Aspects of contract and negligence

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Aspects of contract and
negligence

Table of Contents
Introduction ............................................................................................................................... 3
Project A....................................................................................................................................... 3
Task 1........................................................................................................................................3
Task 2........................................................................................................................................5
Project B....................................................................................................................................... 6
Task 3........................................................................................................................................6
Project C.......................................................................................................................................8
Task 4........................................................................................................................................8
Conclusion ............................................................................................................................... 10
references.................................................................................................................................11

INTRODUCTION
Contract is a legal agreement between two or more competent parties
to do or not to do a particular thing. It creates contractual obligations for
parties to perform. Tort law is a part of law which is established for act of
negligence (Clarkson and et.al., 2010). It arises in absence of contractual
relationship between parties. Present project report is focused on Contract
and Tort Law of UK. The report comprises of legal clauses and precedents to
provide effective judgment for given case studies. Various laws have been
discussed such as Vicarious Liability and Occupiers Liability Act to support
judgment for given scenario in the assignment.
PROJECT A
Task 1
Contract and its essential elements
Contract can be defined as an agreement between two parties which
creates obligation for each party to do or not to do certain thing (Oughton,
Marston and Harvey 2007). Examples of contract are rental deed, purchase
document, promissory note etc. An agreement is said to be contract if
essential elements are present in it, these elements are enumerated below-
Offer- An offer is an expression of willingness of a party to other, for
entering into a contractual relationship. It can be general or specific.
Offer is required to be certain and legal in the eyes of law.
Acceptance- Acceptance is the positive indication of the party to
whom offer was made. There should be no conditions in the approval
(Elements of Law of Contracts. 2012). If there is conditional acceptance
then it will be considered as counter offer, which must be accepted by
the other party.

Consideration- For validity of contract, it is essential that promise
should be made in exchange of something which can be measured in
value. In legal terms it is known as Pro-Quo (i.e. something for
something). It is not vital to be sufficient.
Legal intention- There should be legal intention of parties to enter
into contractual relation. Thus, agreement made out of love and
affection has no legal biding. If there is no intention to create legal
relations in a contract, the contract could not be subject to a lawsuit
(Clarkson, and et.al., 2010).
Impact of types of contract
Oral and written contract- Contractual agreement can be formed
in oral or written form. Oral contracts are verbal agreements which
are made on faith. Written contracts are more formal comparative
to verbal. In situation of contradiction of oral contract, judgment
depends on the situation while in written contract, deed is referred
to determine award.
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Face to face and distance contract- In face to face contract, all
the parties are present while formation of deed. In distance contract
agreement is prepared through mailing and telephonic
communication. Distance contracts are more complicated
comparative to face to face contract.
Express and implied contract- If contracts are formed with
specific terms and conditions then it is considered as express
contract. Sometimes party does not specifies what the terms are,
but their actions are considered as the conditions of the contract. In
such situations there may be an implied contract.
Unilateral and bilateral contract- Unilateral contracts are one
sided contracts in which promise is made by one party without
having consent of other party. There is no obligation on other party
to perform, but if performance is given by other party then first
party will be obliged to give performance (Oughton, Marston and
Harvey 2007). Bilateral contracts are created on the basis of mutual
exchange of promises.
Case study 1
In the given scenario advertisement is given by Jess for the sale of the
care on a trade website for £2650. This will be considered as invitation to
treat. On the reference of advertisement Mr. Powell provided offer to Jess for
the purchase of the car. In this situation, there was a distance contract
between Mr. Powell and Jess. Advertisement will be considered as invitation
to offer on which offer was given by Mr. Powell. Due to distance factor Mr.
Powell said he will come after 3 days but Jess said if anyone comes before
you then I will sell the car. On this Mr. Powell said he will pay advance if Jess
promises that she will not sell the car for next three days and Jess agrees to

