Whether there is a legal contract amid Amy and the supermarket?
A legal contract is the combination of several elements which consists of an agreement (an offer plus and acceptance), legal consideration, party’s capacity and the intention of the parties. (Fisher & Greenwood, 2011)
An offer is the prime essential which starts the formation of the contract. The offeror when transfers his intention either orally or by words or conduct to the offeree with the belief of approval, then, such an act is an offer. An offer can be to specific person or to the world and is held in (Carlill v Carbolic Smoke Ball Company , 1892). The confirmation of the offer by the offeree is an acceptance in law (Felthouse v Bindley, 1862). (Fisher & Greenwood, 2011)
At times, the party does not wish to make an offer but desirers to receive offers. Such acts are called invitation to treat. The inviter with the help of advertisements, tenders, auctions, etc, may invites people from the public to make an offer to him (Partridge v Crittenden [, 1968). The inviter then acts like an offeree and if gave his approval to such offer results in the formation of a contract with such offeror. In, (Pharmaceutical Society of Great Britain v Boots Cash Chemists , 1953), the display of goods in the shop is considered to be an invitation to treat and any person who wishes to buy the displayed products must pick them up and bring them to the counter. This act is an offer from the intended buyer. If the cashier accepts the offer of the buyer then there is a contract otherwise there is no binding contract amid the two. (Mau, 2010)
Amy visits the great supermarket to buy the groceries. The groceries are placed at the shelf. She picks the same and fills her basket. Now, as per (Pharmaceutical Society of Great Britain v Boots Cash Chemists , 1953), the display of goods is an act of invitation and thus the display of groceries by the supermarket is just an invitation that is made. So, Amy must make an offer to the supermarket to buy the same and if the supermarket accepts the offer then there is a contract amid the two.
But, Amy when approached the cashier she receives a call from her secretary and she has to reach to her boss immediately. She puts down the products and wanted to leave. It is submitted that Amy only has picked up the groceries but she has not made any offer to the cashier to buy the products.
Thus, the cashier cannot confirm the offer unless the same is received to him. Since there is no offer made by Amy thus there is contract amid the two.
Conclusion
There is no offer that is made by Amy to the supermarket. Thus, there is no binding contract amid the two.
Whether Amy is obligated to sell her I phone X to Bell?
An offeror makes an offer to the offeree wherein the offeror either by conduct, orally or in written form communicates his intention to the offeree to undertake any act or omission or hopes that the same will be affirmed by the offeree and is held in (Carlill v Carbolic Smoke Ball Company , 1892). The offeree when gave his approval to the offeror terms without bringing any changes to the same then it is termed as an acceptance in law. (Fisher & Greenwood, 2011)
Many a times, the offeror when makes an offer then he gave a time span within which the offeree must gave his approval. It is necessary that it is obligatory upon the offeree to gave his accept within the said time span, otherwise the offer is lapsed by lapse of time. (Chui & Roebuck, 1991)
But, it is not obligatory upon the offeror that he must wait for the approval of the offeree. The offeror is free to make a contract with any other party provided there is approval received from the offeree. However, if the offeree has made any consideration to hold the offer open for him for a particular time span. Then, the offeror is not permitted to establish any contract with the third party unless the time lapses (Chui & Roebuck, 1991)
Amy is wishing to sell her I phone X to Bell for HK $500. Amy keeps the offer open for five days. Thus, it is obligatory upon Bell to give his confirmation within such periods of five days in order to make a valid contract with Amy. But, there is no consideration that is moved from Bell to make sure that Amy does not sell the pone to any third party. Thus, after two days Amy sold her phone to Cyril for HK $600. Amy is not obligated to not to sell the phone to any other party before the expiry of five days as there is no consideration that is moved from Bell to Amy. Thus, Bell has no contractual relationship with Amy.
Conclusion
Amy is empowered to sell the phone to Cyril as there is no contract that is made amid Amy and Bell.
