ASPECTS OF CONTRACT AND NEGLIGENCE

Table of Contents
Introduction................................................................................................................................3
LO1: Task 1................................................................................................................................3
1.1 Requirements for the formation of a valid contract.............................................................3
1.2 Identification of the type of contract in the given case........................................................4
2.1 The possible claim of Eddie and Frank on Doriss vase......................................................4
1.3 Terms in contract with reference to their meaning and effect..............................................4
LO2: Task 2................................................................................................................................6
2.2 Key problems associated with exclusion clauses and role of law in ensuring that it is fair
and reasonable............................................................................................................................6
Impact of the clause on Mix-o-Crete.........................................................................................6
LO3: Task 3................................................................................................................................7
3.1 Nature of general tortious liability.......................................................................................7
3.3 Nature of employers liability with reference to vicarious liability and heath safety
implications................................................................................................................................7
LO4: Task 4................................................................................................................................8
3.2 Required factors to prove for bringing a successful claim for negligence...........................8
4.1 And 4.2 Application of the rule of negligence and vicarious law to identify if Asif would
be able to claim for his injury....................................................................................................8
Conclusion..................................................................................................................................9
Reference list............................................................................................................................10

Introduction
Contracts can be defined as the lawful agreement between two or more parties that agree to
perform few of the obligations for meeting the requirements of the parties. In this particular
study, the researcher intends to identify terms and practical application of different contracts.
For achieving complete understanding of different contracts, the researcher has performed
four different tasks in which different kinds of contracts are analysed.

LO1: Task 1

1.1 Requirements for the formation of a valid contract

For ensuring the validity of a contract, the following characteristics should be there within the
contract:

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e e ge n n c l t p i i i
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Figure 1: Requirements for valid contract

(Source: Chen-Wishart, 2012, p.32)
Specificity has been identified as one of the major factors that need to be there within the
valid contract, that is to say the legal and specific description of the terms, clauses, and
content of the contract need to be included. The considerations are to be clearly stated in the
contract, that is to say the monetary or other kinds of transactions that are made during the
contract are to be mentioned. Before engaging into the contract both the parties need to
examine their capacity of meeting the requirements of the contract. In addition, while
engaging into the contract, the parties need to ensure that the content of the agreement do not
contradict with the English Contract Law and other policies of UK government regarding
terms of contract (Lawson, 2011, p.19). The contracts should be in proper form. In majority

of the cases, written formats are preferred as they provide scope for future references. Yet in
several cases, verbal contracts are also considered acceptable.

1.2 Identification of the type of contract in the given case

Through observation of the given case, the researcher has deduced that unilateral contract is
performed here. When in a contract one party offers an express proposal without securing the
approval from the other party then such kind of contract is identified as the unilateral contract
(Goldberg and Zipursky, 2006, p.1563). The contract transforms into an express contract only
when the offeree agrees to act on the offeros promise.
The observed nature of the contract also indicates towards the implied contract, in which
even at the absence of any verbal or written agreement two parties engage into mutual
promise. As in the given case Doris offered the vases on 500 and Eddie agreed to purchase
the vase at the stated price thus the agreement can be implied. On the other hand, after the
bargaining with Frank, Doris offered the vase in 450, and by 12:30 pm, Frank agreed to buy
the vase at that price, which also assumes the mutual agreement and contract. Yet, it is to be
observed that in both the cases Doris has provided no conformity after the offers have been
made. Thus, it is evident that the given contract is of unilateral in nature.

2.1 The possible claim of Eddie and Frank on Doriss vase

In case of unilateral contracts, no claims can be made by the offerer if the offeree ignores to
accept the proposal. As no instance of Doris, accepting the proposal of any of the offeror has
been observed thus it can be said that none of them have any claim on Doriss vase.

1.3 Terms in contract with reference to their meaning and effect

Type of term
Express term

Its significance as part of the contract

These are the terms that are clearly mentioned in the contract and
agreed by both the parties, thus their presence in the contract
defines the nature of the contract along with the responsibilities

Implied term

of the parties
These terms are of no less importance as even though these terms
are not directly mentioned in the contract yet without these the

contract does not fulfil certain commercial or legal criteria.

