Aspects of Contract and Negligence - Essay Example

? Assignment Aspects of Contract and Negligence Law College: May 13, Case a) Different Types of Business Agreements Katie’s interests are important and, therefore, before she enters into an agreement it is vital that she knows various types of business agreements at her disposal. This will ensure that she makes a sound decision by getting into an agreement that safeguards her interests. Business agreements can either be bilateral, unilateral and standard. This paper will explore each type of agreement and discuss the best contract for Katie. Standard form contract is very common in today’s world; it is mainly common with large companies. It occurs when companies draft terms and conditions of their agreements with their customers. The customers are not given an option to negotiate; if they cannot comply with the terms set, then their only option is to not enter into the contractual agreement. Unilateral agreement occurs when promises are made by one party, this type of contract can be best described by an advertisement requesting any person with any information of where about of a fugitive to turn him in for a reward. Bilateral agreements, on the other hand, occur when both parties have binding terms. This is normally in commercial contracts between companies. Bilateral contractual agreement is the best in the case of Katie and the builders. This is because it allows Katie to be able to set terms as well as the builders so that the work can be to her satisfaction. If one of the parties fails to meet the terms set, then the aggrieved party has a right to take a legal action. b) Standard Form Contracts The design of standard form contract is such that, in the event of breach of an agreement, it excludes liability or limited (Stone & Stone, 2002). A clause can be used to exempt a party from liabilities if it is part of the terms of the contract. If a party signs a document without reading it, he or she becomes bound by the terms set out in the document. If the document that sets out the terms is not signed by one of the parties, it can lead to lack of action against the party that breaches the contract. The main advantage of this kind of contract is that there is no need to draft it and the terms are very certain to the parties. The risks involved in this kind of an agreement are spread over to both parties making sure that none of them is on the losing side if their expectations are not fulfilled as a result of unexpected circumstances. The only disadvantage is that parties may have a hard time interpreting terms, and can even misinterpret them that can lead to a dispute resulting to breach of contract. c) Example of a Standard Form Contract An example of a clause in standard form agreement can read, “Jane will not be liable for any damages caused by negligence caused by Sam’s company”; this means that Jane will not take responsibility for damages that may occur because of Sam’s company negligence. d) Impact of Rules of Contract to Online Agreements The era of the internet has brought drastic change on how business contracts are carried out (Poullet, 2007). However, the rules of contracts remain the same and companies doing business online have to abide to the relevant regulations (Cavazos, & Morin, 1994, 39). These regulations were passed so that consumers who shop online can be protected as well as business people who order supplies online. The UK passed Consumer Protection (Distance Selling) Regulations in 2000 to ensure that consumers who purchase goods and services are protected. These regulations do not apply to all kind of contractual agreement involving online transactions since they do not cover contractual agreements between businesses. They were passed as a result of a directive of EU of 1997 that provided protection for consumers involved in distance contracts (Great Britain, n.d). The regulations ensure that consumers have the right to request information concerning goods or services they are to be supplied with, and how much they cost before they can decide to buy or purchase. The information that consumers receive should be in writing to make the agreement binding. There is a period of seven days where parties are allowed to withdraw from the agreement, and there is protection from card fraud in payments. Case 2 a) The precise nature of Sofia’s Advert An offer is defined as willingness to make a binding contract on terms that the parties agree on, however, the nature of Sofia’s advert is that of an invitation to because it was simply an invitation to negotiations. In Harris V Nickerson (1873), it was held that an advert for auctioning of goods was an invitation to treat and that the plaintiff could not recover damages for having found that the goods were not at the action (Richard, 2006). Whether Danish has entered in to a binding contract with Sofia The contract Danish entered into was not binding since it lacks one of the elements of a binding contract which if the offer. This is because Sofia did not will to contract with any particular person she just sent an invitation to treat so that from all the parties who would be interested in the advert she could get into a contractual agreement with one of them. Therefore, Danish’s acceptance did not make any legal agreement between him and Sofia. In contract law, one cannot accept that which you have not been offered. b) Whether Clarisse has any right of action against Sophia Clarisse had a binding agreement with Sofia this is because they negotiated and Sofia accepted her offer. This can be proven by the fact that she accepted twenty dollars from Clarisse. Sofia’s advert invited people to make an offer, which Clarisse did, and she accepted meaning that there was a binding contract between the parties. Clarisse was the offerer she made the offer and Sofia accepted the terms of the contract. According to Fafnski, and Finch an offer is defined as the willingness to get into a contractual agreement on certain terms that is made with the intention that it becomes binding when the other party accepts it. From this definition, it is clear that Sofia accepted Clarisse’s offer when she accepted some amount of the full amount she wanted. c) Whether Sofia has any right of action against Abs The agreement between Sofia and Abs was not binding since Sofia was already in another contractual agreement with another party. The agreement was enforceable since Sofia did not have capacity to enter into a contract, therefore, the contract was voidable as it was and Sofia could not recover damages from Abs. Sofia misrepresented herself by entering in another contract which she had already entered into a legally binding agreement with Clarisse. Fraudulent misrepresentation was explained in the case of Derry versus Peek by