Contract – Tort Essay

A contract may be defined as an agreement which legally binds the parties. A party to a contract is bound because he has agreed to be bound. The underlying theory then is that a contract is the outcome of ‘consenting minds’. Parties are not judged by what is in their minds what they have said, written or done. Contracts are sometimes referred to as enforceable agreements. This too is somewhat misleading.

True to the concept of both the common law principles and English law principles, parties to a contract must a mutual relationship and therefore English law will not usually allow one party to force the other to fulfill his part of the bargain. He will usually be restricted to the remedy of damages. What are the different types of business Agreement? Different types of business agreements Are there any other agreements and different types of contracts apart from? Unilateral – 1 person has obligation to perform a certain act which does not have to be reciprocated by the other party performing an obligatory act.

Bilateral – both parties have duties to perform a specific act in response to each other. Specialty – formal contracts done by deed. These kinds of contracts come in transactions involving real estates and other assets. Simple – this form of contracts does not require any writing and or specialty features. Standard – business forms, invoices bills are good examples. This is an extreme form of unilateral contracts. Loan processing is one very good example. A business (also known as enterprise or firm) is an organization engaged in the trade of goods, services, or both to consumers.

Businesses are predominant in capitalist economies, in which most of them are privately owned and administered to earn profit to increase the wealth of their owners. Businesses may also be not-for-profit or state-owned. A business owned by multiple individuals may be referred to as a company, although that term also has a more precise meaning. The etymology of “business” relates to the state of being busy either as an individual or society as a whole, doing commercially viable and profitable work.

The term “business” has at least three usages, depending on the scope — the singular usage to mean a particular organization; the generalized usage to refer to a particular market sector, “the music business” and compound forms such as agribusiness; and the broadest meaning, which encompasses all activity by the community of suppliers of goods and services. However, the exact definition of business, like much else in the philosophy of business, is a matter of debate and complexity of meanings. | | Basic forms of ownership

Although sales agreements can be executed between merchants and consumers, the highest value sales agreements are usually executed between businesses. Although forms of business ownership vary by jurisdiction, there are several common forms: • Sole proprietorship: A sole proprietorship is a for-profit business owned by one person. The owner may operate on his or her own or may employ others. The owner of the business has unlimited liability for the debts incurred by the business. • Partnership: A partnership is a for-profit business owned by two or more people.

In most forms of partnerships, each partner has unlimited liability for the debts incurred by the business. The three typical classifications of partnerships are general partnerships, limited partnerships, and limited liability partnerships. • Corporation: A corporation is a limited liability business that has a separate legal personality from its members. Corporations can be either government-owned or privately-owned, and privately-owned corporations can organize either for-profit or not-for-profit. A for-profit corporation is owned by shareholders who elect a board of directors to direct the corporation and hire its managerial staff.

A for-profit corporation can be either privately held or publicly held. • Cooperative: Often referred to as a “co-op”, a cooperative is a limited liability business that can organize for-profit or not-for-profit. A cooperative differs from a for-profit corporation in that it has members, as opposed to shareholders, who share decision-making authority. Cooperatives are typically classified as either consumer cooperatives or worker cooperatives. Cooperatives are fundamental to the ideology of economic democracy. • A contract is a versatile legal tool that allows strangers to do business together by guaranteeing legal enforcement of its terms.

Although many types of business agreements exist, four of the most popular categories are sales agreements, employment agreements, independent contractor agreements and confidentiality agreements. Sales Agreements • State in the U. S. requires sales transactions with a value of at least $500 to be evidenced by a written contract in order to be enforceable. The contract need not be evidenced by single documents; however, the mere exchange of memos or emails can constitute a binding contract under the Uniform Commercial Code (a set of statutes governing the sale of goods that has been passed by every US state legislature).

Employment Agreements • In most industries written employment agreements are not required in order to form a valid employer-employee relationship, however, employment agreements are common in the white collar professions and in industries represented by labor unions. A good employment agreement will cover work rules, duration of employment, remuneration, grounds for termination and job duties. Individual employment agreements are often governed by master agreements drafted with the input of labor unions and applicable to every employee that is both an employee of the company and a member of the union.

