Aspects of Contract & Negligence For Business: Assessment Result: Merit

HND
Assessment On:
Unit: 5
Aspects of Contract & Negligence for

Business
Assessment For: LO 1,2,3 & 4
Assessment Result: Merit
ACKNOWLEDGEMENT
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Contents
Introduction:............................................................................................................... 1
Contract:.................................................................................................................... 1
Offer and Acceptance:............................................................................................. 2
Intention to create Legal Relationship:....................................................................3
Lawful Consideration:.............................................................................................. 4
Capacity of Parties:................................................................................................. 4
Free Consent:.......................................................................................................... 5
Legality of the Object:............................................................................................. 5
Possibility of Performance:...................................................................................... 6
Void Agreement:...................................................................................................... 6
Writing, Registration and Legal Formalities:............................................................7
Types of Contract:....................................................................................................... 8
Bilateral Contracts:.................................................................................................. 8
Unilateral Contracts:............................................................................................... 8
Express Contracts:.................................................................................................. 9
Implied Contracts:................................................................................................... 9
Quasi Contract......................................................................................................... 9
Executory Contract:............................................................................................... 10
Executed Contract:................................................................................................ 10
Valid, Unenforceable, Voidable, Void Agreements and illegal:...............................10
Terms of Contract:.................................................................................................... 11
Conditions:............................................................................................................ 11
Guarantees:........................................................................................................... 11
Warranties............................................................................................................. 11
Innominate Terms:................................................................................................. 11
Application of the Element and Terms of a Contract:................................................12
Case Scenario:....................................................................................................... 12
What is Tort?............................................................................................................. 14
Tortious Liability:.................................................................................................... 15
Contractual Liability:.............................................................................................. 15
Contrast between Tortious Liability and contractual Liability:...................................16
Nature of Liability on Negligence:............................................................................. 17
Defenses to Negligence:........................................................................................ 18
Volenti Non fit Injuria:............................................................................................ 18

Duty of Care:............................................................................................................ 18
Res ipsa loquitur:................................................................................................... 19
Breach of the Duty of Care:...................................................................................... 20
Probability of Injury:............................................................................................... 21
Seriousness of the Risk:........................................................................................ 21
Common Practice:................................................................................................. 21
Causation:................................................................................................................ 22
But for Test:........................................................................................................... 22
Intervening Events:............................................................................................... 22
A Business Can be Vicariously Liable:.......................................................................23
Vicarious Liability:.................................................................................................. 23
Elements of the Tort of Negligence and Defenses in different Business Situations:. 25
Application of Element of Vicarious Liability in given Business Situation:................27
Case Scenario:....................................................................................................... 27
References:............................................................................................................... 29
Introduction:
The inspiration driving this report is to perceive the parts of Contract and
Negligence for Business. Shortly days, the business environment is stacked
with agreement in the middle of associations and individuals. Formed
contracts give individuals and associations a definitive record communicating
the longings of both social events and how opposing circumstances will be
dead set. Contracts similarly are authentically enforceable in a court of law.
Contracts consistently identify with a contraption that associations use to
shield their benefits. A contract can have a considerable measure of
components that makes it a lawful legitimate contract/agreement. Yet there
are likewise many of terms that can make a contract appear to be void
where, it can accept something or discredit too relying upon the terms and
statements set in a contract and the parties marking them as assent of their
persistent concession to the aggregate contract.
Contract:
A contract is an understanding between two or more parties or business that
is legitimately tying. Albeit numerous contracts are in writing, most of the
contracts are not needed to be written down; given the fundamental
elements of a legitimate gorging agreement are introduce, an contract can
start to be in light of just a discussion between parties. All agreements are
not contracts but rather all agreement are understandings. Contract law
manages enforceable guarantees between parties including present or future
yet not past. Contract is the understanding between two or more parties.
Contracts may be expressed or implied. In like common law ward the three
fundamental components of a legitimate contract are agreement (offer &
acceptance), consideration and intention to create legal relationship. The
other elements of contract are capacity, legal object and genuine consent.
There is no need of thought if a contract is made by deed. It is anything but
difficult to imagine a picture where a proposition to exchange unscrupulously
Aspects of Contract and Negligence for Business
prompts a contract debate. So English law searches for target test of

agreement,
endeavours
to
take
gander
at
the
behaviour
and
correspondence between the parties included. (Rush & Ottley 2006)

According to Section 2(h) of the Indian Contract Act: An agreement
enforceable by law is a contract
A contract is an agreement enforceable at law made between two or more
persons, by which rights are acquired by one or more to acts or forbearances
on the part of the other or others Sir William Anson.
According to Section 2(e) of the Indian Contract Act: Every promise and
every set of promises forming the consideration for each other is an
agreement.
Offer and Acceptance:
When one person signifies to another his willingness to do or to abstain from
doing anything, with a view to obtaining the assent of that other to such act
or abstinence, he is said to make a proposal.- Section 2(a) .A proposal is
known as Offer. There is no such rules that the offer has to be made in any
specific form. It is essential to have the capacity to distinguish precisely
when an individual has really made an offer, on the grounds that, if an offer
is accepted there will more likely than not be a legally tying contract. In
choosing whether an offer has been made, the courts embrace a objective
approach. As such, the inquiry is not whether both of the parties really
planned to make an offer, however what a sensible spectator would have
thought by that was said and done. An offer must be imparted to the
individual to whom the offer is made (the offeree) if the offer is to be
effective. In the event that the individual acknowledges an offer without
learning of the conditions, the offeror cannot assert satisfaction of the
condition. An offer must be well communicated to a definite person or party
so they can accept or reject. (Mckendrick, 2007)
In Taylor v Laird (1856), the captain of a ship resigned during a voyage.

The former captain provided navigation services for the remainder of the
voyage even though this had not been requested by the owner of the
ship. The former captain later claimed in the courts for proper
remuneration for his services from the owner. The captain had not
communicated his offer to provide such services. As such, the owner did
not have the opportunity to refuse or accept the offer, as he had no
knowledge of its existence. There was no binding contract.
An offer can be terminated if there is failure in any condition or death. For
example, a partnership company if a partner has died the company is no
longer validate as a partnership entity so now the others will have to form a
new partnership company. Section 2(b) of the Contract Act 1872 indicate
that- When a person to whom the proposal or offer is made signifies hiss
assent thereto, the offer is said to be accepted.
Notwithstanding, it is said that an acceptance ought to be made the way
offer was being offered or if the offeree has made the acceptance necessity
in certain procedure. For example, if the offeree has put the terms that an
offer is just accepted in the event that it is marked in a composed contract
than any acknowledgement through whatever other structure won't be taken
as the acceptance for the offer set. For example: X offered a mobile phone
to Y at 6999 Tk. Y replied accepting and enclosing, 5000 Tk., and
promising to pay the balance by monthly instalment of 150 Tk. Here X and
y agrees this condition.
Offeror offered and offeree accept it. (Sen &
Mitra, 2012)
Intention to create Legal Relationship:
An agreement came to between an offeror and an offeree will be a lawfully
tying contract just if the parties proposed that they ought to be legally
bound. The parties' aim to be bound can be particularly expressed or be
inferred from their activities. Where intention is explicitly expressed, the
courts would not unclean generally unless there is solid confirmation to
demonstrate the contrary. In social and household agreements in the middle