Lord Herschell to be an untrue declaration that is made deliberately or intentionally, irresponsibly/without-undue care and exclusive of any faith in its truth. In this case, Sofia entered into a contract with Abs claiming the computer was available yet she had already entered into a contract with Clarisse for the same commodity. d) How would your answer differ if abs was 15 years old If Abs were under 18 years old, she would be a minor and, therefore, would not have the capacity to enter into a legally binding agreement. Sofia would have had the capacity since she is an adult but Abs would have the capacity to escape the contract if she felt like it. Therefore, if Sofia were able to enter into a binding contract and Abs failed to fulfil her promise, then Sofia could not file for damages. This is because, as stated above, Abs as a minor can escape a contract if she wanted to. Contracts that have a minor as a party are voidable and the minor can decide to end it before he or she reaches the age of majority. However, in this case Sofia had no capacity to enter into another agreement since she had already entered into an agreement with Clarisse, therefore, even if Abs were a minor and did not fail to pay the 200 dollars she promised, the contract would be void on basis on unenforceability. Case 3 a) Terms Terms are the binding agreements or condition stipulated in any contract got into in to by the parties concerned or involved. They must be explicitly stated and should be clear on how they apply, how they are to be used and under what grounds one would be deemed to have gone against the terms of the contract (Tillotson, 1985). In an employment case, a dispute may arise on promises that were made by one of the parties in order to entice the other party to come and work for them. This can occur where one of the parties feels that not everything that they were promised was met. There are two types of terms, implied and express terms, implied terms are those terms that are vital to the formation of the contract. In most cases, these terms occur when the contract is based on commercial goods. For instance, sale of goods section 13 states that if a person selling goods based it on description, then they have to meet the description (Blair, 1980). Section 15 states that if goods are sold based on a sample ten, they have to meet the quality standards of the sample (Blair, 1980). Express terms on the other hand are those terms that have been discussed by the parties and agreed upon and are mostly expressed in writing. Conditions Conditions are defined as the terms/provisions that are used to define a contractual engagement and are very important, and any lack of performance of them usually lead to breach/cancellation of a contract. This was held in Poussard vs. Spiers (1876), where an opera singer entered into a contract to perform but got sick and could not perform and was, therefore, replaced and sued. It was held that she was in breach of contract for having failed to perform the first day since it was the most important day of the whole performance, and thus, in cases of breach of a conditional contract, the injured party has the right to end the contract and claim damages. Warranties Warranties are defined as terms that are not at the center of the contract meaning that they do not lead to breach of contract (Blair, 1980). In cases of breach of a warranty, the innocent party can only claim damages but cannot end the contract. In Bettini vs. Gey, an opera performer entered into a contract to perform in London. She was supposed to arrive a few days before the performance day for rehearsals, but she became sick and could not attend the rehearsals. Consequently, she was replaced and it was held that the employer had no right to replace her since she had breached a warranty. b) Innominate terms It is a Contractual word that may go round out to be either a clause central to the agreement or turn out to be a warranty. All this will be determined by the effect that it has on the injured person or parties. It looks to determine whether the innocent party was in any way hurt. It also looks to establish the benefits of the agreement before determining on whether the agreement should be brought to an end. The nature or amount of loss/damage incurred by the innocent party determines whether the contract will be ended by the breach or it will lead to payment of damages. In Hong Kong Fir Shipping v Kawasaki Kisen Kaisha, it was held that a ship that was chartered failing to work efficiently for two weeks over a period of two years could not lead to repudiation of the contract. This is because the breach did not lead to lack of full benefits of the ship to the defendants. A) Does Rafael have an action against Michael regarding his purchase? Sale of goods Act 15 states that goods that are sold by sample should be of the same quality as the bulk (Blair, 1980). In this case, Raphael bought the shoes as a result of the sample he saw and, therefore, he can sue for damages or end of the contract. The goods that are bought as a result of / relying on a particular sample displayed to the buyer cannot make sense if they are not of the same quality as the sample. B) Legal effect of the note found in the box The note acts an exclusive term that makes the seller not liable of responsibility. However, in this case Rafael did not get chances to read the note before purchasing the goods rendering it non-binding. In such cases, the court considers what a reasonable man would do in such a case (Great Britain, 1986). In this case, a reasonable man would hold Michael accountable for breach of contract for having the bulk not matching the sample. References List Anderlini, L., Felli, L. & Postlewaite, A. (2003). Should courts always enforce what contracting parties write? p.5 Blair, M. C. (1980). Sale of Goods Act 1979. London, Butterworth. p. 35 Cavazos, E. A. & Morin, G. (1994). Cyberspace and the law: your rights and duties in the on-line world. Cambridge, Mass, MIT Press. P. 39 Collins, H. (1993). The law of contract. London, Butterworths. p 161 Great Britain. (n.d.). A guide for business to the Consumer Protection (Distance Selling) Regulations 2000 (SI2000 No. 2334). p 45 Poullet, Y. (2007). Electronic Contracts and Contract Law Principles. Liber Amicorum Guido Alpa : Private Law Beyond the National Systems. pp.759-772. Stone, R., & Stone, R. (2002). The modern law of contract. London, Cavendish. p.2 Tillotson, J. (1985). Contract law in perspective. London, Butterworths. p. 145 Richards, P. (2006). Law of contract. Harlow, England, Pearson Longman. Chapter 2 Great Britain. (1986). Consumer guarantees: a report by the Director General of Fair Trading. [London] ([Chancery House, Chancery Lane, WC2A 1SP]), Office of Fair Trading. Cases. Read More