Contract – Tort Example

Question: 1 What legal rights does Lisa have against Harold with regard to the 100 dresses? Answer: I am asked to advise Lisa in relation to the breach of contract by Harold. I will focus in my discussion bellow that whether the agreement is constituted or not by the offer from Harold and its acceptance by Lisa. Therefore I am assuming that there was an agreement between them and what remedy could be claimed by Lisa if Harold breach of it. First I need to check is there any valid contract between Lisa and Harold or not? For this I need to consider the elements of a valid contract which are as bellows; •Agreement.

•Consideration •Intention •Form •Capacity •Legality I need to check briefly the above mentioned elements. To create an agreement first element I have to prove that is the offer by Harold is a valid offer or not in terms of contract law. An offer can be defined as words or conduct which demonstrates an intention by the maker to be bound by the terms stated or inferred upon unqualified acceptance by the person to whom it is addressed [Storer v Manchester City Council (1974)].

And this offer must be communicated to Lisa. In the fact the name Harold is a offeror who offered Lisa to sell 100 women`s dresses for the business purpose and the fact is concern that there was no termination of offer by Harold [Payne v Cave (1789)], this termination could be terminated for lapse of time because the offer was open until 10 May. Now I need to establish it is acceptance by Lisa. An acceptance can be defined as words or conduct which unequivocally demonstrates willingness by the offeree to be bound by the terms of the offer without qualification or further negotiation [Storer v Manchester City Council (1974)]. To be an acceptance there must be an actual communication to Harold from Lisa [Powell v Lee (1908)].

As far as the question`s fact is concern that Lisa sent her acceptance by post [Household fire Insurance v Grant (1879)] where an acceptance is concluded when oferee posted the letter. The problem happened that the postal order did not arrive to Harold. In this situation Harold could claim because of no arrival the acceptance before the date stated at the time of offer what is not accepted by the postal rule. ASSIGNMENT ON COMMON LAW PAGE | 4 This offer could be accepted if the offeror waved the requirement of the communication [Carlil v Carblic smokeball(1893)]. but there is no express or implied indication that Harold

did it. On the other hand Harold may prescribe any mode that he desires [Holwell Securities v Hughes (1974)] what is absent here also. But Harold could argue that Lisa had have to chose an equally expeditions means to accept this offer as Harold did not express any desire for specific communication for acceptance; though the rule of postal is still applicable to accept an offer. So, under the postal rule Lisa could claim that she did accept the offer before the time is lapsed. Harold offers to sell 100 women`s dresses to Lisa for ? 35,000. So there is a consideration.

Both the parties are capable and the contract has legality. So there is a valid contract between Lisa and Harold. Assuming that the offer may be accepted by postal rule and the contract is concluded and for breach of this contract Lisa may demand for remedy. The breach of contract can be claimed in two ways (1) Common law (2) and equity. If Lisa applies under common law there is damages is the only way to apply; then one possibility to win the remedy in expectation loss that the loss has been created for the failure of getting the product what could be sold more than 30,000 pounds. Another way is reliance

loss [Anglia Television v Reed (1971)] where she cannot ensure that how much loss is occurred for breach of the contract. In equity Lisa could claim the (1) an order of specific performance (2) and injunction. An order of specific performance is made when [Beswick v Beswick (1967)], this is the discretion of the court where Lisa seeks performance of the contract rather than damages to rectify this breach of contract. And injunction can be sought that the court could stop the selling of 100 dresses to other buyer by an injunction. Conclusion In the conclusion of this question it can be said that the legal action could be taken place by

Lisa damages or equitable remedies as court thinks better if the contract is concluded by postal rule. ASSIGNMENT ON COMMON LAW PAGE | 5 Question: 2 Is it necessary for an agreement to be in written to be enforceable between its parties? Answer: In General the Law does not require complex formalities to be observed to form a contract. But some contract has to be written for proving, such as; Contracts which must be in the form of a Deed There are certain transactions involving land like legal mortgages and leases for more than three years require a deed. A promise of a gift is not binding unless in this form.

