Describe about the Contract Law for Law of Tort?
There shall be two types of contracts that are to be constructed in relation to your business. For the purpose of making a legal relationship by way of a contract with the suppliers of meat and vegetables, a contract for distance selling is required to be formulated among you and the supplier. If the supplier of meats and vegetables is the same person then one contract would be sufficient but if the suppliers are more than one then for each of the supplier a separate contract have to be constructed.
In this kind of contracts the parties to the contract by way of certain negotiations formulates the terms and conditions of the concern copy of contract. In this contract all the relevant terms and conditions relating to the goods that are to be supplied, the tenure of the contract, the time limitation regarding the supply of the goods, price of the goods and other relevant factors have to be clearly mentioned. If both the parties to the contract agree then they may introduce a specific term into the contract relating to restricting the liabilities of the concern parties in case of happening of any event that is inconsistent with the terms of the contract.
The second type of contract shall be made among the family members with whom the business has been started. This form of contract is known as partnership agreement. In this contract all the terms and conditions relating to the introduction of capital, profit or loss sharing, responsibilities of the partners and other relevant factors relating to the administration of the business shall be clearly mentioned.
For the purpose of formation of a valid contract there are certain essential elements which are required to be fulfilled. These essential elements are;
Offer and acceptance: For the purpose of construction of a valid contract one party have to make an offer to the other party of the contract and if the other party accepts such offer then the contract begins. This is the most fundamental element in valid contract. The offer and acceptance have to be made with the free consent of both the parties to the contract (Carlill v Carbolic Smoke Ball Co,).
Legal relationship: In a valid contract it is necessary that the parties to the contract are intended to create a legal relationship among them by way of formulating the contract. Any contract without legal relation among the parties is void ab initio (Williams v Roffey Bros, [1990]).
iii. Consideration: At the time of constructing a valid contract there must be a term relating to the consideration. It is a promise made by the parties to the contract to do any act or to abstain from doing any act in accordance with the terms of the contract. In other word consideration is something that one party receives against the performance of the contract (Balfour v Balfour, [1919]).
Competency: The parties to the contract must have attained the age of maturity and they are of sound mind.
Privity of contract: Ina contract the parties must have the right to sue each other in case of a breach but any third party cannot do so.
In a restaurant, most of the contract forms with the customers along with the restaurant authority. Generally, with the customers face to face contracts are formed. It is not possible that the restaurant authority will make a written contract with all the customers coming for having food. This will not only makes the customers feel irritated but will also create hazard for the restaurant administration. But for those customers who are making the order of food without coming into that restaurant, face to face contract is not possible, in that case distance selling contract shall be applicable (Cooke, 2007).
The impact of the contract formed among the restaurant authority and the meat and vegetable seller is that the contract should be a written one and the elements of the contract should be made with the free consent of the both the parties. For direct purchase of meat and vegetable from market there is no requirement to construct any written contract but a bulk order or bulk purchase the written form of contract provides more stability and confidence to the parties to the contract and it is also easy to have the legal enforceability. For the purpose of hire and laundering of table linen it is not necessary that the restaurant authority have to make a written agreement with the laundry man but there is no such limitation to that affect. If it is in written form then the chances for ambiguity and confliction gets reduced (Davidson, 2006).
In every contract there are several mentioned terms and conditions, the clearly written terms in the contract are the express terms. But there are some terms of contract which are not expressly mentioned in the context of the contract, these are the implied terms. Expressed terms are generally considered as the conditions of the contract, if either of the party breach any of the condition of the contract then the other party may terminate the contract. Implied terms are considered as the warranty, if any of the party to the contract makes any breach in relation to any warranty of the contract then the other party can claim damages. For instance, if you would like to buy kitchen appliances then you have to pay the price of the appliances it is an expressed term. In that particular price you are entitled to get good quality products that is the implied term of the contract (Elliott and Quinn, 2007).
