Legal Analysis: Contractual Elements, Terms, and Negligence

This report delves into the core principles of contract law and negligence, analyzing the essential elements required for a valid contract, including offer, acceptance, and consideration. It explores the impact of different contract types, such as unilateral and bilateral contracts, and examines various contract terms, including express, implied, and in nominate terms, illustrating their effects through case scenarios. The report further investigates the elements of tort and contractual liability, comparing their objectives, damages, and the relationships between parties. It highlights the nature of liabilities in negligence and vicarious liability, providing insights into how businesses can be held accountable for the actions of their employees. The analysis includes real-world case studies and the application of legal principles to business situations, offering a comprehensive understanding of contract and tort law.

ASPECTS OF LAW AND
NEGLIGENCE ACT

Table of Contents
INTRODUCTION ..........................................................................................................................3
TASK 1............................................................................................................................................3
1.1 Essential elements of a valid contract ..................................................................................3
1.2 Impact of different type of contract .....................................................................................4
1.3 Analyzing the terms of contract............................................................................................4
TASK 2............................................................................................................................................5
2.1 Elements of a contract in a given scenario............................................................................5
2.2 Law of terms in different contract in the given business scenario........................................5
2.3 Effects of different terms of contract on the given case scenario.........................................6
TASK 2............................................................................................................................................6
3.1 comparison between liability in tort and contractual liability...............................................6
3.2 Nature of liabilities in negligence........................................................................................7
3.3 How business can be vicariously liable................................................................................8
4.1 Elements of tort of negligence and defenses in different business situations......................9
4.2 Elements of vicarious liability in given situation..................................................................9
CONCLUSION..............................................................................................................................10
REFERENCES..............................................................................................................................10

INTRODUCTION
Contract is an agreement in between two or more parties. A contract is said to be a legal
agreement when both the elements of a valid contract are present (Lipshaw, 2011). Most
important elements that are required in a contract are offer and acceptance. If both these elements
are present then only a valid contract can be formed. In the following report, importance of
essential elements of a valid contract is depicted with its impact on different types of contract. In
addition to this, different terms of contract are also mentioned. In the following report, various
case scenarios are discussed by considering the elements of a valid contract. Along with this,
nature and elements of contractual liability, liability in tort and vicarious liability are mentioned.
TASK 1
1.1 Essential elements of a valid contract
In order to form a valid contract, availability of these elements is very important. If any
of the elements is missing then in that case, a valid contract cannot be formed. Some of the
elements are as follows:-
Offer: - It is an act of putting something in front of other with the purpose to sell it to
someone else. In order to form a valid contract, availability of this element is very important. An
offer can be in a tangible or intangible form.
Case: - Harvey v Facey [1893] AC 552 Privy Council. As per this case, Facey has only
mentioned the lowest price of selling a Hall pen to Harvey but he has not indicated his intention
to sell out the pen at £900 to Harvey.
Acceptance: - It is an act of accepting something that is offered by someone else for the
purpose of purchase (Beever, 2007). Acceptance also show the intention of an individual
whether he is ready to accept the offer or not. It can be in both oral and written form.
Case: - Felthouse v Bindley [1862] EWHC CP j35 Court of Common Pleas. In this case, no
contract has been formed. Because nephew has shown his intention to purchase the horse form
his uncle, he did not reply and at the same time, the horse was sold out in an auction. In this case,
a contract is not formed because silence cannot be treated as acceptance.
Consideration: - It is an act in which one party promises to another in exchange of
something at the time of formation of a valid contract (Caruso, 2007).

