Aspects of Contract Negligence of Business Essay Example

A contract may be described as a covenant formed among two or more individuals that are enforceable by the courts. There is dissimilarity between contracts law and other areas of the law. The dissimilarity is that in the law of contracts the contracting parties only need to abide by the principles laid out in the law to come up with their own entitlements and responsibilities. The courts are then required to enforce this rights and obligations. In some instances, the contracting parties come up with their own law or terms of the contract which they are required to follow. For the courts, however, to enforce a contract, the contract has to be enforceable upon the persons. For the contract to be enforceable, it has to meet certain necessities that are provided by the contracts law. These necessities are known as elements of a legal contract and they include: acceptance, intent to make a legal relationship, offer, consideration, capacity to enter into a contract and legality. Certain types of contracts, however, require that they be in writing, be in an electronic substitute or be in a distinct form in addition to the six elements for them be valid and binding.

Intention to Create a Legal Relation

The conception of a contract as a covenant formed by two or more parties is founded on the premise that the final outcome will be a meeting of the minds of the contracting persons. This meeting will be based on the terms and provisions that will be a part of the covenant with one another. Normally, each party will accept to do or not to do some things in return for the assurance of the other party will execute some things of a certain nature. During the meeting of the minds, the contracting parties are required to establish certain elements in regards to the contract in question. A promise is thus essential in making a contract. For a contract to be valid, however, the person making the promise, known as the promisor, has to be intending to be bound by the promise they have made. It is the general presumption that any commercial transaction is concluded when the parties are transacting with each other’s arm’s length. The intent to create a legal relationship is a presumption at law since the intent would be hard to prove. In case of denial of the intent, the courts normally apply the conduct of the party when the statements were made as a test and evaluate the behavior and statement from a reasonable person’s perspective.

Offer and Acceptance

The promise made in the course of contracting is only temporary till there is the expression by the other party to live up to the condition. Such tentative promise is referred to as an offer. It does not bind the party making it (offeror) until the acceptance of that proposal by the party to whom the offer has been made. Only when there is a legal acceptance the covenant becomes enforceable upon the contracting parties. The offer has to be made by the individual giving the offer to other person who is in turn supposed to accept it. If there is an acceptance before the communication of the making the offer, the promise or offer does not bind the offeror. Also, it is generally known that only the individual to whom the offer is made may accept the offer.
The communication of the acceptance of the offer has to be made in the manner which is prescribed by the person who has made the offer. The offeror may require the acceptance to be communicated in writing, by post or orally, and the offeree, the person to whom the offer has been made, has to ensure they abide by the set rules. The offeree is also required to unconditionally abide to all other things stated in the promise as failure to observe them would amount to a counter-offer.
Silence is normally not regarded as a form of acceptance except if there was a previous dealing between the parties where silence was accepted as a means of communicating acceptance. An offer may be ended through lapsing of the time specified for acceptance or expressly revocation of the offer by the offeree.

Consideration

In contract, each party receives something in exchange for their promise. That something is what is referred to as consideration. There are various forms of consideration. It may be among others, money, provision of a certain service, waiver of a right. The promisor has to get something in return for the promise otherwise the promise will be considered as a mere gift. The courts also look at the sufficiency of the consideration if called upon to enforce a contract. Consideration is required to be of value.

Capacity to Contract

Not every individual is permitted to contract. This means that there are some classes of individuals which if entered in the contract, it may not be enforceable. Some classes of individuals are known not to be in a position to appreciate the type of their action, and thus cannot enter into legally enforceable contracts. For instance, contracts with children are not legally enforceable unless they are contracts of necessities. The minor may terminate the contracts any time before they reach adulthood. Contracts entered into with persons of unsound mind are also not enforceable unless they were entered into when the insane person was at lucid interval during the making of the contract.

Agreeing Verbally to Stay in a Room

If acceptance by the customers to stay in a room is required by the Hotel to be in a form of verbal communication, the acceptance would be finalized once it is communicated to the offeror at the reception. With his type of acceptance, there is no question regarding the communication of the words of acceptance. Communication occurs once the words are uttered and a legally enforceable contract is created between the customer and the Hotel offering room services.

