Assessment On:
Unit: 5
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
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
endeavours
to
take
gander
at
the
behaviour
and
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
Aspects of Contract and Negligence for Business
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.
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
Aspects of Contract and Negligence for Business
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
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.
Aspects of Contract and Negligence for Business
13
14
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
Aspects of Contract and Negligence for Business
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.
Aspects of Contract and Negligence for Business
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'.
Aspects of Contract and Negligence for Business
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,
Aspects of Contract and Negligence for Business
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'
('Juridica Series', Academica Science Journal.(2013). ISSN: 2285
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
Aspects of Contract and Negligence for Business
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.
('Juridica Series', Academica Science Journal.(2013). ISSN: 2285
8091.)
20
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
Aspects of Contract and Negligence for Business
21
(1968),
the
claimant
presented
himself
in
the
(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
Aspects of Contract and Negligence for Business
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.
23
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
Aspects of Contract and Negligence for Business
25
26
27
Century
Insurance
Co
Ltd
vs.
Northern
Ireland
Road
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)
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
Aspects of Contract and Negligence for Business
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)
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
Aspects of Contract and Negligence for Business
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
Aspects of Contract and Negligence for Business
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
References:
BPP Learning Media. (2010). ACCA - F4 Corporate and Business Law. BPP
Publishing. United Kingdom. London: BPP Learning Media Ltd.
Cooke J. (2009). Law of Tort. England, Essex: Pearson Education Limited.
Furmston P. M. (2007). Law of Contract. England. Oxford: Oxford University
Press.
Gray I and Manso S. The Audit Process: Principles, Practice and Cases. UK,
London: Thomson Learning 2008.
Haque E. H. Dr. (2012). Law of Contract. 2nd edn. Bangladesh. Dhaka: Law
Lyceum.
http://studyandjobs.com/the-aspects-of-contracts-negligence-for-business/
(no date) (Accessed: 10 May 2015).
http://www.accaglobal.com/hk/en/student/exam-supportresources/fundamentals-exams-study-resources/f4/technical-articles/tortnegligence.html. (25 April 2015). (Accessed 09 June 2015).
http://www.lawteacher.net/free-law-essays/contract-law/different-types-ofbusiness-agreement-contract-law-essay.php. (no date) (Accessed 12 May
2015).
http://www.uniassignment.com/essay-samples/law/importance-of-theessential-element-law-contract-essay.php (no date) (Accessed: 10 May
2015).
https://www.academia.edu/6871868/TORT_TOPIC_1_INTRODUCTION_Definition_Nature_and_Scope. (no date). (Accessed
10 June 2015).
Khan M., Robson M. and Swift K. (2002).Clinical Negligence. 2nd edn. United
Kingdom, London: Cavendish Publishing Ltd.
McKendrick E. (2009). Contract Law (Palgrave Macmillan Law Masters). 8th
revised edn. England. Hampshire: Macmillan Publisher Limited.
Rush J. and Ottley E. (2006). Business Law. England: London. Thomson
Learning.
Sen K. A and Mitra K. J. (2012). Commercial Law Including Company Law and
Industrial Law. 25th edn. India. Kolkata: The World Press Ltd.
Turner C. and Hodge S. (2010). Unlocking Tort. 3rd edn. Uk, London: Bookpoint
Ltd.
Aspects of Contract and Negligence for Business
34
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