Case: - Lampleigh v Braithwaite [1615] EWHC KB J17. As per this case, a condition of a valid
contract occurs. In this case, defendant has promised to pay £100 to the claimant if he was able
to get pardon from a king. The claimant has done everything to get pardon and he was even
successful. But as per the promise, defendant refuses to pay.
1.2 Impact of different type of contract
Unilateral contract: - It is a type of contract in which only one party is liable to create a
legal contract. This type of contract is also known as one sided contract (Ciccarelli and
Ciccarelli, 2005). Formation of unilateral contract starts through advertisement in newspaper and
magazines and from television.
Impact: - These types of contracts can be canceled at anytime but once the offer has been
accepted and acceptor started performing it, then in that case, a contract cannot be revoked.
Bilateral contract: - In this type of contract, both the parties are liable to perform the act.
In this, both the parties with mutual understanding make a contract. In simple words, it can be
said that it is the exchange of correlative promise between both the parties (Koffman and
Macdonald, 2010).
Impact: - Both the parties are liable to follow the contract when an offer and acceptance has been
made.
1.3 Analyzing the terms of contract
Express term: - Express terms are the terms that are expressed in the contract at the time
of its formation. These terms can be presented in oral and written form. In other words, it can be
said that these terms are directly presented at the time of formation of a contract.
Effects: - Including these clauses in the contract does not create any misunderstanding
among parties.
Implied term: - These are the terms that are included in the contract but are not directly
expressed in a contract (Cimino, 2010). In simple words, it can be said that these terms are
included in the contract but are not expressed in the contract.
Effects: - Availability of this type of term can create a misunderstanding among parties
In nominate terms: - These are not the terms that can be considered as a warranty nor it
can be considered as condition. Availability of these terms highly depends on the condition. In
nominate terms are also known as intermediate terms.

TASK 2
2.1 Elements of a contract in a given scenario
As per the given scenario, Ivan went to a Todor's bookshop where he found a book which
was of £50.00. He took the book and went to Todor to purchase the same, but Todor refuses to
sell the book because he has already sold the book to Carl and he simply forgot to remove the
same from display. He even told Ivan that it was the last piece he has. Therefore, it can be said
that it is the case of offer and acceptance. On the basis of given scenario, it can be concluded that
offer was there from Ivan’s side but it was not accepted by Todor. Thus, for a valid contract,
availability of both these elements is very important. Offer: - On the basis of the above case, offer was there from Ivan’s side to purchase the
book that was liked by him. Acceptance: - In this case, there was no acceptance from Todor’s side and thus, a valid
contract can be formed. Express term: - In the following case, condition of an express term does not apply because
both the parties are not mutually concerned about the same thing.
 Written Contract: - No written contract was formed between Ivan and Todor.
 Condition: - According to the above case, no condition arises.
2.2 Law of terms in different contract in the given business scenario
Condition: - Situation of condition can occur in both implied and express terms.
Availability of condition depends on the situations. These conditions are known as a root of the
contract (Lando, 2006). Furthermore, it can be said that if condition is breached than in that case
the opposite party has the right to break the contract without information and innocent party can
also claim for a sum of compensation for a damage caused to him.
Warranty: - Warranties can also occur in a form of implied and express terms in a
contract. It is a situation in which one entity promises the other to perform the peculiar task
assigned to him. Thus, in case of warranty if any party breach the contract than in that case the
another party is fully liable to claim for a sum a compensation for the damages. But he is not at
all liable to cancel the contract.
In nominate terms: - these are not the terms that can be considered as a warranty nor it
can be considered as condition. Availability of these terms highly depends on the condition. In
nominate terms are also known as intermediate terms (Marks, Marks and Jackson, 2013).

2.3 Effects of different terms of contract on the given case scenario
As per the given case scenario John went to a park where he saw a chair for hire at 50p.
He went to the council for the chair where he got it after paying 50p. But after sometime the
chair collapsed and John was badly injured and his clothes were damage. In regard to this he
claims a sum of compensation from the Council. But the council refuses to pay him, because on
the back side of the ticket a clause was mentioned which states that “No liability is accepted for
the damages or injury caused by any of the hired equipment. Thus, it can be said that it is case of
Express term. Therefore, in regard to which it can be said that John is not at all liable to claim for
a compensation for a damage caused to him. Express term: - On the basis of the above scenario it can be said that the condition of
express term arise. Express terms are the term in which both the entities agree upon the
same thing by mutual understanding. Exclusion clause: - It is the clause which is included in the document provided. If this
clause is mentioned in that an injured party is not at all liable to claim for a sum of
compensation for the damage or injury caused to him. Thus, according to the above case
exclusion clause was already mentioned at the back side of the ticket provided to John.
 Bilateral contract: - On the basis of the given scenario, bilateral contract was formed
between John and Council for hiring a chair.
 Condition: - No situation of condition occurs in the above case.
TASK 2
3.1 comparison between liability in tort and contractual liability
Basis Liabilities in tort Contractual liability
Objective Under this type of liabilities a
defendant party aims at giving
compensation to the injured
person by placing him at the
place of negligence (Murdoch
and Hughes, 2002).
Under this types of liability
suspected party intent to the
pay the compensation by
placing the individual at the
place where contract has
actually been performed.
Damages In this case damages occur
can be reduced by paying a
In this case damages can be
reduced by paying the full

