vicarious Liability.................................................................................................................9
4.1 and 4.2 Occupier's Liability Act............................................................................................9
Conclusion.....................................................................................................................................10
References......................................................................................................................................12
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INTRODUCTION
A valid contract generally takes place with agreement between two or more than two
parties which is enforceable by law. The UK law forms several types of laws and regulations in
order to ensure effective running of business. It facilitates management to carry out all business
activities. It is also helpful to businesses to describe the aspect of negligence of business and
several aspects of contracts. Present report covers essential elements of valid contract and
different types of contract. Further, terms of contract are explained along with different types of
contracts. In addition to this, liberalities and negligence of business have been explained in the
light of given cases.
TASK 1
1.1 Essential elements of contract
The essential elements of any contract are very important because these are the basis which
converts an agreement into valid contract. Thus, an agreement must be followed by number of
essential elements which aid to formulate a valid contract (Adams, 2010). Offer- It is the first and foremost element of contact wherein one party offers another
party to enter into agreement. Here, the person who made an offer is known as offeror
and the person who accepts the offer is known as offeree. For example, Sheena wants to
sell his bike for £750 and she make offer for the same to Joseph. Here, the contract is
initiated by Sheena. Acceptance- It is another imperative element of valid contact wherein other party accepts
the offer made by front person. As per the above example, Joseph accepts the offer made
by Sheena. It depicts that both parties agree for the same and want to enter into valid
contract (Epstein, 2010). Consideration- Consideration means something in return. Here, both parties that are
entering into contract must agree for something in return. According to the above
example, Mr. Joseph get bike and Miss Sheena will get £750. Thus, both of them have
different consideration by the formation of valid contract (Gray, 2010).
 Intention- The fourth essential element of valid contract is intention wherein both parties
intend to enter into valid contract. Under this, no any party can be forced to enter into
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contract and thus, both parties must be willing to formulate the legal contract. It
facilitates to form a valid contract and ensures safety and securities of parties that are
involved in the contract.
Therefore, presence of all these essential element give rise to valid contract. It facilitates
to perform explained duties and responsibilities of parties in an effectual manner (Jianyuan,
2010).
1.2 Different types of contract
In English Law, the entire contracts are not same due to occurrence of the same as per the
situation (Lockwood, 2011). There are following types of contracts which can take place
between parties in accordance with their needs. However, formation of each contract depend on
the situation as well as requirement of parties that are entering into contract. These are explained
as follows- Face to face and distance contract- The face to face contract takes place with oral
discussion among parties. Under this, all the terms related to contract are specified at the
time of formulation of contract. However, at the time of breach of contract, parties do not
have proof to claim for the damages. Also, it is very important for parties to be present at
the place where contract is formulated (Lawson, 2011). However, it is not necessary that
there will be some kind of verbal communication among parties that are entering in face
to face contract. On the other hand, distance contract is the one where party
communicates regarding the terms of contract. However, the modes used for
communication can be like telephone, emails and letters etc. It facilitates to save time but
some external issues like error of network give rise to conflicts among parties. The
example of distance contract is like; Mr. X who resides in London wants to sell his car in
Chicago to Mr. Y. Here, both of them can communicate for the same through telephone
or email.
 Verbal and written contract- Verbal contract is that where people communicate their
offer to front party without any kind of prior decision. For example, Mr. X went to
restaurant and ordered for some dishes and his need was fulfilled effectively. At this
juncture, contract was initiated as Mr. X entered into restaurant and ordered for some
dishes but the same is over when he left restaurant . It does not have lasting impact on the
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parties but helps to save time (Nysten-Haarala, Lee and Lehto, 2010). Furthermore,
verbal contract does not have any kind of proof and parties cannot claim to each other.
On the other hand, written contract is another type of contract which provides securities
to both the parties. For example, Mr. X wants to sell his property to Mr. Y. For the same,
both will fulfil the legal formalities like registration, stamp note, etc. It facilitates to serve
as the proof which proves to be helpful for both the parties in future.
