Buy custom Aspects of Contract and Negligence essay

TASK NUMBER: 1

James cannot force the organization, XP, to sell a computer to him for £ 2.00 since the organization did not indulge in a legally binding contract with James (Keenan & Riches 2007, pp. 100 - 275). For a contract to be legally binding, it must fulfil the following conditions:

Offer

For a contract to be enforced by law it must consist of an offer, which is definite and very strong in nature. Examples of legally binding offers include an offer provided by a sub-contractor to a supplier or an offer of lease, which is provided to the concerned parties. However, the concerned parties must keep under consideration that a legally binding offer does not include letters of intent, expressions of interest, boll park estimates, and requests for proposals of the organizations (Keenan & Riches 2007, pp. 100 - 275)

It has been mentioned by a number of studies that there is a great probability that the offer would become invalid if:

The expiry of the term of the offer occurs before the acceptance of the offer by the other party to contract. (Faculty Of Goldsmith International Business School 2010, pp. 1 - 6)

If the offering party withdraws the offer before it is being accepted by the other party to the contract. (Faculty Of Goldsmith International Business School, 2010 pp. 1 - 6)

Acceptance

The offer is to be accepted by the other party to the contract in the same manner as it is made. The acceptor cannot make any changes in the original offer. If any change is being made in the original offer then it is referred to as a counter offer. A number of counter offers can be made by all the parties to the contract before the final agreement is reached (Faculty Of Goldsmith International Business School 2010, pp. 1 - 6).

It is not important that who makes the final offer. Instead, the acceptance of the final offer is an important and essential element of a legal contract. The acceptance puts an end to all the negotiations and leads toward the establishment of the terms and conditions of the contract under consideration (Faculty Of Goldsmith International Business School 2010, pp. 1 - 6).

The acceptance is provided by the concerned part either in a written manner or in a verbal manner. The acceptor may accept the offer through his actions, which might include compliance with the terms and conditions of the contract. Apart from that, some contracts require that the acceptance must be made in a specific manner and if the rules and regulations are not followed appropriately then the offer is rendered ineffective (Faculty Of Goldsmith International Business School 2010, pp. 1 - 6).

Consideration

For a contract to be legally binding and enforceable, it is necessary that the contract is supported by valuable considerations. In other words, consideration can be defined as the assertion of one party to the contract that it would provide a service or product to the other part to the contract. This service or product is provided in return of a promise that the other party would provide it with a benefit of value, which can also be referred to as the consideration. (Faculty Of Goldsmith International Business School, 2010, pp. 1 - 6)

Consideration is a price, which all the concerned parties pay to each other as a price of the promise that they make. In most of the cases, the consideration is a monetary value but in some cases, the consideration can be intangible in nature. This might include the provision of exclusive rights or the promise to refrain from exercising a specific right for the sake of the other party. (Faculty Of Goldsmith International Business School, 2010, pp. 1 - 6)

Intention

For a contract to be legally binding, it is very necessary that the parties to the contract must have a strong intention to indulge in a legally binding contract. In other words, all the parties to the contract must be willing to indulge in a legal relationship with each other. Furthermore, all the parties to the contract must know that the contract is a legal promise, which is enforceable by law. (Faculty Of Goldsmith International Business School, 2010, pp. 1 - 6)

 

In case of a contract, it is assumed that all the parties to the contract intend to develop a legal relationship with each other. In addition to that, it is also mentioned in writing in the terms of contract that the parties intend the contract to be legally enforceable and are aware of the legal consequences that might follow the breach of contract. If, on the other hand, the parties to the contract do not intend to develop a legal relationship with each other then, the contract does not remain a legal promise and is not enforceable by law (Faculty Of Goldsmith International Business School 2010, pp. 1 - 6).

In the above-mentioned case, XP computers did not intend to have legal relation with the other parties neither was a strong consideration included in the above case. James therefore, cannot force the organization to sell him a computer system for £ 2.00 since the above-mentioned case did not consist of a legally binding contract and hence the intervention of the law enforcement agencies is highly unlikely in this case (Faculty Of Goldsmith International Business School 2010, pp. 1 - 6).

TASK NUMBER: 2

When a contract is being made, it generally consists of expressed an implied terms. Both of these terms are to be fulfilled by the parties to the contract, or else they may be required to confront legal consequences (Faculty Members of the Norwegian Research Center for Computers & Law, University of Oslo 2012, pp. 3 - 19).

Implied Terms

In this case, implied terms can be defined as the terms that are included in the contract by law on the basis of the nature of the contract or the intention of the parties to the contract to make it enforceable by law (Faculty Members of the Norwegian Research Center for Computers & Law, University of Oslo 2012, pp. 3 - 19).