this. This will be considered as counter offer. On this offer acceptance is
provided by Jess on the counter offer of Mr. Powell for a consideration. All the
essential elements of contract are present in the agreement of Mr. Powell
and Jess thus there is valid contract between them which binds them in
contractual relationship.
Further there was conditional acceptance between the parties
(Schaffer, 2009). At the end acceptance is provided by Jess on the counter
offer of Mr. Powell for a consideration. All the essential elements of contract
are present in the agreement of Mr. Powell and Jess thus there is valid
contract between them which binds them in contractual relationship.
Task 2
Terms of the contract
Terms are the duties and obligations of the parties which are required
to be fulfilled while giving performance. It can be expressed or implied.
Expressed terms are more specific, which are inserted by mutual acceptance
of parties (Best and Barnes, 2007). It should not be contradictory to law.
Implied terms of the contract are inserted by law of custom. It is assumed to
be present in the agreement of parties. If there is contradiction between
expressed and implied term of contract then expressed term will prevail. In
certain situations implied terms prevail when expressed terms are against
the public policy.
Case study 2
In the given situation, Barry went to the park to hire a chair.
Commercial activities of park were managed by local council. Barry paid 50p
for the ticket for use of chair in park. After some time his chair collapse and
caused damages to his clothes (Mann and Roberts, 2012). For this, Barry
went to the attendant for complain. The attendant pointed towards the

clause at the back of the ticket which states “no liability will be accepted by
local council in situation of failure of any hired equipment”.
In the given scenario there is implied contract between Barry and local
council. Offer was given by Barry by paying 50p. It was accepted by local
council by giving him ticket. There was proper consideration and legal
intention of parties to enter into contractual relationship. Thus, there was
valid contract between them. They both are obliged to follow terms and
conditions of the contract.
Clause written on the ticket will be considered as the exclusion clause
of the contract, as it is reducing obligation of local council in situation of non-
satisfactory performance. Implied terms in the contract are local council
should take care of their equipments that it may not harm the users of it
(Clarkson and et.al., 2010). In the given situation both terms are
contradictory. In the given situation exclusion inserted by local council is not
fair and valid. For this aspect case of Barry V Chapleton can be considered.
As per this case, ticket is merely a receipt term stated on it will not be
considered as part of the contract. As a consequence, council is not entitled
to avail the benefit of exclusion clause.
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To avoid contradictions in future, customers of local council should
carefully read the terms written on the ticket. Council can write the terms on
the board near the park which should be clearly visible to the visitors
(Clarkson, 2010). Along with this, they should modify the terms to eradicate
contradiction in expressed and implied terms.
PROJECT B
Tort is the civil wrong which arises from the act of negligence of
defendant party. Tort law is applicable when there is absence of contractual
relationship between parties. Torturous liability is imposed by law.
Task 3
Contrast liability of tort with contractual liability
Contractual and tort liability both are part of the civil law. These
liabilities are established to provide damages to innocent party from the act
of the defendant. Liability can be removed if there is bilateral mistake or
negligence of parties. Differences among them are as follow-
Contractual liability is established at the will of the parties while tort
liability is imposed by law. Obligation for damages in contract arises due to
breach of terms and conditions which are pre determined by the parties. In
torturous liability it arises due to act of negligence. Damage under breach of
contract is provided due to bring claimant in position if performance was
given by defendant (Clarkson and et.al., 2010). Damage under torturous
liability is provided to bring claimant in position if negligent act was not
occurred. In contractual liability claim can be done for minor damages but it
is not possible in tort.
Nature of liability in negligence
Liability due to act of negligence are established for defendant by the
case precedent of Donoghue V Stevenson, 1932. In this case study Mrs.

Donoghue went to the café for ice-cream and ginger beer. In his drink a
decomposed snail emerged out of it. On this claim was made for damages on
Stevenson for the injury (Bar, 2009). It was held by the court that
manufacturer failed to hold duty of care thus he will be liable for damages.
According to this all persons should perform their duty with care. Their act
should not be the reason of injury for other innocent parties. If a person fails
to hold duty of care then he will be liable for his negligent act under law of
negligence. Liability under Act of Negligence can be imposed if following
conditions are satisfied-
➢ Defendant should owe duty of care to claimant
➢ Negligent act of defendant should be the primary reason for harm of
claimant
➢ There should not be contractual relationship between parties
➢ Damages should not be too remote for claim
Defences are provided to defendant in the following situations-
➢ Volenti-non Fit injuria- Risk is taken by claimant at his own will.
➢ If there is contributory negligence of both the parties then damages
cannot be claimed by either of the party.
➢ If there is written and legal clause in agreement then liability of
negligence can be excluded. But such clauses should not be against of
law and custom.
Vicarious liability
Vicarious is the Latin word which means alteration and modification.
Vicarious liability is an aberration from the norm of holding, in this innocent
party is liable for damage caused by tortfeasor (Employer Vicarious Liability.
2013). Legal relationships which can lead to imputed negligence are covered