1.3 Different terms of contract
There are different terms that are included in the contract which affect the valid contract
to a great extent. These below stated terms and conditions have direct impact on the initiation or
end of the contract. These are explained as follows-
Expressed terms
These terms are expressed either in the oral form or in written. It helps to provide detail
information related to contract which exist in the valid form. It can be in following three forms-1. Conditions- It is the major term of contract which serves as the basis of the same. In case
of breach of condition, the liable party needs to pay for the damage caused to innocent
party. According to the case of Poussard v Spiers (1876) 1 QBD 410, under this, Mademe
Poussard breached the condition as she became ill before the performance of five days
night. At this juncture, the contract turned to termination (Peel and Treitel, 2007).2. Warranties- It is another important term wherein innocent party can claim for the
damage but do not have right to terminate the contract. According to Bettini v Gye (1876)
QBD 183,Bettini was in contract to perform as an Opera singer for a three month time
span. However, she became ill within 6 days of rehearsals. Owing to this, contract was
not repudiate and only the single was replaced by other one (Warren, 2012).3. Innominate terms- Such kind of terms are flexible enough. Although, it is neither
condition nor warranty. It depicts that innocent party may be liable for repudiation of
contract did not harm that party in any way. However, it is only applicable when the
party is deprived from the whole benefits of contract (Nysten-Haarala, Lee and Lehto,
2010).
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Implied terms
Such kind of term is not expressed in any way but need to be understood by the parties.
Under this, parties need to fulfil their obligation without any kind of expression of terms. For
example, a person who is travelling in a city bus must pay for the ticket.
2.1 Impact of different types of contract and analyzing terms in contract
According the given case, Ivan sees that HRN book is not removed by Todor from
display. This is because; it was already sold to Carl but Ivan shows interest to purchase the same.
Here, Todor refused to sell the same to Ivan. According to Fisher v Bell [1961] 1 QB 394, it is
not wrong to display the book in fact, it was just an offer which was made by Ivan to sales
person. At this juncture, face to face contract took place between both Ivan and Todor where
confusion was resolved on the spot (Christudason, 2007). However, in this contract there were
no any kind of specific condition and thus contract was repudiate without any kind of
misunderstanding. Furthermore, Ivan can also reject offer made by him.
2.2 Claim to the reward
The case of Adam depicts that advertisement was placed in newspaper wherein
information was given related to reward of £1000 for winner who cross the English channel.
However, the reward was withdrawn letter on. But, Brian start the swimming after seeing first
advertisement and was not aware of the next advertisement. At this juncture, he crossed the
English channel and claimed for the reward (Fairgrieve and Howells, 2007). But Adam refused
to pay the same. Here, Adam is at fault because he placed the next advertisement on wring time
because till that time Brian already started swimming. Thus, Brian can claim for the damages
and Adam is liable to pay the same.
2.3 Effect of different terms in contract
There are three different term in contract where the present case depict that Barry got the
receipt of services. However, that receipt contained the information related to rules and
regulations but here Barry did not see the receipt. This is because receipt it not part of contract.
He just paid for the hired chair which broke down and damaged his clothes (Lockwood, 2011).
According to the Chapleton v/s Barry authority or local council is liable to pay for the damaged
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caused by damaged chair. Furthermore, exclusion clause is applicable where receipt is not
considered as the proof by local authority that they are not liable for the damaged. This is
because contract is already form between Barry and local council where offer was made and
accepted.
TASK 2
3.1 Contrast contract liability and tort liability
The difference in the liability and tort liabilities are explained as follows-
Basis of difference Contractual liability Tort liability
Reason of occurrence These kind of liability occur
due to failure of party to
performance the same
condition which were
mentioned at the time of
formation of contract.
Civil wrong or injury caused
by one party to other.
Non-liability Agreement The non-liability clauses
remain valid till the certain
time span. Furthermore role of
parties may also be changed in
certain time span (Tao.
2012).
Under this case, non-liability
statement are completed before
the offense are essentially null
and void.
Basis of damages The party which is at fault is
liable to pay for the damages.
Defender has right to claim for
both kind of damages such as
direct or indirect (Zhang,
2013).