of family and companions, there is an assumption that these understandings
are not intended to be legitimately tying unless the contrary can be proven.
For example if A can have an agreement to meet a friend B at a
restaurant, if B fail to come and meet A , it would not be fall under braking
contract because as it is not a legal duty so if B is busy he may refuse the
A. See case:In Balfour v Balfour (1919), the defendant employed in Ceylon was
paying his paying for his wife in UK for her expenses as she couldnt
travel to Ceylon due to health issues but the marriage ended and the
husband stopped the monthly allowance. The monthly allowance was an
informal agreement those not crating any legal intentions.
At the same time, where the agreements between any relatives or
companions identify with property matters the court will however credit a
proposition to make lawful relations. It is generally burden of proof a party is
trying to escape obligation will attempt to make no lawful relations.
Lawful Consideration:
The agreement must be consideration by thought on both sides. Every
parties to the agreement must give or guarantee something and get
something or a guarantee consequently. Besides, the thought must be real
and lawful. (Sen & Mitra, 2012)
In Thomas v Thomas (1842), by his will the claimants husband
expressed the wish that the widow should have the use of his house
during her life. The defendants, his executors, allowed the widow to
occupy the house in accordance with her husbands wishes and in return
for her undertaking to pay a rent of 1 per annum. They latter said that
their promise to let her occupy the house was not supported by
consideration. Compliance with husbands wishes was not adequate
consideration as zero economic value attached to it but the nominal rent

was sufficient consideration.
Capacity of Parties:
Capacity of the Parties Involved- Each party in the agreement must be fit for
including into the agreement. Infants & mentally issue persons are not
lawfully permitted to participate in contract. While creating a legal relation
both parties should understand all the terms and conditions to foresee their
capacities in present times and in future times. Both parties should only
make a binding contract when it is in their capacity to fulfil the performance
required. The Bangladesh Contract Act 1872, Section 11 refers to Every
person is competent to contract who is of the age of majority according to
the law to which he is subject, and who is of sound mind, and is not
disqualified from contracting by any law to which he is subject. Along these
lines, after dissecting the section then three conditions that persuade three
conditions to be satisfied by an individual to be able to entomb into a
contract that the individual. For example, According to Majority Act, 1875,
Section 3, In England a person becomes major on attaining 18 years in all
cases. (Ekramul Haque, 2012). The Sale of Goods Act 1979 s.3, reenacting the Act of 1893, provides "Where necessaries are sold and
delivered to an infant (or minor)... he must pay a reasonable price therefor.
Necessaries' in this section means goods suitable to the condition of life of
such infant (or minor)... and to his actual requirements at the time of sale
and delivery. The Sale of Goods Act 1979 s.3 makes the same provision for
persons who are incompetent to contract by reason of mental incapacity as
for minors.
Free Consent:
In view of the maxim of Randy E. Barnett (2003), each party in the
contract ought to come willingly. Nobody can force other to participate in the
contract. In the event that any party does as such, then it will not be
considered as substantial contract. Such as minors, people with instable
mentality, people in intoxicated stated or with a disability cannot form a legal

binding or any kind of legal contract and if formed will than get terminated if
verified in a court. According to Section 14, Consent is said to be free when it
is not caused. To make a contract valid not only consent is necessary but the
consent should also be free consent is free when it is not caused. Consent
means the parties agreed upon the something consent is said to be free
when it is not caused by Coercion, Fraud, Undue influence, Misrepresentation
and Mistake. (Ekramul Haque, 2012)
In Bell v Lever bros [1932] AC 161 House of Lords: Lever bros appointed
Mr. Bell and Mr. Snelling (the two defendants) as Chairman and Vice
Chairman to run a subsidiary company called Niger. Under the contract of
employment, the appointments were to run 5 years. However, due to poor
performance of the Niger Company, Lever bros decided to merge Niger
with another subsidiary and make the defendants redundant. Lever bros
drew up a contract providing for substantial payments to each if they
agreed to terminate their employment. The defendants accepted the offer
and received the payments. However, it later transpired that the two
defendants had committed serious breaches of duty, which would have
entitled Lever bros to end their employment without notice and without
compensation. Lever bros brought an action based on mistake in that
they entered the agreement thinking they were under a legal obligation
to pay compensation.
Legality of the Object:
A contract, which will not be enforced by the law of court if the object or the
consideration is unlawful. The object of an agreement must be valid. Object
has nothing to do with consideration. It means the purpose or design of the
contract. The object is said to be unlawful if it is forbidden by law, defeats
the provision of any law, fraudulent, involves an injury to the person or
property of any other and the court regards it as immoral or opposed to
public policy. (Sen & Mitra, 2012)
For example, shipping contract for trafficking illegal drugs is not a legal contract.
In Napier v. National Business Agency Ltd [1951] 2 All ER 264 CA: The
plaintiff sought to sue for wrongful dismissal on a contract of employment
under which he was paid 13 salary per week and 6 "expenses", when
his expenses could never exceed 1 per week. Held: The parties had
made this bargain knowing well that the expenses figure was a sham
figure and that by making the agreement in that form they were
intending to defeat the proper claims of the Revenue. The contract was
therefore against public policy and unenforceable.
Possibility of Performance:
If the act is impossible in itself, physically or legally, if cannot be enforced at
law. For example, Mr. A agrees with B to discover treasure by magic. Such
Agreements
is
not
enforceable.
If the act is impossible in itself physically or legally, if can not be enforced by