Expressed Terms

Expressed terms, on the other hand, are the terms that are included in the contract by the parties to the contract. They may be oral or written in nature. In case of oral expressed terms, the parties to the contract orally identify ad finalize the terms that would be incorporated in the contract. These terms, in order to be applicable, shall be very strong and very evident in nature (Faculty Members of the Norwegian Research Center for Computers & Law, University of Oslo 2012, pp. 3 - 19).

In case of written terms, they must be accepted by all the parties to the contract and shall be included in the contract in a written from. These terms generally supersede the oral expressed terms that have been identified previously. In some cases, however, the expressed terms can be partially oral and partially written (Faculty Members of the Norwegian Research Center for Computers & Law, University of Oslo 2012, pp. 3 - 19).

The expressed terms shall be generated on the basis of the specific knowledge and skills of the employees. Furthermore, it the contract is compiled in a written form then any statement that is included in the contract is regarded as a term and the parties to the contract are legally obliged to abide by this term (Faculty Members of the Norwegian Research Center for Computers & Law, University of Oslo 2012, pp. 3 - 19).

Generally, the parties to the contract are required to sign the contract as the representation of the fact that they agree to all the terms and conditions of the contract and have an intention to get indulge in a legally binding relationship with the other party. The presence of a signature makes it difficult for the other party to indicate that the contract does not represent the terms and conditions to which the party has agreed previously (Faculty Members of the Norwegian Research Center for Computers & Law, University of Oslo 2012, pp. 3 - 19).

Exclusion Clauses

Apart from that, the contracts consist of exclusion clauses, as well. An exclusion clause can be defined as the clauses that indicate that a particular party to the contract would not be responsible for certain situations. The exclusion clauses cannot be included in the contract after it has been signed by the other party. Instead, these clauses shall be entered into the contract before the acceptance process. In other words, exclusion clauses are the part of the initial offer (Faculty Members of the Norwegian Research Center for Computers & Law, University of Oslo 2012, pp. 3 - 19).

Even though, the Sales of Goods act has rendered the businesses liable for replacing the product if does not satisfy the consumer but this replacement is to be made before the legal acceptance of the product by the consumer. In the above-mentioned case, Peter legally accepted the iPad by signing the 24-month contract that was presented to him (Faculty Members of the Norwegian Research Center for Computers & Law, University of Oslo 2012, pp. 3 - 19).

Apart from that, as mentioned above, all the parties to the contract are liable to fulfil all the terms and conditions of the contract, including the exclusion clause. In this case, XP World clearly indicated, in written form, in the contract that it would not be responsible for the repair expenses, and Pete signed the contract (Faculty Members of the Norwegian Research Center for Computers & Law, University of Oslo 2012, pp. 3 - 19).

It is, therefore, not possible for Peter to prove that he did not agree to this condition as his signature would act as a token of agreement and assertion. The XP world, therefore, cannot be forced to replace the iPad. In addition to that, Peter is also liable to comply with the month contract (Faculty Members of the Norwegian Research Center for Computers & Law, University of Oslo 2012, pp. 3 - 19).

TASK NUMBER: 3

It has been identified by the law that a person or a party owes another person or a party a duty of care if because of its actions the other party has suffered a harm or loss. The duty of care is a very complex issue but it demands that the individuals must act with an acceptable standard of care. If the responsible party does not follow the appropriate standard of care and others suffer any damage or harm then the responsible party is deemed to be negligent in its actions (Faculty Members of the Villamanta Disability Rights Legal Service Incorporation 2007, pp. 1 - 6).

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Negligence, here, can be defined as a condition in which an individual, who owes the party under consideration, fails to act according to the standard of care and this, as a result, causes the other party an injury. Duty of care is applicable in situations where the affected party relies heavily on the negligent individuals (Faculty Members of the Villamanta Disability Rights Legal Service Incorporation 2007, pp. 1 - 6).

For instance, it is applicable to doctor patient relationships, in which the doctor owes the duty of care and driver, pedestrian, and passenger relationships, in which the driver owes a duty of care (Faculty Members of the Villamanta Disability Rights Legal Service Incorporation 2007, pp. 1 - 6).

Standard of care, here, can be defined as manner in which the responsible party is required to behave so that a breach might not occur in the duty of care. In such a case, the responsible individual is required to act in a manner in which a reasonable person with the same skills would have acted in the situation under consideration (Faculty Members of the Villamanta Disability Rights Legal Service Incorporation 2007, pp. 1 - 6). The behaviour of a reasonable person is generally identified by the court on the basis of the following factors:

The intensity or the severity of the threat or harm that might be caused to the parties involved in the situation (Faculty Members of the Villamanta Disability Rights Legal Service Incorporation 2007, pp. 1 - 6).