Case reference According to Dick Bentley
Productions Ltd v/s Harold
Smith (Motors) Ltd wherein
there was misinformation aout
the mileage of the car. Owing
According to the case of
Donoghue v. Stevenson,
consumer got ill due to
consumption of infected ginger
beer. Here, court held that that
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to this, manufacturer was
liable to pay for the damages.
manufacturer owe the duty of
care.
3.2 Nature of liability in negligence and employers’liability
The negligence is occurred just because of avoidance of party's duty of care towards the
other party. It consists of four elements- Duty of care-It is the most important part where a person need to take into account duty
of care. Under this, in case of failure to perform duty of care, responsible person need to
pay for the damaged caused by him or her. Breach of duty-Under this, when a person do not perform the duty of care and ignore the
same. At the same time, failure is considered as breach of duty. However, this damages
are received in the form of injury or losses (Adams, 2010). Causation-The breach of duty is the main reason which caused just because of liable
person. It generates need to pay for the damages because other party suffer from losses or
damages. Furthermore, duty of care is not performed by liable person which in turn injury
of loses take place (Rosenthal, Lockwood and Budjanovcanin, 2008).
 Forseeability-Under this, the party who is the reason for the loss of other need ot pay for
the damages to other party. It is because he/she does not perform his duty of care and the
same is transferred to other in the form of damages. Hence, according the claim made by
innocent party, the liable person need to repay the same.
According the give case study, Roger dishwasher got rashes on his hand while working in
the hotel which was owned by Ben. Here, after injury, Roger informed to Ben regarding the case
then he denied to pay for the same. This is because Ben had performed his duty of care by
providing rubber gloves for employees working in hotel Regent. It depicts that injury occurred
due to Roger's own fault and Ben is not liable to pay for the same (Epstein, 2010).
On the other hand, if scenario is considered by focusing on non-delegable duty of care ten
Ben can be liable. It is because Ben is responsible to inspect that whether the provided safety
equipment are being used or not at workplace (Nysten-Haarala, Lee and Lehto, 2010). According
the scenario, it reflect that Ben did not take care of the same. It shows that it was employer's
liability to take care of employees who are working in the organization. Hence, Roger can be
provided for the sum of damages caused by him.
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3.3 Vicarious Liability
The vicarious liability give rise to liability of employers due to illegal act done by
employees working under them. However, employees are also responsible for their some of the
act because employers are not totally responsible.
According to the given case it can be said that cook of Hotel Regent knocked Roger with
frying pan on his head. However, he got frustrated because of Roger's intolerable attitude. At this
juncture, it might be possible that Colin informed Ben regarding such kind of Behavior of
Roger . It is also possible that Ben did not take right action on right time so Colin just heated
Roger. It depicts that it is Ben's liability to to prevent such kind of violation at workplace. This
give rise to vicarious liability of Ben and he is liable to pay for the damages. Here, Roger can
also file the complain against Colin also because he is also liable at his part. Therefore, both
parties will be held liable for the losses or industry to dishwasher. Therefore, Yes, Roger can sue
Colin for his misconduct at workplace and for the injury caused to him (Nysten-Haarala, Lee and
Lehto, 2010).
4.1 and 4.2 Occupier's Liability Act
According the Occupiers liability Act 1957 occupiers are responsible for the injuries
caused by them to other party. This is because occupiers liability act 1984 is also associated with
health and safety act. It depicts that corporation need to make safe working environment and also
the healthy environment where workers as well as services users can ensure their own safety
effectively. However, occupiers cannot be liable for the frequent visitors if they already made
efforts to provide safety among users as well as workers by placing notice.
Occupier's Liability Act 1957
 Only liable for personal injury not for property injury-According the give case study
Mark got his sunglasses damaged because of empty pool. However, corporation already
placed notice board which contained information related to closure of pool from 7 pm to
7. Also, it was clearly written that no any visitors are allowed to enter in that particular
areas especially in mentioned hours (Occupiers' Liability, 2015). This notice was ignored
by visitors named Mark and jumped into pool. At that time, he get injured and his
sunglasses also get damaged. Here, corporation will provide for the personal injury but
not for the sunglasses.