Independent Contractor Agreements • An independent contractor agreement is a contract between two independent parties whereby one party performs services for the other (building construction contracts are often structured in this way). The party performing services may be a company rather than an individual, and remuneration is often based on a fixed price for a particular project rather than a set amount per hour of labor. Independent contractors differ from employees in that they enjoy greater autonomy in performing their duties, and take greater financial risks with the projects they perform.

An independent contractor agreement should address the parties’ relationship with great clarity, because significant legal consequences (such as taxation and negligence liability) can turn on whether a party is ruled to be an employee or an independent contractor. Confidentiality Agreements • Confidentiality agreements are quite common in industries such as the software and entertainment industries where the creation and protection of intellectual property such as copyrights and trade secrets are critical to commercial success.

These agreements are often ancillary to another contract between the parties, such as when a software developer is granted access to a client’s proprietary information in order to perform the contracted services. When two companies contract with each other, one company may require all employees of the other company to sign confidentiality agreements with it as a condition for signing the main contract between the two companies. Explain the importance of the essential elements in different forms of business agreements. Also highlight their vitiating factors

The importance of key elements required for the formation of a valid contract Law of Contract – Presentation Transcript The law of contract Contract: An agreement which legally binds the parties, you contract with someone – When you buy a house – When you buy from a shop – When you start working in a company. Different types of business agreement ? Employment contracts ? Buying and selling goods ? Renting or buying a property ? Franchise agreement ? Export or import of goods ? Use of software licensing agreement ? Sub-contracting agreement, etc ? Elements of a contract

? Agreement – The rules of offer and acceptance ? Consideration – The obligations assumed by each party must be supported by consideration by the other party ? Intention to create legal relations – Intention of their promises to be legally binding ? If one of the three elements of contract is absent, there is no contract Validity of a contract ? Form – Written or oral ? Genuine consent – No misled into a contract ? Capacity – E. g. limited by age ? Content – Must be complete and precise in its terms ? Legality – Illegal contracts are not enforceable legally ? Invalid contracts may be – Void

? A void contract is not a contract – Voidable ? A party may void (i. e. to terminate his contract) – Unenforceable ? It is valid contract ? But, if either party refuse to perform the contract, the other party cannot compel him to do so (P2) You are the Sales manager of car dealership firm. Muhammed sent a letter dated 6th June 2006, to you explaining the car model he preferred buying. On receipt of the letter, you dispatch a reply telling him the price and the conditions of offer. Muhammed receive your letter on the 1st of July 2006 when you started negotiating with Ibrahim.

Highlight the key concept in this scenario and also point out the liabilities of the parties involved (if any). Who is a Sales Manager? The sales manager job description is a common request at typically, sales managers direct a company’s sales program. They assign sales territories, set goals, and establish training programs for their sales representatives. Sales managers may also advise their sales representatives on ways to improve their sales performance achieve goals and obtain expected quotas. What is a Standard Form contract documents:

The standard document is called the Conditions of Contract for Consultancy Services (between the Commercial Client and Consultant for Professional Services), commonly called the “long form”. This is generally used for larger engagements and a new booklet is used for each engagement. For smaller engagements, single sheet “short form” documents are available. There are two types, commercial and domestic. Commercial is for use with contracts with commercial entities while domestic for contracts with private individuals such as homeowners. The difference in the two is that the Consumer Guarantees Act 1993 applies in the case of the Domestic form.

The short forms come in pads of 50 sheets. Shortly, read only limited use discs will be available. Complementing these is the booklet Guidelines for Consulting Engineering Services written for clients on the engagement of consultants. It explains some of the issues relating to the engaging a consulting engineer. It explains the rationale for the words used in the CCCS as well as covering issues such as fees and services. It is intended that a copy of this be given to clients. It is also useful for consultants, particularly those starting out in business. NAWEC uses Standard Form contract documents.

What are these documents and their futures? Identify exemption clauses from these documents and discuss their effects Describe the nature of general tortuous liability comparing and contrasting to contractual liability. What is a Tortuous Liability? Tortuous Liability Tort liability is a type of insurance coverage that provides remedies for persons sued for damages when they injure or kill someone else through their own negligence. Some states operate under a tort system hence mandate victims of hurt by other parties to bring legal action for wrongdoing despite the presence of auto liability coverage.