limited amount of percentage
to the claimant party.
amount of claim by the
claimant party.
Relationship between the
parties
No relationship is created
between the parties with
correlative promise. The
relationship is formed by law.
Relationship is formed by
mutual understanding between
both the parties (Scott, 2006).
The relationship created is
managed according to the
norms of the contract.
Case study Chester v Afshar [2005].
According to the case claimant
files a case against the
defendant for developing the
syndrome. The defendant has
already told in advance to the
claimant for developing the
syndrome after the operation
which was ignored by the
patient. Thus, according to the
law it was the mistake of
injured party herself that she
does not consult to any other
doctor before operation.
Therefore, in regard to which
injured party cannot claim for
compensation.
Mansfield v Weetabix [1997]
CA. As per this case driver of
Mr. D suffers from a lack of
glucose in the brain. But the
driver was completely unaware
about the disease. In respect to
which he hits the shop of Mr.
C when he left the lorry at
turn. Thus, according to the
concept of contractual
liabilities driver of Mr. D is
not at all liable to pay a sum of
compensation to Mr. C.
3.2 Nature of liabilities in negligence
Liability in negligence can be said as a failure by an individual to perform this basic duty
of care, which in turn results in the damage and injury of an individual. It can also be said as a
deficiency of tort that is creating between both the individuals. For instance: - Doctor fails to

inform a patient about the problems that can occur to him after operation. The condition of
liabilities in negligence can occur in the following cases:-
Breach of duty of care: - If an individual fails to perform the duty of care imposed to him
than in that it will be treated as breach of duty of care. In lieu of which there is need for
regulating the suitable conduct by following a general human affairs. The concept of breach of
duty is explained in the case of Blyth v Birmingham water works 1856.
Economic losses: - Any loss that occurs to an individual due to his negligence than in that
case the condition of negligence arises (Yadav, 2015). Suppose if a management of a pool
display a notice near a pool that entry tonight is prohibited and then also an individual went there
and got injury than in that case it is liabilities in negligence from individual side.
3.3 How business can be vicariously liable
Vicariously liabilities are the obligation in which an individual is liable to pay a sum of
compensation to an injured person irrespective of the fact whether he has done a mistake or not.
It can be said as legal doctrine which assigns a duty of care for an injured person who actually
does not cause any injury but has a direct relationship with the person (Yiping, 2012). Suppose-
an injury has been caused to a person because of a mistake made by an employee, but the sum of
compensation to an injured person will be paid by the employer because he has a direct relation
with the employee. In simple words it can be said that is the condition in which someone is
responsible for the omission of other person.
As per Occupier's liability act 1951 every defendant party is liable to pay for the injury
caused to the claimant irrespective of the fact whether it was the defendant party mistake or it
was injured person mistake. For example: - if a tourist visit to the hotel and he went to the place
which is prohibited by the hotel staff and got injury. Then as per the occupier's liabilities act
1951 owner of the hotel is only liable to pay to him irrespective of the fact that it was the injured
person mistake only.
Therefore, in order to overcome the drawbacks of Occupier's liabilities act, 1951;
Occupier's liabilities act 1984 was formed. As per this act a defendant party is only liable to pay
a sum of compensation if any illegal act has been performed by them. If they are able to justify
themselves than in that case they are not required to pay any sum of compensation. Even a hotel
staff can ask for a compensation from the visitor for the damage caused to the property of the
hotel.