Table 1: Significance of different terms in contract
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(Source: Gardner, 2011, p.41)

Type of term
Condition

Actions required if the term is broken

Relevant cases
Breach of such terms by one party frees Pousard versus Spiers cases
the other party to be discharged from the (1876) 1QBD410

Warranty

contract
At the breach of warranties the innocent Bettini

versus

Gye

case

party gets to claim damages yet cannot (1876) QBD183

Innominate
term

end the contract

If the innocent party is deprived majorly Hong King Fir Shipping
then the contract can be ended

versus

Kawasaki

Kisen

Kaisha case (1962) 2QB26

Table 2: Terms in contract
(Source: e-lawresources.co.uk, 2015)

LO2: Task 2

2.2 Key problems associated with exclusion clauses and role of law in ensuring that it is
fair and reasonable
Exclusion clauses are the part of the contract that avails the parties of the contract to limit
their liabilities. Manufacturers or sellers often make use of these clauses for limiting their
liability towards the effect of their product on the consumers or their profitability (Hillman,
2012, p. 43). The major problem that might arise from the exclusion clause is that the party
that has performed the wrong action might be bailed off because of their limited liability
stated in the clause. On the other hand, this also limits the liability of the parties to certain
conditions such as severe damages caused by the accused party to the wronged party.
The Unfair Contract Terms Act (UCTA) is the piece of UK legislation, which is responsible
for ensuring fairness and reasonableness of the exclusion clauses within the contracts
(McKendrick, 2014, p.17). This particular piece of legislation ensures that the responsible
party does not get to withdraw their liability in the following situations:

Death or major personal injury

Breach of the statutory implied terms mentioned in the consumer contract

The UCTA ensures that the manufactures or buyers of the goods do not get opportunity to get
rid of their responsibilities concerning the quality of the products that they avail and the
physical

damage

that

their

product

might

cause

to

the

consumers

(Legalresearch.westlaw.co.uk, 2015).

Impact of the clause on Mix-o-Crete

The cause availed in the contract might be partially applicable as Bob availed his consent to
the clause through signing the contract. thus if the concrete mixer fails to meet the promised
high quality without threatening the life or severe injury to any person then Mix-o-Crete
might rely on this clause, as in such cases the organisation becomes able to avoid its
responsibility through the exclusion clause. Yet if the concrete mixer fails to meet the basic
standards of such products because of which life threatening incidents take place then the
organisation might not rely on the clause as according to UCTA the accused cannot avoid
remedies for death or major personal injury.
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LO3: Task 3

3.1 Nature of general tortious liability

The nature of tortuous act of an individual or company differs from that of the criminal act as
the tortuous activities involve liabilities that might be met through the lawsuits or financial
compensation while in case of criminal liabilities often the damage cannot be compensated
through mere financial recompense (Brodie, 2007, p.502). In case of tort, the nature of the
liability also differs from that of the contract, as in case of tort the basic aim of compensation
is to place the victim at the position in which the victim could have been if the tort was not
performed. Thus, the tortuous party might be liable to compensate not just the financial
damages but also the other factors that faced issues because of the tortuous activities.

3.3 Nature of employers liability with reference to vicarious liability and heath safety
implications
The employers liability towards the employee is determined based on the Employers
Liability (compulsory Insurance) Act 1969 and Employers Liability Act 1938. The
Employers Liability Act 1938 determines the acceptable and unacceptable behaviour of the
employer within the work place and the treatment that the employer is liable to avail to the
employees. On the other hand, Employers Liability (Compulsory Insurance) Act 1969
indicates that employers are responsible for the health and safety of the employees and need
to ensure that the organisational activities do not cause health hazards or injuries to the
employees (Hse.gov.uk, 2015). Thus, the Employers Liability Insurance make the employer
responsible for the financial expenses of the treatment of the employees for any injury or
health hazard caused to the employee because of their activities within the work place (Wan,
2011, p.149).
Another significant liability of the employer is vicarious liability, which indicates that the
employer is responsible for the acts or omissions of the employees if the act or omission took
place in the course of the employment. In such cases as the employer has the power to control
the actions of the employees during their servitude, thus the employers are identified as
vicariously responsible for the actions of employees (Baram, 2007, p.15). Under the
respondeat doctrin the harm caused to the victim because of the negligence or omission of
employees makes employers also vicariously liable as the tort is performed during course of
employment (Acas.org.uk, 2015).
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LO4: Task 4

3.2 Required factors to prove for bringing a successful claim for negligence
For winning the case of negligence, it is essential for the plaintiff to prove the following four
factors that would deduce that the defendant has performed negligence:

F a c to r s to p r o v e fo r a s u c e s fu l c la im fo r n e g lig e n c e
Figure 2: Factors to prove for a successful claim for negligence
(Source: Bonell, 2008, p.16)

Firsts the plaintiff through the analysis of the contract needs to establish that the defendant
owes a legal duty toward the plaintiff under the circumstances in which the negligence has
been claimed. Then the plaintiff needs to prove that the defendant has failed to met those
duties because of which the breach took place. Then the plaintiff needs to establish that the
physical injury or the financial damage that took place have been caused because of the
actions or omissions of the defendant (Oswald, 2008, p.256). Finally, the plaintiff needs to
state the damages that have been caused because of the defendants actions and their severity.
Through meeting these four factors, that plaintiff might be able to prove the accusations and
make claim for the negligence (Hkclic.org, 2015).