law. The agreement must be able to being performances. If the act is cannot
be enforced at law. Performance of an existing obligation imposed by statute
is no consideration for a promise of reward
In Collins v Godefroy (1831), the claimant had been subpoenaed to give
evidence on behalf of the defendant in another case. He alleged that
defendant had promised to pay him six guineas for appearing. There was
no consideration for this promise.
Void Agreement:
An agreement gets to be void by stopping its enforceability by law. Since, law
says that it needs to stop its enforceability and it will be void just when it will
stop that enforceability. Subsequently, the precondition of a void contract is
the presence of a legitimate contract and a while later some way or another
its enforceability will be stopped and afterward it will be dealt with as a void
contract. There may have different reason for stopping the enforceability of
law. The contract Act, 1872, Section 2(g) says that- An agreement not
enforceable by law is said to be a void. For example,
In Cheese v Thomas (1993), The Court of Appeal dismissed an appeal by
the plaintiff, Charles William Cheese, against the decision of Judge
Michael Oppenheimer, sitting in Uxbridge County Court on 16 February
1993, that a transaction whereby Mr. Cheese contributed pounds 43,000
towards the pounds 83,000 purchase price of a house, which his greatnephew, the defendant Aubrey Thomas, had bought in 1990, on the
agreement that Mr Cheese should occupy the house for life and it should
then pass to Mr. Thomas, should be set aside on the ground of undue
influence, but that both parties should bear the loss in the value of the
house in proportion to their contribution to the original price. The house
was sold in 1993 for only pounds 55,400.
The court declared that the court must look at all circumstances to do what
was fair and just.
Writing, Registration and Legal Formalities:
A contract can be oral or writing but there are some particular type of
contract that required by law to be written. It supposed to comply with the
necessary formalities set by domestic lawful rules and regulations. In India
According to Registration Act, Section 17, Registration is compulsory in case
of documents coming within the memorandum. All the elements mentioned above
must be in order to make a valid contract. If any one of them is absent, the agreement does not
become a contract. (Sen & Mitra, 2012) Likewise;
In Carlill v carbolic smoke ball co (1893), The Carbolic Smoke Ball Co produced
the 'Carbolic Smoke Ball' designed to prevent users contracting influenza
or similar illnesses. The company's advertised (in part) that: 100 pounds
reward will be paid by the Carbolic Smoke Ball Company to any person
who contracts the increasing epidemic influenza, colds, or any disease
caused by taking cold, after having used the ball three times daily for two
weeks according to the printed directions supplied with each ball. 1,000
pounds is deposited with the Alliance Bank, Regent Street, showing our
sincerity in the matter. After seeing this advertisement, Mrs. Carlill
bought one of the balls and used it as directed. She subsequently caught
the flu and claimed the reward. The company refused to pay. Mrs. Carlill
sued for the reward.
As per Scott Fruehwald (2009), Essential element make a contract
substantial & without these elements, no one should not anticipate that a
contract to be valid and enforced under law later on. In business, individuals
need to connect with distinctive sort of contract and some of the time
diverse sort of issue may emerge regarding usage. The exercises of one
party, without the plan of another party, may bring loss or may bring about
harm for other. At some point, rupture of contract by one party may bring
about loss for another party. In the event that any sort of loss cause to a
party because of any sort of movement by another party, the party bearing
the loss may go to court and claim for the harms been reason to him. A party
can go to court just when it is a legitimate contract. In the event that it is
invalid contract, around then the no party can go to court for the loss cause
to him. A contract is considered as invalid just when it absences of any of the
fundamental elements needed for the arrangement of a valid contract. This
is the reason, it is important to verify that each contract has all the essential
elements to make it valid and all party ought to be agreed to all the
conditions made in the contract.
Types of Contract:
Contract can be classified in distinctive classifications & the impact of
diverse sorts of contract may additionally differ starting with one then onto
the next. (Feinman et al. 2010).
Bilateral Contracts:
When both sides of the contract concurred on to do or to make something is
called bilateral contract, where both sides include consented to make or keep
a specific guarantee. For example, Lisa will sell her iPhone 5s at 500 and Marry will
accept is by agreeing to pay 500 for iPhone 5s.
Unilateral Contracts:
In addition, when one party of a contract make a guarantee in a manner that
the other party to whom guarantee is made can acknowledge the guarantee
just when he does something is refers to Unilateral Contracts.
InWilliams v Carwardine (1833): a reward was offered to bring criminal to
book. The claimant, an accomplice in the crime, supplied the information,
with knowledge of the reward. As the information was given with
knowledge, the acceptance was related to the offer.
Express Contracts:
When two parties in a contract express all the terms & conditions that are
pertinent to the contract, to one another is called express contract. The
majority of the contract happened in business are express contracts.
In Nicolene v Simmonds (1953): the claimant offered to buy steel bars from the defendant. A
contract was made by correspondence, in which the defendant provided that usual
conditions of acceptance apply. The defendant failed to deliver the goods and argued that
there had been no explicit agreement. The contract was complete without these words; there
were no usual conditions of acceptance.
Implied Contracts:
At the point when the work, conduct, exercises & conduct of the parties of an
agreement show that they have gone into the contract, then it is called
Implied Contracts. Terms may be implied by statue, by courts, or by custom,
such as the Sale of Goods Act.
10
In Hutton v Warren (1836): the defendant landlord gave claimant, a

tenant farmer, and notice to quite the farm. He insisted that the tenant
should continue to farm the land during the period of notice. The tenant
asked for a fair allowance for seeds and labor from which he received no
benefit because he was to leave the farm. By custom he was bound to
farm the land until the end of the tenancy; but he was also entitled to a
fair allowance for seeds and labour incurred.
Quasi Contract
It is based on the principle of unjust enrichment; it covers situations where
standard contract remedies are unavailable as there is no contractual
relationship between the parties.
Lord Wright stated in Fibrosa Spolka Akcynia v Fairbairn Lawson Combe
Barbour (1943): it is clear that any civilised system of law is bound to
provide remedies for what has been call unjust enrichment or unjust
benefit, that is, to prevent a man from retaining the money of, or some
benefit derived from, another, which it is against his conscience to keep.
Executory Contract:
When one or different parties or all the parties in a contract do not perform
the commitment they should perform, then it is called executory contract.
Executed Contract:
At the point when all gatherings included in an agreement perform all the
exercises & commitment they should perform then it is called executed
contract.
Valid, Unenforceable, Voidable, Void Agreements and illegal:
In view of the platitude of P.S. Atiyah (1979), the contract that satisfies all
the prerequisites of law so, it will be less demanding for the court to
authorize is called valid agreement. At the point when all the parties in a
contract chose to make a valid bargain however the affirmation of some law
by the court make impediment to drive it is known as unenforceable
11
agreement. At the point when the principles of law permit any of the parties
of the agreement to obliterate, the understanding made is called voidable
contract. At the point when no parties of the contract can't legally authorize
the agreement, which can be a result of different reason like illegal deal or
are not legally capable of making a contract, made then it is called void
agreement. On the other hand, if a contract made based on any kind of
illegal action or goods that contract can be a contract lawfully.
An invalid contract may be a void contract, a voidable contract or
unenforceable contract. Void contracts are those that neglect to meet
fundamental criteria, and are in this manner not contracts by any means. In
the meantime, a voidable contract is an agreement that one party may
evade, can end at his alternative; so the agreement is legitimate unless and
until it is evaded. Unenforceable contract are those that meet the essential
necessities yet neglect to satisfy some other law. Three sorts of contractual
terms have regularizing impact and significance with respect to one
another's to be specific; Conditions, Warranties and Innominate terms. (BPP,
2004, p.39)
Terms of Contract:
Conditions:
These are the most significance terms of contract and have serious results if
breached. An honest party can renounce an agreement and case harms for
break of such terms. It is not important to stamp such term as conditions in
the contract and court will consider the aims of the parties to focus such
terms. For example, Schuler AG v Wickman Machine Tools Sales Ltd. (1974).
Such terms can likewise be focus by statutory procurements and by the case
laws, ordinarily standard terms in business contracts according to Offer of
Goods Act 1979.
12
Guarantees:
It is of lesser significance than conditions and breach of such terms qualified
the guiltless for case harms yet not to revoke the contract.
Warranties
Warranties are subsidiary terms with main terms, which are less important if
breached do not result in termination of a contract but may sure for some
damages.
In Bettini v Gyne (1876), a singer was engaged to sing for a whole
season. He took part only in few rehearsals. The management had
engaged another singer to replace him. It was a subsidiary clause to the
main clause as it was warranty the management in not entitled to
discharge the contract but merely seek damages for not attending all
rehearsals.
Innominate Terms:
It can be either conditions or warranties and breach of them can be not
serious or trivial depending on the particular fact and conditions. Such terms
was initially developed in Hong Kong Fir Shipping Co. Ltd. v Kawasaki Ltd.
(1962). See likewise The Mihalis Angelos case, Bunge Corp. v Tradax Export
SA(1981) and The Naxos(1990). Ref. (Mckendrick, 2007)
In Hong Kong Fir Shipping v Kawasaki Kisen Kaisha [1962] 2 QB 26 Court
of Appeal, A ship was chartered to the defendants for a 2 year period. The
agreement included a term that the ship would be seaworthy throughout
the period of hire. The problems developed with the engine of the ship
and the engine crew were incompetent. Consequently, the ship was out of
service for a 5-week period and then a further 15-week period. The
defendants treated this as a breach of condition and ended the contract.
The claimants brought an action for wrongful repudiation arguing the
term relating to seaworthiness was not a condition of the contract.
13
Application of the Element and Terms of a Contract:

Case Scenario:
Mr. Ahmed wanted to buy a new space to expand his office. Mr. Ahmed was
looking for a space, which serve his expectation. Therefore, he searched for
it on local newspaper. Mr. Ahmed saw an advertisement on newspaper and
the following advertisement regarding commercial space was seemed fulfill
his needs. The advertisement was given by an agency named Fixture. The
advertisement showed that 1000 sqft. is only Tk. 200000. Mr. Ahmed was
interested and contacted with Fixture. Agency introduced owner Mr. Karim
with Mr. Ahmed and Mr. Ahmed visited the place. Mr. Ahmed liked the place
because it was in reasonable price and the place was friendly. They started
negotiated the price and Mr. Karim agreed to sell his shop to Mr. Ahmed in
190000 Tk.
Therefore, they have made a contract verbally. Now according to law they
made a contract because Mr. Karim offered to sell his space via
advertisement and Mr. Ahmed accepted it and agreed to buy after price
negotiation. Eventually they were in legal relationship. In this contract
there were some terms and condition likewise every year maintenance cost
of the office space should be paid by the buyer, seller guarantee that office
space has 24/7 security facility. Mr. Ahmed and Mr. Karim took further step to
make that contract more valid so they made a written contract, which is one
of the main element of a valid contract. In the meanwhile, Mr. Ahmed found
that Mr. Karim is under age, which is 18, According to Majority Act, 1875,
Section 3; A person becomes major on attaining 18 years in all cases. In
that case contract between Mr. Ahmed and Mr. Karim is in risk because one
of the main element capacity of parties is not fulfilling the minimum
requirement so that Mr. Ahmed decided to take counseling from a renown
Lawyers chamber name Rahmans Chamber and suggested to make a
nominee to someone who has legal age. Mr. Karims Brother, Mr. Aslam was
the nominee and the contract is made finally. The contract made in free
14
consent, nobody influenced both parties or forced them to do so. On the