Signing Printed Terms at Reception

If the Hotel requires that the customers sign printed terms at the reception, they have to do so for the contract to become legally enforceable unto the two parties. The customer is supposed to read all the terms provided in the document they are to sign to be familiar with all the provisions of the given document. In case they do not comprehend the implication of the terms, they should be explained to in a language that they understand. Once they sign, it will be hard to defend themselves that they did not understand what they were signing. It is, however, the mandate of the offeror to ensure that the offeree understands what they are signing and that there is no ambiguity in the terms. This is because the court mainly tries to interpret the meaning of the terms in favour of the offeree, in accordance with the contra proferentem rule.

Clicking on the Hotel Website and Buying Online

With transactions over the internet, it is often difficult for the offeror to specify timing and acceptance. Since the offerors may be situated anywhere in the world, it is imperative for the parties to be specific about where and when the offer may be accepted. Generally, he offeror provides a click box together with the words I agree after outlining the terms. When the Hotel customers click on this box, it will constitute acceptance of the agreement by the customer. This then marks the formation of a binding agreement between the Hotel and the customer.

When Andrew made the 400 pounds offer, it amounted to a counter offer. This in turn resulted in termination of Basil original offer of 500 pounds. Basil was required to make another offer so that Andrew would accept. Andrew’s payment of 50,000 and emailing to Basil would not amount to a valid acceptance since there was no offer made. For any acceptance to be made there has to be an offer made. The time at which Andrew posted the money and the email are not relevant as there was no offer to which he was accepting. Basil had the right to contract with any other person he wished, as the offer he had made to Andrew had been counter-offered amounting to the offer’s termination. Andrew should just be reimbursed his money and no other remedies under contract law should be availed to him.

In this case, the hotel is relying on the exemption phrase which exempts them from any liability. The problem that arises is whether the exclusion clause was meant to be part of the agreement. The exclusion clauses, however, are required to be placed in a conspicuous place, where the infringed party would have noticeably seen it. The immunity should be clear on the plain set of the agreement. This will permit the party to go through them before they sign to be bound by the words of the pact. This also means that the exclusion phrase should also be availed prior to the contract’s signing and not after as was in this case. The clause had been put in the bedroom and the only way the guest would have seen it is after they had contracted already. These notices do not, therefore, form part of the contract. The woman is entitled to the compensation.

The supplier’s inclusion of the maximum liability clause was aimed at limiting their liability in case of breaching of the terms of contract. The maximum liability clause, however, limits their fundamental obligation towards Downton Priory and thus should not be legally enforceable. Maximum liability clauses should be structured in a way that excludes the party seeking its protection from performing its basic obligations under the contract. Also, just like in exclusion clauses, the suppliers ought to have taken reasonable steps to ensure that the existence of the maximum liability provision was brought to the attention of the Downton Priory.
The maximum liability clause in this case seeks to reduce the liability of the British Information Technologies. It excludes itself from any liability that is beyond 10,000 pounds. This clause, however, is not enforceable in this case since it was not freely negotiated by the parties. It also should be in clear and noticeable print in the agreement. The parties involved in the contract should have comparatively equal power of bargaining. This was not the case in the Downton and British Information Technologies company. The result of this lack of adherence to these rules renders the limitation term void. The Downton Priory is, therefore, entitled to recover any losses incurred from the use of the computers from the British Information Technologies company.

Torts are wrongful actions against an individual that result in damage or injury to the person, legal entitlements or property. In this light, the liability in torts arises from the breach of duties that are owed under statute. Liability in contract, on the other hand, only arises as a result of the breach of conditions, known as terms, which have been voluntarily agreed to by the parties involved. In tortious liability, the damages involved are compensatory whereas the damages involved in contractual liability are founded on the losses that are likely. These damages are for expectation losses.
There is also a difference in the proving of the guilt of the parties in order to make the offender legally responsible. In liability in contract, the presumption is that the debtor is guilty. The creditor should show that the contract exists and , therefore, a failure to honor it also. This is only until it is proven otherwise. In liability in tort, however, the burden of proof is placed upon the claimant. The claimant should demonstrate that the defendant acted illegally and that their act resulted in the claimant’s harm.