2:
a) For a restaurant it is most important that the raw food materials are delivered on good and fresh condition in proper time. In this contract all of these mentioned terms are very important for the restaurant owners, as breach of either of these terms may cause huge loss to the business. If in a urgent situation the supplier send the foods at around 6 hours late without any justified cause or the food materials delivered are not in a good condition then the other party would not be able to use such goods for the purpose of his business and that will not only cause monetary loss to the other party but it will also cause damage to the good will of the business. Hence, under this particular scenario Mr. Corelli is entitled to claim compensation along with the amount of loss suffered, from the supplier. In the case of Wood v. Lucy, Lady Duff-Gordon, the court held that in case of any breach of any condition of a contract the aggrieved party is entitled to get compensation along with the amount of loss. But if the goods delivered is not securely packaged, then it is the violation of the contractual right of the other party then that party is entitled to get compensation from the supplier. In the case of Hadley v Baxendale, the court of law held that if in a contract any of the conditions is breached by either party then the other party is entitled to receive damages from the party who has breached such condition, as it is the violation of the contractual right though it may not cause any loss to that party who’s right has been infringed (George et al., 2015).
b) If a new term is introduced like ‘payment shall be made only after the accomplishment of the terms relating to the delivery of goods, quality of goods and packaging of goods’. Then it will signify that there shall be no liability for payment from Corelli against the goods if any of the terms before mentioned is violated by the supplier (Turner, 2006). But if the supplier made compliance of all the conditions then Corelli is liable to pay the amount of payment of the goods supplied. This term expressly mentioned about the nonpayment from Corelli unless the goods are delivered accordingly but it implies the right of the supplier to get the amount after accomplishment of the previous conditions. In the case of Parsons (Livestock) Ltd v Uttley Ingham & Co Ltd, the court held that performance of the duties of one party to the contract puts liability upon the other party to discharge the liabilities in accordance to the terms of the contract (Gerven, Lever and Larouche, 2000).
c) In this regard Mr. Corelli does not have to make separate contracts with each customer. There is standard form of contracts, where a contract is formulated by the leading party that is the restaurant owners and this contract is made for all the customers in general (Stone, 2003). In this case customers are not entitled to do any negotiation with the terms of the contract, they are at an option to either get or leave it. In the case of Steven v. Fidelity & Casualty Co, the court held that the weaker party to the contract shall not have any bargaining power in relation to the terms of the contract but there must not be any unreasonable term into that contract (Giliker and Beckwith, 2008).
Mr. Corelli may have the advantage to construct the terms of the contract in accordance to the benefits of the business but any of such terms must not be unreasonable as to its nature and it have to fair for all the customers.
d) An exclusion clause may also be introduces in the standard form of contracts. Exclusion clause eliminates the leading party to the contract from any specified liability. For example if any term introduced like ‘beware of your articles and the restaurant administration is not liable for any loss’. This term will exclude the liability of the restaurant administration for any loss of articles of the customers in the restaurant premises. In the case of Klocek v. Gateway, Inc, the court of law held that the weaker party to a standard form of contract is not entitled to make any negotiation but the terms of the contract have to be reasonable. All the terms in relation to a standard form of contract are to be general for all and the term must be specified in a conspicuous place where the business is conducted or where the customers are used to come for making the contract with implications. By this kind of clauses the liability of the parties is excluded to a certain extent (Grubb, 2002).
Contractual liability is a kind of liability that arises from a contractual obligation. In other words due to the terms of a contract the parties to the contract has to discharge some liabilities accordingly, these liabilities are known as contractual liabilities (Rutgers, 2008). Whereas tortuous arise from any wrongful act done by any person. If any person does any wrongful act and by that act any right of any other person is infringed then the wrongdoer is at a liability to restore the rights or pay compensation, this is known as tortuous liability. For a contractual liability the concern person has enter into a valid contract but for a tortuous liability neither of the person has to enter into a contract. Tortuous liability arises for any civil wrong that is tort. Here in this case, your employer is liable under the tortuous liability for you. And the property company shall be liable under contractual liability to the McAllen Company but it will depend upon the nature of the contract (Grundmann, 2011).
In case of any loss or injury occurs to any person due to the negligence of any other person then the person who has committed the act of negligence shall be liable for payment of damages. If any occupier of a property negligently abstained from doing any act that the occupier ought to do and by virtue of that negligence, if any person suffers from any loss or injury then the occupier shall be liable for that loss or injury (Oliphant and Bagshaw, 2007). It is the duty of the occupier to take reasonable care of the property occupied and for any major alteration the occupier should approach the owner of the property. In the case of Robert Addie & Sons (Colliery) Ltd v. Dumbreck, the court held that it is the duty of the occupier to take reasonable care of the property and if there is any loss suffered by other person due to the negligence of the occupier then the occupier of the property shall be liable to pay damages to the person who has suffered from such loss or injury. In the famous English case of Donoghue v. Stevenson, the court of law has elaborately described the scope of the act of negligence. In this regard the court of law held that for nay act of negligence the wrong doer is bound to compensate the person who has been suffered due to such an act of negligence. In this respect causing of actual loss or damage is not necessary, violation of the right of any person is sufficient for payment of damages (Koziol, Schulze and Antoniolli, 2008).