other hand, Mr. Ahmed wanted to setup an office so there is no consideration
because the intention to buy that space for using legally. Here the element
legality of the object fulfilled. Mr. Ahmed found that there are pending
electricity bill of 6 months and the lift operate for 9 am to 7:30 pm, which
was not mentioned in the contract. So Mr. Ahmed contacted with Mr. Karim to
re-correct the contract where the contract was misrepresentation of
information. Mr. Ahmed bought that space for office so it had legal
consideration according to the courts of law. Therefore, from the above
hypothetical discussion Mr. Ahmed is in valid contract with Mr. Karim, which
have all elements for form a valid contract. From the above scenario, Mr.
Ahmed has made the contract with Mr. Karim there are some remedy if any
party breach the contract terms, condition, and it can be enforceable by
court of law. Most agreements is made some set of negotiations, possibly
taking place over an extended period. The final offer and acceptance may
involve little more than an offer to buy or sell a particular item for a specific
price. However, the contract will almost certainly contain more than a simple
promise to deliver goods in return for a promise to pay a particular sum of
money. However, all contract mostly like exchange of money or promise to
deliver something. A contract term will become a term of the contract and will, if
false, give rise to an effect for breach of contract, even if a party honestly and
reasonably believed it to be true. It is additionally essential to hold up under as a
top priority that if the parties finish up a written agreement, and on the substance
of it, the report has all the earmarks of being a complete record of what the parties
chose, the courts might be hesitant to hear evidence of statements made amid the
pre-contract negotiations. Therefore, the written document is vital.
In the event that the parties have not characterized their own guarantees as
being either "conditions" or "warranties" then the court of law will need
to do as such. The conventional approach has been ton evaluate the
significance of the term inside the general setting of the agreement keeping
in mind the end goal to construe the expectations of the parties as said in
15
Poussard v Spiers & Pond (1876) 1 QBD 351 and Bettini v Gye (1876) 1 QBD
183. On the off chance that the parties portrayed a specific term similar to a
"condition" or a 'warranty', this is a solid indication of their intention.
For Example: Stella buy a brand new television set from a shop. What are Stellas
rights if the shop give warrant or guarantee. Then
In the first case, the department store is in breach of contract as it has failed
to supply merchandise of quality full product, in spite of s.14(2) Sale of
Goods Act 1979. This statutory inferred term is marked as a condition
under s.14 (6) of the Act and accordingly Stella has the privilege to end the
agreement, and can ask compensation. This implies that she will have the
capacity to reject the machine, acquire a full refund and potentially claim
further damage if the defective machine has made her to suffer whatever
other misfortunes. Similarly According to the contract if the Mr. Ahmed
cannot get security facility 24/7 , thats means Mr. Karim breach the contract
and break the terms and denies to serve the condition. Then Mr. Ahmed can
go to court for justice.
This is more critical in business viewpoint since court of any nation does not
manage invalid contract. A contract is considered as invalid just when it
absences of any of the crucial component needed for the development of a
valid contract. The standard grew by state law needs to be taken after &
endeavors needs to be verified that carelessness is not event that is falling
beneath the standard set by settled law of the state. Contract terms and
element must be fulfilled by a contract if both parties want to it is
enforceable by court of laws.
What is Tort?
According to Salmond and Heuston, Tort is a civil wrong for which the
remedy is a common law action for unliquidated damages, and which is NOT
exclusively the breach of a contract, or, the breach of a trust, or, other
merely equitable obligation.
16
In 1065 England was conquered by Normans who were the French speaking
people of Normandy, a region of France. After Norman Conquest, French
became the spoken language in the Courts in England, thus many technical
terms in English law owe their origin to French, and Tort is one of them.
Limitation Act 1963 Sec 2 (m) defines Tort means a civil wrong which is
not exclusively a breach of contract or trust. This is quite similar to
Salmonds definition.
According to Pollock, the law of tort's in common wrongs is an aggregate
name for the tenets overseeing numerous types of obligation which, despite
the fact that their topic is wide and differed have specific expansive
components in like manner, are implemented by the same sort of legitimate
procedures that are liable to comparable exemptions.
There are two liability in Tort, likewise, Tortious Liability and Contractual
Liability.
Tortious Liability:
Civil tort liability includes a necessary lawful connection that emerges from
an unlawful demonstration bringing about partialities; a connection in which
the wrongdoer or someone else called to react has the commitment to repair
the preference. Civil tort liability arises as a common authorization, so it
considers the advantages of the individual in charge of the unlawful activity,
and because of the individual's demise, the remuneration commitment
should be exchanged to his/ her beneficiaries. According to article 1349
of the New Civil Code, (1) 'any person has the duty to follow the rules of
conduct, which the law or local custom requires, and shall not prejudice the
rights or legitimate interests of others through his / her actions or inactions.
Thus, the general obligation of any person to comply with the rules of
conduct, which the law or local custom requires, and not to prejudice the
rights or legitimate interests of others, through his / her actions or inactions,
is imperatively provided for'.
17
In spite of the fact that the key guideline of legal liability, as per which
everybody might respond in due order regarding his/ her own behavior. It is
substantial and appropriate in civil tort liability, due to the necessities of
social life; the pertinence of the civil tort liability has additionally been
reached out to different circumstances than the ones made by the activity.
Tortious liability arises from the breach of a duty primarily fixed by law; this
duty is towards persons generally and its breach is redressible by an action
for unliquidated damages.
('Juridica Series', Academica Science Journal.(2013). ISSN: 2285
8091.)
Contractual Liability:
Liability that one party assumes on behalf of another via a contract is called
contractual liability. An agreement is a lawfully enforceable assention
between two (or more) parties in which one party consents to give some
advantage, or to be put to some bother in return for a guarantee by the
other party. Contract law is that group of principles that represent
contractual understandings between persons or dealers. An agreement is
fundamentally an understanding between parties plotting their duties and
responsibilities to one another. Contract laws plot what a man can or cannot
exclude in an agreement, and what the cures are if a party breaches their
contractual duties. Contractual liability is fundamentally is the place when
one of the parties breach or break the terms of the contract either express
terms or implied terms. An agreement is endless supply of the two
gatherings. Just the gathering to the agreement will be contractually liable. A
breach of contract is an infringement of a right "in personam" which means
the right available against some determinate person or body. In personam is
a Latin phrase meaning "directed toward a particular person". In a lawsuit in
which the case is against a specific individual, that person must be served
with a summons and complaint to give the court jurisdiction to try the case,
18
and the judgment applies to that person and is called an "in personam
judgment."
In the Civil Code of 1864, Legal doctrine defines civil contractual liability as
follows 'the obligation of the debtor to repair the prejudice caused to the
creditor by the failure to fulfill, improper fulfillment or delayed fulfillment of
the duties arising from a valid contract'
8091.)
Contrast
between
Tortious
Liability
and
contractual
Liability:
The principle distinction between tortious liability and contractual liability is
the nature of duty. The duties in the torts are settled by the law where the
duties in the agreement are altered by the contractual parties. Accordingly,
there is more organized and stricter in tortious liability than in contractual
liability. In specific cases, the same incident may offer ascent to liability both
in contract and in tort. For instance, when a traveler whilst going with a
ticket is harmed inferable from the carelessness of the rail route
organization, the organization is liable for a wrong, which is both a tort and a
breach of a contract. The contractual duty may be owed to one individual
and the duty independent of that agreement to another. The surgeon who is
called by a father to work his girl owes a contractual duty to the father to
fare thee well. If he fails in that duty, he is also liable for a tort against the
daughter. For example, Railway, a woman and her child were traveling in the
defendant's train and the child was injured by defendant's negligence. The
child was held entitled to recover damages, for it had been accepted as
passenger. Contractual liability is conferred by persons intentionally united,
while tort liability unites individuals as a consequence of shot. The contrasts
between the two types of liability also comprise of demonstrating the blame,
to make the guilty party liable. In the field of contractual liability, the
19
indebted person is assumed liable. Along these lines, the contractual creditor
ought to demonstrate the presence of the agreement and of the inability to
satisfy it, as it is assumed that the debt holder is liable, until demonstrated
generally. The blame assumption may be contradicted just by demonstrating
the power majeure or unintentional case.
There is some similarities between tortious liability and contractual liability
according to Civil Code of 1864, Both liabilities are types of civil liability
responsibility have an indistinguishable structure and require the satisfaction
of the same basic components, total vicinity of four conditions: unlawful
action, prejudice, causality connection of the illicit activity and preference
and blame. Both contractual liability and tort liability are overwhelmed by
the thought of repairing the bias created by the unlawful activity on the
benefits, in both types of liability, the repair ought to be fundamental, to be
specific, it ought to cover both the damage caused and advantages not
accomplished. In both cases, the repair of the damage is done in kind or
when this is impractical, by cash equal, which speaks to the estimation of the
bias.
8091.)
Nature of Liability on Negligence:

Before 1932, the tort of negligence just existed in restricted circumstance,
for example, street mishaps. On the other hand, in Donoghue v Stevenson
[1932] AC 562, Lord Atkin endeavored to set out a general rule, which would
cover all the circumstances where the courts had officially held that there
could be liability for negligence. Subsequently negligence as a tort consists
of a breach of a legal duty to fare thee well by the defendant, causing
consequential loss to the claimant.
The term Negligence is used to descried carelessly carrying out an act &
breaking a legal duty of care owed to another causing them loss or damage.
20
Negligence is most important modern tort. For an action for negligence to

succeed, the claimant must prove three things: A duty of care was owed by
the defendant to avoid causing injury, damage or loss, there was a breach of
that duty by defendant and the resulting damage was principally caused by
the negligence
Defenses to Negligence:
A court may reduce the amount of damages paid to the claimant if the
defendant establishes that they contributed to their own injury or loss, this is
known as contributory negligence. Like in Sayers v Harlow UDC 1958,
the claimant was injured whilst trying to climb out of a public toilet cubicle
that had a defective lock. The court held that the claimant had contributed to
her injuries by the method by which she has tried to climb out.
Volenti Non fit Injuria:
Where a defendants actions carry the risk of tort being committed, they will
have a defence if it can be proved that the claimant consented to the risk. It
means voluntary acceptance of risk of injury. In ICI v Shatwell 1965, the
claimant and his brother disregarded safety precautions whilst using
detonators, resulting in injury to the claimant. The court upheld the defence
of Volenti non-fit injuria it was disregarded his employers statutory safety
rules and consented to the reckless act willingly.
Negligence has three elements, likewise: Duty of Care, Breach of Duty, and
Causation.
(ACCA, F4, Pp-131)
Duty of Care:
In Donoghue v Stevenson 1932, the neighbor principle was defined as;
you must take reasonable care to avoid acts or omissions which you can
reasonably foresee are likely to injure your neighbor. Who, then, in law is my
neighbor? The answer seems to be persons who are closely and directly
affected by my act that I ought reasonably to have them in contemplation as
21
being so affected when i am directing my mind to acts or omissions which

are called into question.
Res ipsa loquitur:
The thing speaks for itself. If an accident occurs, which appears to be
mostly likely caused by negligence, the court may apply this maxim and
infer negligence from mere proof of the facts. The burden of proof is
reversed and the defendant must prove she/he was not negligent.
The claimant must demonstrate the following to rely on this principle
likewise, the thing, which caused the injury was under the management &
control of the defendant and the accident was such as would not occur if
those in control used proper care. Therefore, in Richley v Fould 1965 the
fact that a car skidded to the wrong side of the road was enough to indicate
careless driving.
In Mahon v Osborne 1939, a patient died shortly after an abdominal
operation and post-mortem examination found a swab in his body.
Res ipsa loquitur applied only to things within common experience, and
that was not the case with complex surgical procedures. This also called
medical negligence.
In Barnett v Chelsea and Kensington Hospital Management
Committee
(1968),
the
claimant
presented
himself
in
the
defendants casualty department vomiting and feeling extremely

unwell. The doctor on duty refused to examine him as he was also
feeling unwell and sent him away. The court decided that the hospital
did owe a duty to anyone arriving in casualty. Therefore, a hospital
cannot pick and choose which patients they want to treat and to which
they owe a duty.
(ACCA,
F4, Pp-127)
In Caparo Industries pIc v Dickman [1990] 2 AC 605, Caparo
Industries purchased shares in Fidelity Plc in reliance of the accounts
22
which stated that the company had made a pre-tax profit of 1.3M. In
fact, Fidelity had made a loss of over 400,000. Caparo brought an
action against the auditors claiming they were negligent in certifying
the accounts.
In
above
case,
there
is
fundamental
to
understanding
professional
negligence. It was decided that auditors do not owe a duty of care to the
public at large or to shareholders increasing their stakes in the company in
question. In the case the House of Lords decided that there were two very
different situations facing a person giving professional advice. Preparing
information in the knowledge that a particular person was contemplating a
transaction and would rely on the information in deciding whether or not to
proceed with the transaction (the special relationship) and preparing a
statement for general circulation, which could foreseeably be relied upon by
persons unknown to the professional for a variety of different purposes. It
was thus held that public companys auditors do not owe any duty of care to
the public at large who rely on the audit reports for investing even there
were not enough proximity between Capro Plc. and the auditors.
In MacNaughton (James) Papers Group Ltd v Hicks Anderson & Co
1991, it was stated that it was necessary to examine each case in the
light of the following, Foreseeability, Proximity and Fairness. This is
because there could be no single overriding principle that could be
applied to all individual cases. Lord Justice Neil set out matters to be
taken into account in considering this.
The purpose for which the statement was made

The purpose for which the statement was communicated
The relationship between the maker of the statement, the recipient and
any third party

The size of any class to which the recipient belonged
The state or knowledge of the maker
Any reliance by the recipient
23
Breach of the Duty of Care:

Keeping in mind the end goal to fulfill the duty of care to his patient a
specialist must show the standard of consideration of an ordinary individual
honing his calling. The duty is to practice sensible ability and aptitude: if a
specialist makes a lapse of judgment then there is no liability if a sensible
individual from the calling would have made the same mistake.
In Bolam v Friern Hospital Management Committee (1957), the
claimant received electric shocks as part of a treatment for psychiatric
problems and had sustained fractures as a result. The risk of fractures
would have been all but eliminated if the claimant had been given
drugs beforehand but the defendant doctor did not as he felt that the
drugs carried their own risks.
The important point about Bolam is what the trial judge said, A doctor is not
negligent, if he is acting in accordance with a practice accepted as proper by
a responsible body of medical men skilled in that particular art, merely
because there is a body of such opinion that takes a contrary view.
Probability of Injury:
It is assumed that a sensible man takes more noteworthy insurances when
the risk of damage is high. In 'Glasgow Corporation v Taylor 1992, a
nearby power was held to be careless when youngsters ate harmful berries
in a recreation center. A notice notification was not thought to be adequate
to secure kids.
Seriousness of the Risk:
The youthful, old or debilitated may be inclined to more serious injury that a
fit healthy individual. The 'egg-shell skull' guideline implies that you must
take your casualty as they may be. Where the danger to the helpless is high,
the level of consideration needed is raised 'Smith v Leech Brain & Co
1962.
24
Common Practice:
Where an individual can prove their actions were in line with common
practice or custom it is likely that they would have met their duty of care.
This is unless the common practice itself is found to be negligent.
Where an action is of some social benefit to society, defendants may be
protected from liability even if their actions create risk. Such as, a fire engine
provides a social benefit that may outweigh the greater risk to public. People
who holds themselves out to possess a particular skill should be judged on
what a reasonable person possessing the same skill would do in the situation
rather than those lay down by the courts.
(ACCA, F4, Pp-127) & (Turner C. and Hodge S.)
Causation:
This is the third element of negligence claim. The claimant must first prove
that the defendant's breach caused or materially contributed to the damage.
But for Test:
This test takes a gander at whether yet for the defendants breach the
damage breach of duty would the claimant have endured misfortune
damage?
In Barnett v Chelsea and Kensington Hospital Management
Committee [1969], Mr. Barnett went to a setback office whining of
regurgitating. The specialist did not look at him, but rather instructed
him to go home and see his own specialist. Truth be told he was
experiencing arsenic poising and kicked the bucket five hours after the
fact. It was held that the hospital management was not liable despite
the doctors negligence. There is no cure for arsenic poisoning and so
the doctors negligence did not bring about the passing; Mr. Barnett
would have passed on in any case. As a rule, the petitioner will have no
issue in demonstrating, on an offset of probabilities that the rupture of
25
obligation brought on the harm. Challenges may emerge, then again,