in this law for example relationship of parent and child, husband and wife,
and employer and employee etc.
Business can be held vicariously liable for the tortuous act of
employees which are committed during the course of employment. This
encourage accident prevention by giving employer legal duty to take care of
their employees and their acts (Morgan, 2011).
Case study 3
In the given situation advertisement was given by Adam for
announcing reward for the person who will cross the English Channel first
from Dover to Calais. On the basis of advertisement Brian purchased bath
and went for the accomplishment of the task (Oughton, Marston and Harvey
2007). Meanwhile another advertisement was given by Adam for termination
of reward announced in the previous commercial. Brian was unaware about
the second advertisement and he completed in performance. Now Brian is
claiming for reward and Adam is refusing for the same.
In the given situation unilateral offer (i.e. general offer) was given by
Adam, which can be accepted by anyone. Performance was given by Brian
shows acceptance by him for the contract. There was a proper consideration
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and legal consideration which is sufficient to create contractual obligation for
the parties (Faure, 2009). Hence there was valid contract between Adam and
Brian. Given situation can be linked to the case precedent of Carlill v Carbolic
smoke ball company 1893 1 qb 256. In this case prize was declared by the
company for any person who will use the smoke ball three times in a day as
intended in tapered infection, colds, or any other disease. On the basis of
advertisement Carlill purchased a ball and used as per directions and
claimed for prize. Company refused to pay. Award was declared by the court
that the company is liable to pay Carlill and they cannot refuse for the same.
Correspondingly in this situation Adam is liable to pay prize announced by
him for the performance given be Brian.
Qualities of managing and organizing responsibility
All persons should hold duty of care while giving their performance so
their ignorance or negligence cannot harm other innocent parties (Harpwood,
2009). According to the principle of negligence, every person must take
sensible care to avoid act of omission which can cause injury to the other
party. Under this law neighbor are the parties who can be directly or
indirectly affected from the actions of primary person.
To prevent vicarious liability business should take care of environment
so their action should not cause injury to their visitors. They are also
responsible for the negligent act of their employee. Thus business should
take responsibility of the act of employees in the tenure of employment to
prevent such actions.
PROJECT C
Task 4
Occupier’s Liability Act

Occupier’s Liability Act was established in 1957 to enhance the duty of
care and avoid negligent act. According to this Act owner is responsible for
the injury of visitors of his premises.
Case study 4
Given case study is on the Poshplace hotel which is owned by Ben.
Mark decides to check in at hotel for a night. At that night a man entered in
his room and threatened him to harm and to ask him to handover is antique
jewellery. Robber was none other than gardener of the hotel who has master
key of the hotel (LaMance, 2013). Meanwhile in the kitchen Roger was
complaining due to skin infection. Although gloves was provided by employer,
that was not used by Roger. Colin gets irritated by the act of Roger and hit
him with the pan. In meantime Mark went to pool to cheer himself. There
was a sign board with a warning that Pool is closed from 7.00 P.M. to 7.00
A.M., entry is restricted for visitors as it will hazardous when unattended.
Mark ignores the warning board and got injured and tears his expensive
designer swim wear.
In the given situation four negligent acts occurred on which judgment
will be provided through vicarious liability, occupier’s liability act and
negligence (Journal of Tort Law. 2007). First incident happened with Mark of
robbery in this vicarious liability will be applicable. Second incident is with
roger in which defense in provided to employer of contributory negligence.
Third incident is again with Roger for physical violence for which vicarious
liability will be applicable. Fourth and last incident is with Mark of swimming
accident in which defense is provided to the Poshplace Hotel of Volenti-non
Fit injuria.
Judgment for given statements is as follow-
➢ Statement A: Given statement is true as there is not duty of care of
Neil to Roger for providing safe working environment. Prescribed duty