Contracts which must be in written The sale of a land can be only made in written and it has to have all agreed agreement between parties in one document and signed under the law of property Act 1989 [Pit V PHH Asset Management Ltd(1993)]. Contract which must be evidenced in written A contract of guarantee has to be written under the Statute of Frauds 1677. If I borrow money from somewhere or buy goods I need a guarantor who will guarantee the debt and will be responsible for the debt if I do not pay it. If a money or property has changed hands, it can be kept.

[Actionstrength Ltd v International Glass Engineering & Saint-Gobbin Glass UK Ltd (2003)]. It is useful to ask three questions to determine whether problems of enforcement exist under the statute. 1 1 Brian (2007) 1. Does the contract fall within the statute? 1. Does the contract fall within the statute? Yes Yes 2. Is the contract reflected in writting that satisfies the statute? 2. Is the contract reflected in writting that satisfies the statute? Yes – Contract is enforceable Yes – Contract is enforceable No No 3. Does the case fall within one of the exceptions that permit enforcement despite non-compliance 3.

Does the case fall within one of the exceptions that permit enforcement despite non-compliance Yes – Contract is enforceable Yes – Contract is enforceable No – Contract is unenforceable No – Contract is unenforceable No – Oral contract is unenforceable No – Oral contract is unenforceable ASSIGNMENT ON COMMON LAW PAGE | 6 ASSIGNMENT ON COMMON LAW PAGE | 7 Question: 3 Describe the nature of general tortuous liability comparing and contrasting it to contractual liability. Answer: Tortuous liability: Tortuous liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages (W. V. H. Rogers2002).

Liability arises out of a wrongful act or omission: There are situations where one person is liable for another’s wrongful act or omission – Vicarious Liability. Generally, tortuous liability is based on “fault” of the defendant: “Fault” means that the claimant must prove that the defendant committed the act (or omitted to act) intentionally or negligently. Generally, the claimant must prove that s/he has suffered damage which is not too remote a consequence of the defendant’s wrongful act or omission. The aim of the law of torts is twofold: 1.

To compensate someone who has suffered a wrong at the hands of the defendant and 2. To deter persons from acting in such a way that another person’s rights are infringed. Contractual liability: A contract is a voluntary, deliberate and legally enforceable agreement between two or more parties. Contractual liability is the liability assumed by parties under a contract. Three common myths on contractual liability; 1. Contractual liability provisions will respond whether the indemnification is legally enforceable or not.

2. The contractual liability provision will respond to all of the liability set forth in the indemnification requirement. 3. Contractual liability coverage always includes all defence costs for the indemnified party, in addition to the limits of liability. ASSIGNMENT ON COMMON LAW PAGE | 8 Comparing and contrasting tortuous and contractual liability Contractual liability Tortuous liability Create civil law obligations Create civil law obligations Breach gives rise to an action for damages. Breach gives rise to an action for damages. Civil courts have jurisdiction to hear contract claims. Civil courts have jurisdiction to hear tort claims. Contractual obligations are voluntarily undertaken.

In law of Tort there is no free choice – law imposes the obligation. Contractual obligation owes a duty to the other party to the contract. In tort owe duty to everyone not to use violence against them, not to trespass on property belonging to others, not to defame them. Generally, liability in contract is strict. Tortuous liability is based on fault. Liability is imposed on a person who has not done what promised to do. In tort imposed on someone who has done something should not have done or has failed to do something should have done.

Damages: the object of awarding damages in contract is to put claimant in position would have been in had contract been performed. Intort,itistoputtheclaimantinthe position he would have been in had the tort not happened. ASSIGNMENT ON COMMON LAW PAGE | 9 Question: 4 Define the tort of Negligence and explain what must be established to place a claim for negligence. Answer: Tort of negligence (Denis keenan & Sarah Riches 2007) If somebody owes a duty of care to somebody and he/she breaches the duty of care causes injury for the breach is called negligence. The foundations of the modern law of negligence best describes in a well known English law which is known as Donoghue v Stevenson [1932].