Negligence is the failure to conduct oneself with the standard of care that is expected of a person with ordinary reasonableness in a similar set of conditions. It is mainly made up of actions but it may sometimes comprise of omissions. This is especially where there is an obligation to act. Negligence in businesses is characterized by a number of factors. These elements comprise of the duty of care owed to a person, breach of that duty, injury as an effect of the breach, proximate cause. The duty in this case involves a legal obligation for a person to conduct themselves reasonably. This duty ought to be owed to the claimant. If the respondent does not owe the claimant such a duty, then any legal action brought before the court would be considered to be baseless. The duty in question is regarded legal if the relationship between the parties is required by the law to have the defendant act in a particular way. In such case, where it is deemed that a reasonable individual would find that the particular obligation exists, the court will also find so.

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The breach of the duty owed to the plaintiff arises when the respondent acts, or fails to act, in a way that is deemed rational. This is in relation with the duty they owe the petitioner. In the event of such a breach of obligation, the defendant is accountable for negligent acts or inactions. The breach of duty in question should result in some injury upon the claimant. The claimant must give evidence that the act or omission by the defendant resulted in their getting injured.
The harm suffered by the claimant should be capable of being remedied through the use of damages. It is not enough that the plaintiff suffered harm as a result of the defendant’s negligence. One should demonstrate that it can be recompensed by actual damages.

There should be an indication of proximate cause which elucidates that the injury incurred is in the actual range of liability. One is only liable for the injuries caused that could have been foreseen through their action or omissions.

The business may incur liability through vicarious means through a number of ways. First, vicarious liability may be incurred in the event of a worker of that particular business who injures or harms another person in the course of their business. The damages in this case may be sought either from the employee personally or from the business. The employee may then present the defense that they are not personally liable of the injury, but rather they were only in the course of duty. This argument will then shift liability onto the business.
A company may in other circumstances, however, argue that the particular employee was not in the line of duty at the time of the occurrence of the liable act or omission. This may be in cases where the worker, assumed to be in the conventional course of work, takes a turn or engages in doings that are not related with their employment. For instance, a delivery man from a local food restaurant, having delivered their package as ordered, decides to take a detour to his home. During this detour, the delivery man knocks a lady down. The lady then sues the local restaurant for damages. The restaurant will put up the defense that the harm suffered by the lady resulted from the delivery man’s action out of duty. In such instances, the court will give rulings that shift the liability from the business to be shouldered personally by the employee.

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Vicarious liability may also be imposed upon a business in the event of the acts or omissions of its contractors. These contractors are those who have contracted with the business but have agreed to let the business take charge and control over the contractor. Actions by independent contractors are not capable of being transferred upon the business. They are rather regarded as individual by the courts.

In this case, the Strand Supreme Hotel is well out of the negligence liability for the injury and costs incurred by Eddie Exess. The Hotel owes its customers the duty of care. Having understood that it owed its customers, with the inclusion of Eddie, the Hotel took the reasonable measures, as would be expected of any reasonable man, and warned its customers of the pool’s condition. The Hotel went even further to caution the customers by placing barriers to keep persons off the pool. By doing this, the Hotel did not breach the duty of care owed to its clients. By annulling this element, the injury suffered by Eddie together with the cancellation of the tour cannot be qualified as the Hotel’s doing. There is no proximate cause between the Hotel’s action and the harm suffered by Eddie.

The Hotel can, therefore, claim that it took reasonable steps to protect its customers from the pool. Its actions were not related to Eddie’s injuries. It was rather the negligence on the part of Eddie that led to his loss and injuries.

Vicarious accountability would not apply in this situation. This is since the use of vicarious liability is only restricted to acts or omissions that have been done by a worker of a corporation in the course of duty. In this case, the Provost Park would not be held liable for the loss of the tiara, because the driver went out of the line of business upon his taking of the detour. Vicarious liability is applied by the courts only in instances where the harm caused by an employee happened in the process of attaining the company’s objectives. The liability is turned towards the driver, personally. It is regardless that he has always done his job perfectly. It was required of him to deliver the tiara and not to take any detours. The driver’s search for his wife’s ring was purely personal business. It is through this that he, and not the Provost Park Hotel, should be held personally liable for the loss of the tiara.