In the case of Fletcher v Rylands, the House of Lords admitted that the English common law is very much applicable upon the wrongs happened due to an act of negligence.
If in the course of the employment, any employee suffers from any loss or injury then the employer is liable to pay compensation to that employee, though the loss has been caused due to the negligent or wrongful act of any other person then also the employer cannot escape from his liability, this is known as vicarious liability. The case of Lister v Hesley Hall Ltd, is one of the leading precedent of the laws relating to the vicarious liability. In this famous case the court of law held that the employer is liable to pay damages to the employee who has suffered from injury in the course of the employment, in spite of the fact that the injury may happen by the wrong act of any other person, but it does not reduce the liability of the employer towards the employee (Lahe, 2011).
4:
a) Here in this particular scenario, the major issue is not that whether Marry is entitled to get damages or not. The main factor is from whom Marry will claim damages. Marry can claim damages from the insurance company of the cars in the accident. Due to the act of negligence an accident happens but most of the time it happens due to the accident of both parties. But here Marry was not directly injured by the touch of the cars, beside that is had an intangible injury. Hence she is entitled to get compensation as she has suffered from injury due to the accident. It will not fall under the purview of law of tort but there are statutory provisions in this respect like The Road Traffic Act 1988, The Insurance Act etc are the relevant Acts in this kind of cases. The rule of comparative negligence is also not coming here as Marry was quite far away from the accident spot (McKendrick, 2007).
In the case of Cochrane v. Linda Manor, the court of law observed that if there is any accident happens it happens due to the negligence of both the parties, more or less both of them are responsible for the accident, so the party who has suffered more is entitled to get damages but the amount of damages shall be reduced by taking into consideration of his part of care that he would not have properly taken. But if the aggrieved person has taken all the due care then the other party is liable to pay damages for the loss suffered by the aggrieved party (Merrill, 2011).
In the case of Lai Chau v. Southstar Equity Limited Co. and Brookside Properties Inc, the court of law has observed that in case of an act of accident the aggrieved party is entitled to get damages but it is not absolute, as the reason of accident is that both the parties has made some mistakes and by virtue of that accident has occurred. Hence though the aggrieved party will get the damages but the amount of damages will be reduced but if it is noticed that the aggrieved party has taken due care then the aggrieved party shall be entitled to get the full amount of damages (Oliphant, 2012).
b) Under this particular scenario, the rule of vicarious liability does not come into action. The rule of vicarious liability applies when the loss or injury sufferer has suffered the loss or injury by doing any act in the course of the employment, then only the employer is liable to pay compensation to the employee. But here in this case, Marry has not suffered the loss in the course of her employment. She was not doing any job by virtue of her employment as she was standing in the bus stop; she was also not within the premises of her employee. Hence, her employer is not liable to pay any damages to Marry. In the case of Yewens v Noakes, the court of law observed that the employer is liable under the rule of vicarious liability, if the employee has suffered from any loss or injury in the course of the employment or by doing any act in relation to discharging any of the duties of employment. Otherwise no employer shall be liable under the rule of vicarious liability (O’Sullivan and Hilliard, 2004). Hence, with the reference of this case, though Marry has suffered from an injury but that injury has not occurred in the course of the employment, so Marry is not entitled to get any damages from her employer (Meyer, 2010).
References
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Carlill v Carbolic Smoke Ball Co [2015].
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Davidson, D. (2006). Dark tort. New York: William Morrow.
Elliott, C. and Quinn, F. (2007). Contract law. Harlow: Pearson Longman.
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Koziol, H., Schulze, R. and Antoniolli, L. (2008). Tort law of the European Community. Wien: Springer.
Lahe, J. (2011). Punitive Damages in Estonian Tort Law?. Journal of European Tort Law, 2(3).
McKendrick, E. (2007). Contract law. Basingstoke: Palgrave Macmillan.
Merrill, T. (2011). Is Public Nuisance a Tort?. Journal of Tort Law, 4(2).
Meyer, L. (2010). Non-performance and remedies under international contract law principles and Indian contract law. Frankfurt am Main: P. Lang.
Oliphant, K. (2012). Cultures of Tort Law in Europe. Journal of European Tort Law, 3(2).
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