4.1 And 4.2 Application of the rule of negligence and vicarious law to identify if Asif
would be able to claim for his injury
Studying the given case it is well evident that the injury caused to Asif was a result to the
fault of both the parties. Thus in this case not wearing the belt might make Asif face
accusations for the severity of the damages. Yet, due to the laws broken by Jerry while
driving the van, Asif might gain opportunity to claim for the compensation. Jerry drove at the
speed of 50mph in the zone were the highest limit of speed was restricted till 30mph, this
provides Asif an opportunity to state that negligence performed by Jerry has caused the
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injuries. On the other hand, Asif might also claim for compensation from the employer of
Jerry as jerry was using the companys vehicle and was on duty of driving for the deliveries
while engaging into the accident. This assigns secondary liability to the owner of the
organisation because of the vicarious liability (Schulte-Nolke, 2007, p.337).

Conclusion
Through conclusion of this study, the researcher has been able to identify the different terms
that are applicable in different kinds of contracts. It has also enabled the researcher to identify
the liability of employers towards the employees and their activities.

Reference list
Books:
Chen-Wishart, M. (2012). Contract law. Oxford: Oxford University Press.
Hillman, R. A. (2012). The Richness of Contract Law (Vol. 28). Berlin: Springer Science &
Business Media.
Lawson, R. G. (2011). Exclusion clauses and unfair contract terms. London: Sweet &
Maxwell.
McKendrick, E. (2014). Contract law: text, cases, and materials. Oxford: Oxford University
Press.
Journals:
Baram, M. (2007). Liability and its influence on designing for product and process
safety. Safety Science, 45(1), pp. 11-30.
Bonell, M. J. (2008). The CISG, European Contract Law and the Development of a World
Contract Law. The American Journal of Comparative Law, pp. 1-28.
Brodie, D. (2007). Enterprise liability: justifying vicarious liability. Oxford Journal of
Legal Studies, 27(3), pp. 493-508.
Gardner, J. (2011). What is Tort Law For? Part 1. The Place of Corrective Justice. Law and
Philosophy, 30(1), pp. 1-50.
Goldberg, J. C., and Zipursky, B. C. (2006). Seeing Tort Law from the Internal Point of
View: Holmes and Hart on Legal Duties. Fordham Law Review, 75, pp. 1563.
Oswald, L. J. (2008). International Issues in Secondary Liability for Intellectual Property
Rights Infringement. American Business Law Journal, 45(2), pp. 247-282.
Schulte-Nolke, H. (2007). EC Law on the Formation of Contractfrom the Common Frame
of Reference to the Blue Button. European Review of Contract Law, 3(3), pp. 332-349.

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Wan, K. S. (2011). Internet Service Providers' Vicarious Liability Versus Regulation of

Copyright Infringement in China. Journal of Law, Technology and Policy, 2011(375), p.
149-150.
Websites:
Acas.org.uk, (2015), Understanding what vicarious liability means for employers, available
from: http://www.acas.org.uk/index.aspx?articleid=3715 [Accessed on: 21/10/2015]
E-lawresources.co.uk, (2015), Conditions, warranties and Innominate terms, available from:
http://e-lawresources.co.uk/Conditions,-warranties-and-innominate-terms.php [Accessed on:
21/10/2015]
Hkclic.org,

(2015),

business

And

Commerce,

available

from:

http://www.hkclic.org/en/topics/businessAndCommerce/setting_up_business_in_Hong_Kong
/making_a_business_contract/q1.shtml [Accessed on: 21/10/2015]
Hse.gov.uk, (2015), Employers Liability (Compulsory Insurance) Act 1969, available from:
http://www.hse.gov.uk/pubns/hse40.pdf [Accessed on: 21/10/2015]
Legalresearch.westlaw.co.uk, (2015), exclusion clauses unfair contract terms, available from:
http://legalresearch.westlaw.co.uk/books/exclusion-clauses-unfair-contract-terms/ [Accessed
on: 21/10/2015]

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