where the damage could be inferable from two or more conceivable
dangers, for one or more of which the defendant is responsible.
Intervening Events:
Courts will only impart liability, where there is a cause of events that are a
probable result of the defendants actions. Defendants will not be liable for
damage when the chain of events is broken. Where the claimant endures
damage, which would not have happened. But rather for a further occasion
which mediates between the litigant's carelessness and that harm, it must be
chosen whether the respondent stays mindful or whether the mediating
demonstration breaks the chain of causation, this implies respondent won't
be obligated or at risk for damaged what he brought on.
In Sayers v Harlow UDC [1958], the claimant was incidentally
secured a latrine because there was no idea about within the entryway.
She attempted to move out by remaining on the can move holder,
which spun round, and she fell and maintained wounds. Her activity
against the committee for carelessness in neglecting to keep up the
restroom succeeded.
The court held that the claimants act in trying to escape was not sufficiently
negligent to break the chain of causation, so the council were liable for her
injury although her damages were reduced by 25% under the principle of
contributory negligence.
(BPP,ACCA, F4,p-128)
A Business Can be Vicariously Liable:

Vicarious Liability:
Where the first defendant is engaged in carrying out his/her obligations
under a contract of employment, & while doing so commits a tort against the
claimant, then claimant may sue not only the first defendant but also his/her
26
employer. It is irrelevant whether the employer was at fault. Vicarious liability

is numerous individuals who identified with damage happens will have
obligation regarding the harm by offense. In business, the relationship of
employer and employee is a vital piece of vicarious liable on the grounds
that businesses will have the solid monetary ability to pay to the damaged
party. Thusly, employer will be the fundamental in charge of harm brought
about by their employee recommended by law. After that, the employee
needs to discount that sum for employer. For example when Ashis is liable to
Nitten for damages caused by Kunal thus, it is liability for action of another.
(Rush & Ottley 2006)
There many types of vicarious liability that a business can be vicariously
liable. Likewise, Nuisance, Occupiers, trespassers, Breach of statutory duty
and Economic tort. An employer can be vicariously liable for the tortious acts
of a worker yet not for the most part of a self-employed entity. Once it is
established the wrong was committed by an employee the next issue is
whether the employer have any defenses in neglecting liability. Three
conditions must be satisfied before an employer can be held vicariously
liable for an employees tort, such as a tort must have been committed by
the employee, person who committed the tort must have been an employee
and The employee must have been acting in the course of his employment
when the tort was committed. In Salmond on Torts (1st edn, 1907) court
said a wrongful act carried out by an employee will be treated as having
been done in the course of employment if it is either a wrongful act
expressly or impliedly authorized by the employer, or a wrongful and
unauthorized mode of doing some act authorized by the employer.
Therefore, an employee is liable even for acts, which he has not authorized,
provided they are so connected with acts which he has authorized, that they
may rightly be regarded as modes of doing them. As long as the employee
was doing something he was employed to do, he will usually be acting in the
course of his employment, even though he was careless or mistaken.
27
There are components to focus vicarious liability between employer and

employee: They have a substantial relationship business in the middle of
employer and employee, employees actualizes the tort act over the span of
their work that base on the assention and necessity of employer. As long as
the employee was doing something he was employed to do, he will usually
be acting in the course of his employment, even though he was Careless,
mistaken,
Careless:
In
Century
Insurance
Co
Ltd
vs.
Northern
Ireland
Road
Transport Board HL [1942] AC 509 The employer of a petrol tanker

driver was held vicariously liable after the driver negligently lit a
cigarette and threw away a lighted match whilst discharging 300
gallons of petrol at a filling station.
Because of careless, an explosion happened and resulted in the destruction
of the tanker, a car and damage to a number of houses. As the driver had
been fulfilling his duties at the time of the negligent act, he was held to
have been acting in the course of his employment.
Mistaken:
In Bayley v The Manchester, Sheffield, and Lincolnshire Railway
Company (1873), a railway company was found vicariously liable for
an assault committed by one of its employees, a railway porter. The
porter had violently thrown the claimant off the train just as it was
moving off, under the mistaken belief that the claimant was on the
wrong train. The court found that the porter had arguably been acting
in the course of his employment, as one of his duties had been to
prevent passengers from travelling on wrong trains.
On the other hand, an employee who was outside the scope of his
employment when he committed a tort.
An employer will not be vicariously liable in these circumstances, as the
wrongdoer is not regarded as being an employee at the time the tort is
committed.
28
Disobedience:
In Rose v Plenty CA [1976] 1 All ER 97, a milkman, against the express
instructions of his employer, paid the claimant (a 13-year-old boy) to help
him deliver milk, collect empty bottles and obtain payment from customers
on his round.
Due to the milkmans negligent driving, the claimants foot was broken
when it was crushed between the milk float and the kerb. Even though the
milkman had ignored his employers express instructions not to employ
children or give lifts to people on the float, the employer was nonetheless
found to be vicariously liable. The milkman had been acting in the course
of his employment in delivering the milk (an authorized act), even though he
chose to do this in an unauthorized manner. Nevertheless, the milkman
disobeyed the employer.
(Cooke J. 2009)
Elements of the Tort of Negligence and Defenses in