Such cases are presided over by a judge and jury who decide and determine whether or not the damage was intentional. What is a Contractual Liability? This is an Obligation assumed by parties under the terms of a contract either by express language, implication, or operation of law. Contractual liabilities include not only the obligation of a party to perform in accordance with the contract but also such other obligations as may be assumed as implied terms under the sale of goods act 1979. Comparing and Contrasting the Principles of Tortuous Liability to Contractual Liability

|Principles of Liability in Tort |Principles of Liability in Contract | |Tortuous liability revolves around duties fixed by law. |In contractual liability, duties are bargain able by the parties | |Compensation only for damages hence indemnification |Compensation includes damages and expected earnings | |More impose in nature |Greater freedom to opt out | |All victims to losses or damages can claim compensation from the |Only parties to a contract can actually sue for damages. | |defendant. | | Explain the liability applicable to an occupier of premises. Who is an occupier?

Neither Occupier’s Liability Act defines “occupier”. The definition must be sought in case law. The currently applicable test for the status of “occupier” is the degree of occupational control. The more control one has over certain premises, the more likely he is to be considered “occupier” for the purposes of the two Occupiers’ Liability Acts. More than one person at the same time can have the status of occupier. Occupiers’ liability is a field of tort law, codified in statute, which concerns the duty of care that those who occupy (through ownership or lease) real property owe to people who visit or trespass.

It deals with liability that may arise from accidents caused by the defective or dangerous condition of the premises. In English law, occupiers’ liability towards visitors is regulated in the Occupiers’ Liability Act 1957. In addition, occupiers’ liability to trespassers is provided under the Occupiers’ Liability Act 1984. Although the law largely codified the earlier common law, the difference between a “visitor” and a “trespasser”, and the definition of an “occupier” continue to rely on cases for their meaning. (P10) What is a Vicarious Liability

Vicarious liability is a form of strict, secondary liability that arises under the common law doctrine of agency – respondent superior – the responsibility of the superior for the acts of their subordinate, or, in a broader sense, the responsibility of any third party that had the “right, ability or duty to control” the activities of a violator. It can be distinguished from contributory liability, another form of secondary liability, which is rooted in the tort theory of enterprise liability. Explain vicarious liability using a scenario

If an employee of Comium insult a customer, Comium can still be liable for the actions of the employee. This can be true even if the company management is unaware of the incident or had no control over it. This type of liability is known as vicarious liability. Identify the difference between strict liability and general tortuous liability. • If an employee of the hotel injures a guest, the hotel can still be liable for the actions of the employee. This can be true even if the hotel management is unaware of the incident or had no control over it.

This type of liability is known as vicarious liability. Distinguishing Strict Liability from General Tortuous Liability |Strict Liability |Tortuous Liability | |Strict liability, sometimes called absolute liability, is the legal |Tort liability is a type of insurance coverage that provides remedies | |responsibility for damages, or injury, even if the person found |for persons sued for damages when they injure someone else through | |strictly liable was not at fault or negligent. |their own negligence. |

In conclusion referencing on Vicarious Liability, all the below listed stakeholders are liable to compensation in the event of an accident occurring in the premises of a Hotel owner hence rendering oblige for the compensation • Guest of the Hotel • Hotel Staff • Cleaners, • Gardeners • Newspaper delivery man • Beggar Explain the application of the elements of the tort of negligence and analyze the practical applications of particular elements of the tort of negligence. Definition of Negligence Negligence is a tort which depends on the existence of a breach of duty of care owed by one person to another.

One well-known case is Donoghue v. Stevenson (1932) where Mrs. Donoghue consumed part of a drink containing a decomposed snail while in a public bar in Paisley, Scotland and claimed that it had made her ill. The snail was not visible, as the bottle of ginger beer in which it was contained was opaque. Neither her friend, who bought it for her, nor the shopkeeper who sold it was aware of its presence. The manufacturer was Mr. Stevenson, whom Mrs. Donoghue sued for damages for negligence. She could not sue Mr.