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 Defense of Volenti non fit injuria-Under this duty of care is not imposed on the
occupier because Mark was willing to take risk and ignored the notice board. Though
there was less light by it might be possible that Mark did not pay attention on notice
board. However, Mark was aware of the notice. It depicts that corporation can exclude
from the liabilities as it mentioned everything on notice board (Christudason, 2007).
Occupier's Liability Act 1984
According the occupiers liability act 1984 Hotel Regent is only liable to pay for the
personal damaged caused for the Mark due to empty pool. Owing to the following will be
considered. It depicts that occupier's health and safety act is also associated. These are explained
as follows-
 Associated with Health and Safety Act -It depicts that health and safety of workers as
well as services users need to be ensured (Lockwood, 2011).
 Warning is not sufficient- It shows that Hotel Regent need to appoint a person on that
particular areas. It assists service users to ensure their safety. For example, if company
could have placed a person at pool then he might stop Mark to do the same. Furthermore,
mere warning notice is not enough to provide safety for consumers (Rosenthal,
Lockwood and Budjanovcanin, 2008).
 Defense will not applicable-Here, defense will be applicable because Hotel Regent
should consider that health and safety. Owing to this, Mark can claim for the personal
damages which caused due to improper security system of Hotel (Gray, 2010).
 Liable for personal injury-Here, Mark jumped into the empty pool due to his own will.
However the security system of Regent hotel was not enough. Owing to this losses need
to be compensated by hotel.
CONCLUSION
The aforementioned concludes that occupier’s liability states the responsibilities of
corporation which facilitates management to take care of employees, service users and other
related affairs of organization. It can also be said that essential element makes an agreement a
valid contract which give rise to parties to take legal action against each other in case of default.
In addition to this, vicarious liability give protection to employees during their working hours
because it the prime responsibilities of employers. However, negligence of business depicts that
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a situation could be avoided by keeping into mind a duty of care. Furthermore, parties entering
into contract need to consider the different essential element so as to remain free from the losses
or injuries. At the same time, parties also need to aware of the contractual liability as well as tort
liability which facilitate to protect right of each one in an effectual manner.
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REFERENCES
Books and journals
Adams, A., 2010. Law For Business Students. 6th ed. Pearson Education Ltd.
Christudason, A., 2007. Defects in common property of strata developments in Singapore:
Representative actions against developers. Structural Survey. 25(3/4). pp.306 – 318.
Epstein, R. A., 2010. Toward a general theory of tort law: Strict liability in context. Journal of
Tort Law, 3(1).
Fairgrieve, D. and Howells, G., 2007. Is product liability still a global problem?. Managerial
Law. 49(1/2). pp.6–9.
Gray, J., 2010. Legal commentary. Journal of Financial Regulation and Compliance. 18(3).
pp.293-300.
Jianyuan, C., 2010. On the Relationship between Imputing Principles and Types of Tort Liability
[J]. China Legal Science, 2. pp. 005.
Lawson, R., 2011. Exclusion Clauses and Unfair Contract Terms. Sweet and Maxwell.
Lockwood, G., 2011. The widening of vicarious liability: implications for employers.
International Journal of Law and Management. 53(2). pp.149-164.
Nysten-Haarala, S., Lee, N. and Lehto, J., 2010. Flexibility in contract terms and contracting
processes. International Journal of Managing Projects in Business. 3(3). pp.462 – 478.
Peel, E. and Treitel, G. H., 2007. Treitel on the Law of Contract, Sweet and Maxwell.
Rosenthal, P., Lockwood, G. and Budjanovcanin, A., 2008. An overview of the UK
Employment Appeal Tribunal decisions in sexual harassment cases 1995-2005. Equal
Opportunities International. 27(6). pp.485 - 504.
Tao. Q., 2012. Legal framework of online intermediaries' liability in China. 14(6). pp.59 - 72.
Warren, J. M. C., 2012. Law and the Built Environment. Property Management. 30(2). pp.209-
210.
Online
Occupiers' Liability. 2015. [Online]. Available through: <http://e-lawresources.co.uk/Occupiers-
liability.php>. [Accessed on 27th November 2015].
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