Example: As a student of Icon College they have some duty of care to me. If I fell down because of the slippery floor in the class room and got serious injury. Then I can sue Icon College on the basis of tort of negligence. In order to establish negligence a claimant must prove the following things; 1. The defendant owed him a legal duty of care 2. The defendant was in breach of this duty of care 3. The claimant suffered injury or loss as a result of the breach 4. The injury or damage suffered was not too remote a consequence of the breach of duty. Duty of care The first question is whether there has been a duty of care.

Has the defendant actually been negligent? Duty of care simply means that one must take reasonable steps to ensure their actions do not knowingly cause harm to another individual. In this occasion law looks the following things; •The nature of the relationship between the parties; •Whether the incident resulting in harm was reasonably foreseeable, and •The proximity or causal connection between one person’s conduct and the other person’s injury. Example: John Munroe (Acrylics) Ltd v London Fire Brigade & Civil Defence Authority [1997].

Caparo Industries Plc v Dickman [1990]. Injury not too remote Injury not too remote Casually connected Casually connected Breach caused injury Breach caused injury In breach of that duty of care In breach of that duty of care Owes a duty of care Owes a duty of care ASSIGNMENT ON COMMON LAW PAGE | 10 Breach of duty The next question is whether there has been a breach of the duty of care. Has the defendant actually been negligent? As a practical matter, this is very important. It will often be a major issue between the claimant’s advisers and the defendant’s advisers or insurers in attempting to reach a settlement. If there is a trial, the court will consider a range of factors including;

•The likelihood that damage or injury will be incurred •The seriousness of a damage or injury •The cost and ease of taking precautions •The social need for the activity. Example: Cassidy v Ministry of Health [1951]. Damage The third question is whether there has been an injury caused by the breach of duty. The claimant must show he has suffered some damages and it is not too remote a consequence of it. The damage could be death, Personal injury, and nervous shock, damage to property and in limited circumstances financial loss. So the whole process should be in the following structure;

ASSIGNMENT ON COMMON LAW PAGE | 11 References Books 1. Brian A. B (2007), Contracts: examples & explanations, 4th edition, ISBN 0735562415, 9780735562417, Aspen Publishers. 2. Denis k. & Sarah R (2007), Business Law 8th edition, ISBN: 978-1-4058-4697-4, Pearson Education Ltd. 3. Rogers W. V. H. Winfield & Jolowicz on Tort (2002)16th edition, Sweet and Maxwell. Table of Cases 1. Actionstrength Ltd v International Glass Engineering & Saint-Gobbin Glass UK Ltd (2003) 2 All ER 615 236 2. Anglia Television v Reed [1971] 3 All ER 690 263 3. Caparo Industries Plc v Dickman (1990) 1 All ER 568 346, 355 4.

Carlil v Carblic smokeball[1893] 1 QB 256 xix 216, 217, 220, 222, 234, 334, 423 5. Cassidy v Ministry of Health (1951) 1 All ER 574 346 6. Beswick v Beswick[1967] 2 All ER 1197 231 7. Donoghue v Stevenson (1932) AC 562 345, 347-9, 353 8. Howell Securities v Hughes [1974] 1 All ER 161 224 9. Household fire Insurance v Grant [1879] 4 Ex D 216 223 10. Munroe (Acrylics) Ltd v London Fire Brigade & Civil Defence Authority (1997) 2 All ER 865 346 11. Payne v Cave (1789) 3 Term Rep 148 217 12. Pit V PHH Asset Management Ltd(1993) 1 WLR 327 222, 236 13. Storer v Manchester City Council [1974] 3 All ER 824, [1974] 1 WLR 1403, 73 LGR 1, 118 Sol Jo 599.