different Business Situations:
As we saw before, the idea of a duty of care was made in the Donoghue
case. The House of Lords expressed that each individual owes a duty of
care to their neighbor. The Lords went ahead to clarify that "neighbor"
really signifies persons so closely and directly affected by my act that I
ought reasonably to have them in contemplation as being so affected. This
wide definition could incorporate just about anybody- if still in operation
today the courts would unquestionably be invade with cases.
The later instances of Anns v Merton London Borough Council (1977)
and Caparo Industries Plc. vs. Dickman (1990) confined the definition a
little by presenting proximity and fairness.
Proximity simply means that the parties must be sufficiently close so that it
is reasonably foreseeable that one partys negligence would cause loss or
29
damage to the other. Fairness means that it is fair, just and reasonable for
one party to owe the duty to another.
The defense of volenti non fit injuria requires a freely entered and
voluntary agreement by the Claimant, in full knowledge of the situation, to
absolve the Defendant of all legal consequences of their actions. The
claimant's consent to the damage endured, or to the danger of damage, is a
decent defense. The claimant may agree to the curse of damage
intentionally or he may agree to the danger that mischief may be exacted
incidentally. A claimant who agrees to intentional damage or injury has no
reason for activity in the event that he alters his opinion later. An inquirer
who has agreed to a danger of harm or damage cannot by and large sue if
that damage or injury subsequently occurs, so long as it was not intentional.
In White v Blackmore [1972] 3 WLR 296, Mr. White was killed at a
car race due negligence in the way the safety ropes were set up. A car
crashed into the ropes about 1/3 of a mile from the place where Mr
White was standing. Consequently, he was catapulted 20 foot in the air
and died from the injuries received. Mr. White was a driver in the race
but at the time of the incident, he was between races and standing
close to his family. He had signed a competitors list, which contained
an exclusion clause.
There was also a warning sign at the entrance to the grounds which stated
that Jalopy racing is dangerous and the organizers accept no liability for any
injury including death howsoever caused. The program also contained a
similar clause. His widow brought an action against the organiser of the
event who defended on the grounds of volenti and that they had excluded
liability.
Court found that the defense of volenti was unsuccessful.
In exceptional cases, the realities may be so overwhelmingly for the claimant
that the court chooses the defendant ought to demonstrate that they were
not negligent. The lawful term for this is res ipsa loquitur. It applies in
30
circumstances where the reason for the injury was under the control of the
litigant and that the episode would not have happened in the event that they
had taken fitting consideration. It is regularly connected in medicinal cases,
for instance in Mahon v Osborne (1939), a surgeon had to prove it was
not negligent to leave a swab inside a patient. Doctor breach duty of care
limits of res ipsa loquiur.
(BPP, ACCA, F4. P-127)
Application of Element of Vicarious Liability in given

Business Situation:
Case Scenario:
One of the largest rail crashes on the British rail system was the Hatfield rail
crash in 2000, it left 4 people dead and 102 injured. After the crash, a long
enquiry took place to see how the crash happened and who are liable. The
enquiry found that a part of the track was badly damaged which led to the
train derailing, the part of track was found to have been neglected for a
period of 21months.
The court held the maintenance company Balfour Beatty
liable and fined
them 10 million pounds. The court also gave the parent company of Balfour
Beatty a hefty fine, Balfour Beatty was managed by Railtrack who were
handed a 3.5 million fine for breaching safety rules. The judge said it
was one of the worst examples of sustained industrial negligence
in a high risk industry. The crash could have been easily avoided if a
safety plan was in place and properly followed. In this case, liability had to
be extended beyond the employer Balfour Beatty as Railtrack were at fault
for not properly monitoring the maintenance work. However, no charges
brought against the employees as they were only following the orders of the
employer Balfour Beatty. For this situation Balfour Beatty ought to take the
vast majority of the blame as they are chiefly at flaw for not executing the
right upkeep techniques. However Railtrack ought to and rightly took a
31
portion of the blame as they ought to have been all the more firmly
managing the, what organization they controlled was doing as it was to their
greatest advantage. Here Balfour Beatty breach the duty of care and
neglect duty of care. From above case, we can say that because of
industrial negligence the organization had to pay the fine.
In Gravil v Carroll & Redruth Rugby FC [2008] EWCA Civ 689,
the defendant was a semi-professional rugby player employed parttime by Redruth Rugby Football Club to play rugby. His contract of
employment expressly forbade him from getting into fights with other
players during matches. At the start of the 2nd half of a match with
Halifax Rugby club a fight developed following the break down of a
scrum just after the whistle was blown, in which the first defendant
punched the claimant (a member of the opposite team) in the face.
The claimant suffered a fractured right orbit which subsequently
required reconstructive surgery. DVD footage showed that at the time
of the battery, there remained something of a mele of the kind which
frequently occurred during rugby matches following the break up of a
scrum. The court found that Rugby clubs expect these types of
incidents to occur and that it is common for punches to be thrown by
players at these times.
The Court of Appeal found that there was a very close connection between
the punch and what the defendant was employed to do by Redruth Rugby
club. The battery took place during a mele of the kind, which frequently
occurred in rugby matches. When a scrum is breaking up after the whistle
has gone. Punches are often thrown during these incidents and such foul
play was to be regarded as an ordinary, though undesirable incident of a
rugby match. Again, it would be fair and just to hold the Rugby club
vicariously liable for its employees battery. Clubs are aware of the
possibility that players may be seriously injured by foul play during matches
and it is important to encourage them to take proactive steps to minimize
32
such action. The court felt that there can be a fine line between playing hard
and dirty, and that without vicarious liability, Rugby clubs might be
tempted to turn a blind eye to aggressive conduct. There was also a need to
ensure that injured claimants would have a remedy, which would be
achieved by making Rugby clubs vicariously liable for the actions of their.
However, the court, make it clear that the decision would only apply to
professional and semi-professional Rugby players who were under a contract
of employment with their clubs, and not to amateur play.
33
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34
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HND

Aspects of Contract & Negligence for

Assessment Result: Merit

Volenti Non fit Injuria:............................................................................................ 18

prompts a contract debate. So English law searches for target test of

correspondence between the parties included. (Rush & Ottley 2006)

Aspects of Contract and Negligence for Business

In Taylor v Laird (1856), the captain of a ship resigned during a voyage.

Offeror offered and offeree accept it. (Sen &

demonstrate the contrary. In social and household agreements in the middle

Aspects of Contract and Negligence for Business

consideration as zero economic value attached to it but the nominal rent

mentality, people in intoxicated stated or with a disability cannot form a legal

If the act is impossible in itself physically or legally, if can not be enforced by

Aspects of Contract and Negligence for Business

Aspects of Contract and Negligence for Business

Aspects of Contract and Negligence for Business

In Hutton v Warren (1836): the defendant landlord gave claimant, a

Aspects of Contract and Negligence for Business

Application of the Element and Terms of a Contract:

consent, nobody influenced both parties or forced them to do so. On the

Nature of Liability on Negligence:

Negligence is most important modern tort. For an action for negligence to

being so affected when i am directing my mind to acts or omissions which

defendants casualty department vomiting and feeling extremely

The purpose for which the statement was made

any third party

Aspects of Contract and Negligence for Business

Breach of the Duty of Care:

obligation brought on the harm. Challenges may emerge, then again,

A Business Can be Vicariously Liable:

employer. It is irrelevant whether the employer was at fault. Vicarious liability

There are components to focus vicarious liability between employer and

Transport Board HL [1942] AC 509 The employer of a petrol tanker

Elements of the Tort of Negligence and Defenses in

Aspects of Contract and Negligence for Business

Application of Element of Vicarious Liability in given

liable and fined

Aspects of Contract and Negligence for Business

Aspects of Contract and Negligence for Business

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