4.1 Elements of tort of negligence and defences in different business situations
As per the given case scenario David was driving in 25 MPH area at the speed of 35
MPH. Due to which he was hit by the telephone pole in order to save a child Kevin running on
a street. David was badly injured and he even got some permanent injury. The telephones pole
was owned by the TeleCo.
Some of the elements of tort of negligence and defences are as follows:- Volenti-non fit injuria: - According to the following term every injured party is liable to
claim a sum of compensation for a damages caused to him whether accidentally or with
complete intention (Uddin, 2015). Therefore, in regard to which every injured party is
obliged to sue the defendant party. Necessity: - As per this element no defendant party is oblige to pay a sum of
compensation for the damage that has occurred due to the mistake of the injured party
only. In simple words it can be said that injured party is not liable to claim or sue the
defendant party if any damage occurs to this own immoral act. Justification: - On the basis of the Occupier liability act, no suspected party is liable to
pay the compensation to the injured party if they are able to justify themselves in respect
to the assertion imposed.
 Illegal: - On the basis of this element every claimant party has the right to claim a sum of
compensation for a damage caused to him by any illegal act performed by defendant
party.
Thus, after applying the element of tort in negligence and defences it can be interpreted
that David is not at all liable to pay a sum of compensation from the owner of telephone pole.
Because it was the mistake of David himself that he was driving at 35 MPH speed in the area of
25 MPH. Even he liable to pay compensation to Kevin if any injury was caused to him.
4.2 Elements of vicarious liability in given situation
Elements of vicarious liabilities say that ever individual is responsible for the damage
caused and who has a direct relation with the defendant party. The elements of vicariously
liability occur when employer and employee flows under the following conditions. One is when
an employee is working in the organization on a full time or party time basis. And is when
employee is in the course of employment (Phillips and Cooper, 2003).

Thus, on the basis of the above case Colin the head chef of Regent hotel got fed up with
Roger, a dishwasher. In regard to which Colin badly hit the Roger with the frying pan. Due to
which Roger was badly injured but he refuses to go to the doctor. In lieu of which Roger files a
case against Colin. Therefore, by considering the element of vicarious liabilities Ben who is the
owner of the hotel and the Colin both of them are liable to pay a sum of compensation to Roger.
Because it was the duty of Ben to take care that no senior employee causes any physical injury to
the junior employee. Therefore, at last it can be said that Roger is completely liable to claim in
vicariously liability against the Owner of Regent hotel for the damages caused to him in regard
to the Colin's actions. And at the same time it can be concluded that Roger has a right to sue
Colin directly for the injury caused to him.
CONCLUSION
On the basis of the above study it can be concluded that for the formation of valid
contract availability of offer and acceptance is very important. In addition to this in the report
different types of contract are concluded. In this report various case study are discussed in order
to solve the problems by considering the elements of essential contract. Along with these
elements of vicariously liabilities, liability in tort and contractual liabilities are also discussed.
Thus, on the basis of Occupier’s liabilities act it can be said that it is not always that defendant
mistake, many a times it can be the mistake of injured party himself.

REFERENCES
Books and journal
Beever, A., 2007. Rediscovering the law of negligence. Bloomsbury Publishing.
Caruso, D., 2007. Contract law and distribution in the age of welfare reform. Ariz. L. Rev. 49. pp.
665.
Ciccarelli, J.K. and Ciccarelli, J.C., 2005. The legal aspects of parental rights in assisted
reproductive technology. Journal of social issues. 61(1). pp. 127-137.
Cimino, C., (2010. Virtue and Contract Law. Oregon Law Review.
Koffman, L. and Macdonald, E., 2010. The law of contract. Oxford University Press.
Lando, O., 2006. Liberal, social and" ethical" justice in European contract law. Common Market
Law Review. 43(3). pp. 817-833.
Lipshaw, J. M., 2011. Contract as Meaning: An Introduction to Contract as Promise at 30.
Suffolk UL Rev. 45. pp. 601
Marks, R. J., Marks, R. J. and Jackson, R. E., 2013. Aspects of civil engineering contract
procedure. Elsevier.
Murdoch, J. and Hughes, W., 2002. Construction contracts: law and management. Routledge.
Scott, R.W., 2006. Legal aspects of documenting patient care for rehabilitation professionals.
Jones & Bartlett Learning.
Yadav, A., 2015. Changing concept contract recent problems and issues.
Yiping, W. U., 2012. On the elements of liability for negligence in contracting. Journal of
Central South University (Social Science). 43(3). pp. 817-833.
Online
Phillips, E. and Cooper,R., 2003. Employer Liability for the wrongful Acts of its employees.
Available through: <http://www.mccarthy.ca/pubs/Wrongful_Acts.pdf> [Accessed on
22nd February, 2016].
Uddin, M., 2015. Aspect of Contract and Negligence for Business[Online]. Available
through:<http://www.lawteacher.net/free-law-essays/contract-law/aspect-of-contract-and-
negligence-for-business-contract-law-essay.php> [Accessed on 22nd February, 2016].