is of employer i.e. Ben. He is responsible to provide safe and hygienic
environment to employers. In the injury of Roger, owner cannot be
held liable because safety gloves were provided by him to employees
for use. There is situation of contributory negligence. Roger had not
taken the safety precaution which is the reason of his skin injury. He
cannot claim for damages for such injury.
➢ Statement B: Given statement is false. Roger can claim from the
owner under Vicarious Liability for the action of Collin. It is the duty of
employer to instruct employees to avoid such violent act in business
(Faure, 2009). Ben will be held vicariously liable for the act of Colin and
will be obliged to provide damages to him. This will not remove
obligation from actual tortfeasor i.e. Colin, legal penalty will be
attracted to him.
➢ Statement C: No, The Poshplace Hotel is liable to Mark under
Occupier’s Liability Act, 1957. It was responsibility of hotel to take care
of visitors and their antiques. Employee of hotel looted him and
threatened him. Hence, Mark is eligible to claim for damages.
➢ Statement D: According to amended act of Occupier’s Liability, 1984
there is no liability of The Poshplace Hotel to Mark. In the given case
Volenti-non Fit injuria will be applicable as risk was taken at the choice
of Mark (Harpwood, 2009). He ignored the warning written on the
board near the pool. Organization completed their responsibility by
keeping their board for visitors. Hence The Poshplace Hotel will not be
liable for the swimming injury of Mark.
➢ Statement E: No, Mark cannot use the ordinary principles of
negligence for claim against The Poshplace Hotel as there was a
contractual relationship between them. Mark was injured twice at that
night. First injury was due to robbery and second was due to swimming

accident. For first injury he can claim under vicarious liability on the
hotel for second defense is provided to hotel of Volenti-non Fit injuria
(Hassett, 2012).
➢ Statement F: Given statement is true. Damages cannot be claimed by
Mark for the cost of his swimming trunks under the Occupiers’ Liability
Act. As his swim suit got damaged due to his own negligence. For this
injury defense under negligence is provided to The Poshplace Hotel of
Volenti-non Fit injuria. Mark ignored the warning and got injured, so for
this hotel cannot be held liable.
➢ Statement G: Mark cannot use law of Vicarious Liability to bring
claim against the Poshplace Hotel for the loss of his jewellery. As Mark
was looted by the employee of the hotel and it is criminal offense
(LaMance, 2013). Vicarious liability does not permit transfer of
obligation arises due to criminal offense of employee on employer.
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CONCLUSION
From the present project report it can be concluded that essential
elements are required to be present in an agreement to make it enforceable
by law. Contract and Tort both are the part of the civil law which is created to
manage contractual and negligent acts. Damages are provided to claimant in
both the laws to recover damages of claimant (Elements of Law of Contracts.
2012). According to Occupier’s Liability Act and vicarious liability business
can held liable for the injury of visitors caused due to the negligent act of
employees. Thus to prevent such actions business should take care of
environment and do their acts with duty of care by avoiding omissions and
negligent acts.
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REFERENCES
Books and Journals
Bar C. V., 2009. Non Contractual Liability Arising out of Damage Caused to
Another. Walter de Gruytre.
Bennett, L. and Gibbeson, C., 2010. Perceptions of occupiers' liability risk by
estate managers: A case study of memorial safety in English
cemeteries. International Journal of Law in the Built Environment. 2(1)
pp.76 – 93.
Best, A. and Barnes, W.D., 2007. Basic Tort Law Aspen Publishers Online.
Clarkson, K.W., 2010. Business law. Text and Cases: Legal. Cengage learning.
Clarkson, W. K. and et.al., 2010. Business Law: Text and Cases: Legal: Text
and Cases : Legal, Ethical, Global, and Corporate Environment,
Cengage Learning.
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