In the law of negligence, every defendant is legally obligated to carry out his actions and inactions in such a manner to make sure that no loss must be caused to the plaintiff and if any loss is caused because of the breach then the defendant is liable to make good the loss so incurred. The prime ingredient to prove any defendant negligent is analysed in (Donoghue v Stevenson , 1932): (Mau, Tort Law in Hong Kong: An Introductory Guide, 2010)
However, the defendant can rely on the defence of contributory negligence and can prove that the loss caused to the plaintiff is also because of the negligence of the plaintiff and thus, the liability of the defendant should be reduced proportionately.
Roger is employed by the Beautiful Flower Company as a driver for 5 years. The Company has received orders for the valentine day. Roger was delivering the flowers using the company van. Now, Roger was driving very fast to meet the orders. Roger can be held liable to be negligent if the duty of care imposed upon Roger is not met by him causing harm to his neighbours.
Roger is under duty of care to make sure that he must drive in such a manner so that no person with whom he is sharing proximate relationship should be suffered by him. If any injury is caused by Roger to his neighbour then, he must be held liable for the injuries so caused.
As per (Donoghue v Stevenson , 1932), the duty is imposed upon Roger as he is driving the van on the road and he shares proximate relationship with the passengers and the other drivers on road. The duty of care exists as the passengers and the other drivers are in proximate relationship with him and any acts by Roger will bring an impact upon them. Also, the duty of care is only against those passengers and the drivers who he can reasonably foresee.
It is now important to understand that against whom the duty of care exists.
Now, it is settled that Roger is obligated to comply with his duty of care against Sam, Betty and Paul
Roger was moving very fast and he went through the set of lights which turned red. Being the driver he must stop at the red light, but, by not doing so, he is considered to be in violation of hid duty if care. Since Roger is in breach, he is liable against those plaintiff who suffers injuries because of the breach.
Roger has violated his duty by driving very fast and breaking the red lights. Now,
It is now important to understand whether the company is held to be liable under the law of negligence.
The company has hired Roger as its driver and thus they must make sure that no acts must be carried on by Roger who results in causing any injuries to any person with whom he shares proximate relay upon. However, the truck that is provided to Roger by the company has defective brakes and Judy (the manager) has told Roger that the brakes will be fixed after the Valentine’s Day and that he must drive carefully.
The duty of care that is imposed upon Judy that the truck that must be provided to Roger must be fit for use is not met considering the fact that she shares a relationship of proximity with Roger. This duty is not by Judy as she provided a defective truck to Roger to carry out his duties.
Because of the breach, Roger was not able to control the truck and met with accident. The loss is because of the breach and is not remote.
Thus, the company is held to be negligent in its actions.
However, the company can rely on the defence of contributory negligence as Roger is aware that the truck is defective still, he choose to drive the same and has contributed to the loss that is suffered because of the accident.
Conclusion
Thus Roger is negligent towards Sam, Betty and Paul. The company is also negligent towards Roger by provided defective truck but can rely on contributory negligence.
Anns v Merton London Borough Council (1977).
Carlill v Carbolic Smoke Ball Company (1892).
Chui, C., & Roebuck, D. (1991). Hong Kong Contracts: Autonomy and Creativity. Hong Kong University Press.
Donoghue v Stevenson (1932).
Felthouse v Bindley (1862).
Fisher, M., & Greenwood, D. (2011). Contract Law in Hong Kong. HongKong: Hong Kong University Press.
Mau, S. (2010). Contract Law in Hong Kong : Introductory Guide: An Introductory Guide. Hong Kong University Press.
Mau, S. (2010). Tort Law in Hong Kong: An Introductory Guide. Hong Kong University Press.
Murphy v Brentwood District Council (1991).
Partridge v Crittenden [ (1968).
Pharmaceutical Society of Great Britain v Boots Cash Chemists (1953).
Re Polemis & Furness, Withy & Co Ltd (1921).
Roe v Minister of Health (1954).
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