Stevenson for damages for breach of contract because there was no contract between them. The majority of the members of the House of Lords agreed (3:2) that Mrs. Donoghue had a valid claim, but disagreed as to why such a claim should exist. Lord MacMillan thought this should be treated as a new product liability case. Lord Atkins argued that the law should recognize a unifying principle that we owe a duty of reasonable care to our neighbors. He quoted the Bible in support of his argument, specifically the general principle that “thou shalt love thy neighbor.

” The elements of negligence are: • Duty of care • Breach of that duty • Breach being a proximate or not too remote a cause, in law • Breach causing harm in fact The Elements of a Negligence Action A typical formula for evaluating negligence requires that a plaintiff prove the following four factors by a “preponderance of the evidence”: 1. The defendant owed a duty to the plaintiff (or a duty to the general public, including the plaintiff); 2. The defendant violated that duty; 3. As a result of the defendant’s violation of that duty, the plaintiff suffered injury; and 4.

The injury was a reasonably foreseeable consequence of the defendant’s action or inaction. For example, a person driving a car has a general duty to conduct the car in a safe and responsible manner. If a driver runs through a red light, the driver violates that duty. As it is foreseeable that running a red light can result in a car crash, and that people are likely to be injured in such a collision, the driver will be liable in negligence for any injuries that in fact result to others in a collision resulting from the running of the red light.

Gross Negligence Gross negligence means conduct or a failure to act that is so reckless that it demonstrates a substantial lack of concern for whether an injury will result. It is sometimes necessary to establish “gross negligence” as opposed to “ordinary negligence” in order to overcome a legal impediment to a lawsuit. For example, a government employee who is on the job may be immune from liability for ordinary negligence, but may remain liable for gross negligence.

Similarly, where a plaintiff signs a release (as may be required, for example, before entering a sports competition), for public policy reasons many jurisdictions will apply the release only to conduct which constitutes “ordinary negligence” and not to acts of “gross negligence”. The reason for this is quite simple: It is not good public policy to allow a defendant to escape liability for reckless indifference to the safety of others, particularly in contexts where the defendant is responsible for creating unsafe conditions, or is profiting from their existence.

Consider, for example, a commercial venture engaged in a high risk recreational activity, such as a company that offers rock climbing tours. If a tour member is injured when safety equipment provided by the company unexpectedly fails, a valid release may protect the company from a lawsuit. However, if the company knows up front that the equipment is defective and uses it anyway; it would not be protected by the release. Children and Negligence Minors are typically held to a different standard of care than adults.

For example, a minor’s negligence may be evaluated against what reasonably careful person of the same age, mental capacity and experience would exercise under the same or similar circumstances. Very young minors (e. g. , minors under the age of seven) are typically presumed to be incapable of negligence. Most jurisdictions also consider the fact that minors act upon childish instincts and impulses when considering injuries to minors. As a consequence, a defendant knew or should have known that a child (or children) were present, or were likely to be present, in the vicinity, the defendant may required to exercise greater vigilance.

By way of example, a person driving by an unfenced playground where children often play baseball should be on alert that a child may impulsively chase a ball into the street. Comparative Negligence When comparative negligence applies, the damages a plaintiff is awarded will be reduced in proportion with the plaintiff’s fault for his own injuries. (e. g. , a jury determines a plaintiff’s damages to be $100,000. 00, and finds that the plaintiff is 40% at fault. The plaintiff would thus be awarded $60,000 against the defendant. ) Contributory Negligence.

Where “contributory negligence” principles are applied, if the plaintiff in any way contributed to his or her own injury, the plaintiff is barred from recovering damages. The extreme consequence of this approach has led to its being limited or abandoned in many jurisdictions. One historic limitation has been to examine the context of an accident to determine who had the “last clear chance” to avoid its occurrence, and to excuse a plaintiff’s contributory negligence where the defendant is found to have had and to have failed to exercise that “last clear chance”.

Mixed Comparative and Contributory Negligence Some states follow a mixture of comparative and contributory negligence, whereby a plaintiff who is less than fifty percent at fault may recover damages reduced by the plaintiff’s proportion of fault, but a plaintiff who is more than fifty percent at fault may not recover damages, or may recover only a percentage of economic damages, against the defendants. Reference • http://www. ehow. com/list_6363982_business-agreement-types. html#ixzz1QfwEu7BX • http://www. contract. com/vicariousliabilityypes. • http://www. lawstudent. com/negligence-types.