The probability or the degree of risk that the parties, which are included in the situation, would be harmed if the responsible individual does not act appropriately (Faculty Members of the Villamanta Disability Rights Legal Service Incorporation 2007, pp. 1 - 6).

The burden or the difficulty that the concerned authorities and affected parties might confront while removing the harm or damage that has been caused (Faculty Members of the Villamanta Disability Rights Legal Service Incorporation 2007, pp. 1 - 6).

In addition, the degree to which the activity under consideration is useful for the individuals and the number of individuals that use the activity under consideration (Faculty Members of the Villamanta Disability Rights Legal Service Incorporation 2007, pp. 1 - 6).

In order to establish the fact that the driver owed Alina a duty of care she must perform the following actions:

Firstly, Alina shall prove that the driver owed her a duty of care, which is very evident as a negligence on behalf of the driver caused Alina to confront a severe injury, a broken arm (Faculty Members of the Villamanta Disability Rights Legal Service Incorporation 2007, pp. 1 - 6).

Secondly, she should prove that the driver did something, which a reasonable person under the same situation would not have done. This, again, is very clear as the driver fell asleep, while driving the train and this cannot be defined as the behaviour of a reasonable person (Faculty Members of the Villamanta Disability Rights Legal Service Incorporation 2007, pp. 1 - 6).

Finally, she would be required to prove that she suffered an evident damage or loss because of the irresponsible behaviour of the driver. This is also very evident as the train crashed because of the mistake of the driver. In addition to that, as a result of the train crash Alina had a broken arm (Faculty Members of the Villamanta Disability Rights Legal Service Incorporation 2007, pp. 1 - 6).

The chances for success for Alina in the given case are very high as Alina would be able to prove that the driver owed her a duty of care and it was due to the negligence of the driver that she has to suffer a loss or injury. All of these facts can be established in the light of law and hence Alina can claim the duty of care from the driver. (Faculty Members of the Villamanta Disability Rights Legal Service Incorporation, 2007, pp. 1 - 6)

TASK NUMBER: 4

The Occupier’s Act 1975 lists down the following facts:

The occupiers of a premise owes a duty of care to all the lawful visitors of the premise. In other words, the occupier is held responsible to ensure the lawful visitors fulfil their purpose of entering the premise in a safe and secure manner (Staff Members of the Chartered Institute of Loss Adjusters, Government of United Kingdom 2011, pp. 3 - 23).

An occupier does not necessarily be the owner or lessee of the premise; instead, it is the party that has the control over the premise (Staff Members of the Chartered Institute of Loss Adjusters, Government of United Kingdom 2011, pp. 3 - 23).

The lawful visitors can be divided into the following three categories:

The person who has an expressed permission to enter the premise. This might include all the visitors that have been invited by the occupier (Staff Members of the Chartered Institute of Loss Adjusters, Government of United Kingdom 2011, pp. 3 - 23).

The person who has an implied permission to enter the premise. An example of this could be a consumer who enters the shop (Staff Members of the Chartered Institute of Loss Adjusters, Government of United Kingdom 2011, pp. 3 - 23).

The person who has the right to enter the premise. An example of this could be a police officer who has the right to enter a premise at any time (Staff Members of the Chartered Institute of Loss Adjusters, Government of United Kingdom 2011, pp. 3 - 23).

The premise, here, can be defined as a land or building or any other fixed or moveable structure that is under the control of the occupier in the situation under consideration. The examples of premise may include shops, public buildings, office buildings, houses and aircrafts etcetera (Staff Members of the Chartered Institute of Loss Adjusters, Government of United Kingdom 2011, pp. 3 - 23).

In the case under consideration, Sue can hold Delux hotel liable for the damage that was caused to her because:

Sue was a lawful visitor as she had been invited by the management of Delux hotel for an interview and it was the responsibility of the hotel management to ensure her safety (Staff Members of the Chartered Institute of Loss Adjusters, Government of United Kingdom 2011, pp. 3 - 23).

Sue fell off because of the slippery floor of the hotel and the management did not warn the visitors about the potential harm that might be caused by the slippery floor, which according to the law is the responsibility of the occupier (Staff Members of the Chartered Institute of Loss Adjusters, Government of United Kingdom 2011, pp. 3 - 23).

The hotel, however, can use the contributory negligence defence. This defence indicates that the harm has been caused by the negligence on the part of the visitor rather than the occupier. This defence is applicable in the case under consideration because Sue took her virus medication without any food and this might have caused her to feel dizzy. Sue, therefore, might have fallen because of the dizziness rather than the slippery floor if the hotel. This fact might weaken the claim of Sue and prove out to be a defence for the hotel (Staff Members of the Chartered Institute of Loss Adjusters, Government of United Kingdom, 2011, pp. 3 - 23)

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