ASPECT OF CONTRACTS AND NEGLIGENCE’S FOR THE BUSINESS

SUBMITTED BY:

SUBMITTED TO:

DATE OF SUBMISSION

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Executive Summary

TAM’s college has agreed to the proposal of NAMS marketing firm to in order to reach

to other students with a dream of becoming one of the best educational institute in UK.

TAM’s also hired some legal advisors to reconcile the legal issues and secure the future

risk against the institute. Nonetheless the management of TAM’s college took legal

activities founded mostly on the prime periods of the NAMS that asserted; if the NAMS

does not consign the proper answer then will refund the advance and furthermore pay

compensation of £1500. The TAM’s college also was a victim of Vicarious Liability and

had to pay the compensation to the injured employee.

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TABLE OF CONTENTS

Executive Summary..................................................................................................................................... 2

Task 1.......................................................................................................................................................... 4

1.1 Essential Elements of a Valid Contract..............................................................................................4

1.2 The Impact of Different types of Contract..........................................................................................5

1.3 Analysis of Terms in Contracts..........................................................................................................6

Task 2.......................................................................................................................................................... 7

2.1 Application of the Elements of Contract.............................................................................................7

2.2 Application of the Law....................................................................................................................... 8

2.3 Evaluation of the Effect of Different Terms........................................................................................9

Task 3........................................................................................................................................................ 11

3.1 Contrasting Liability in Tort with Contractual Liability.......................................................................11

3.2 The Nature of Liability in Negligence...............................................................................................11

3.3 Vicarious Liability in business..........................................................................................................11

Task 4........................................................................................................................................................ 13

4.1 Application of the Tort of Negligence and Defences........................................................................13

4.2 Application of Vicarious Liability......................................................................................................14

Conclusion................................................................................................................................................. 16

References................................................................................................................................................ 17

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Task 1

1.1 Essential Elements of a Valid Contract

All contracts are divided in portions and to fulfill a contract properly parties need to

perform all the elements of the contract. There are seven elements of a valid contract.

These elements are significant in order to make a valid contract.

The essential elements of a valid contract are given below.

1) Offer and Acceptance: Offer and acceptance in necessary to form a lawful

contract and it offer us the initiation of a contract. After the offer, the parties

engaged in the agreement need to accept upon the offer and thus form an

agreement (Kennedy, R. D. & McMullen, S. Y. 1968).

2) Lawful Consideration: A mutual affirmation lead to a contract where the

individual acknowledging the offer takes presumption founded on some lawful

concern (DiMatteo, L. A. 1998).

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1. Offer and Acceptance

2. Lawful Consideration

3. Free Consent

4. Writing and Registration

5. Enforceable by Law

6. Certainty

7. Possibility of Performance

Figure: Essential Elements of Valid Contract

3) Free Consent: To join in to a legitimate affirmation the two parties have to give

their free consent, or the agreement will be directed as a null and void contract

(Marsh, P.D.V. 2001).

4) Writing and Registration: An authorized indenture has to be in a writing pattern

and recorded by the government administration to make the contract legitimate

(Roberts, M. & Zahay, D. 2012).

5) Enforceable by Law: to make an agreement valid the agreement should be

legalized and the agreement should be enforceable by law (DiMatteo, L. A. 1998)

6) Certainty: Every part of an agreement has to be certain so that each party is

capable to identify the affairs considering the agreement (Marsh, P.D.V. 2001).

7) Possibility of Performance: A valid agreement must have the possibility of

performance because if the affirmation cannot perform the activities then it will

not be proposed as a valid agreement (1968Roberts, M. & Zahay, D. 2012).

1.2 The Impact of Different types of Contract

There are many types of contracts that are;

Implied Contact: Implied contract is such a contract where, a person behaves

like he/she is the owner of any assets and tries to sell those assets. To go in to a

valid contract all the parties should give free consent regarding the contract

(Kennedy, R. D. & McMullen, S. Y. 1968). But in case of implied contract it will be

proposed as a legitimate affirmation if one party does not give permission.

Because the person who pretending to own the assets may be an agent of the

real owner and the free consent of the real owner is not necessary.

Contract under Seal: It is significant to assess the articles with closures and the

parties are lawfully responsible to accept the outcomes of the affirmation after it

is sealed (Chen L., Law S. and Lee S. 2003). The customary procedure of

making an affirmation legit is the completing of the lawful item that is enforceable.

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Executed Contact: It is a type of contract where the parties undergo and

execute all the terms and conditions mentioned in the contract before forming the

contract and no additional terms need to execute (Marsh, P.D.V. 2001).

Express Contract: It refers to the contract where the agreements are made

either orally or in a written format and the terms are acknowledged by the

authority and focuses on the consent of the parties (Roberts, M. & Zahay, D.

2012).

1.3 Analysis of Terms in Contracts

An agreement consists of many objectives. It is imperative that the parties must realize

the distinct types of agreements, time span, and constituents which not only assists the

parties to obey with the affirmation but furthermore assists to decrease affirmation costs

(Roberts, M. & Zahay, D. 2012).

In alignment to become the best educational institute in UK, they are going into

affirmations with some agencies for their marketing and advancement causes and

interpreting the lawful matters. The TAM’s college is endeavoring to become one of the

best informative institutes of UK. To pattern a legitimate affirmation there should be

some dissimilarity amidst the swapping of terms between the parties and TAM’s college

is endeavoring to convey the dissimilarities. 

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Task 2

2.1 Application of the Elements of Contract

The parties participating in a contract must respect the time span and the terms of the

contract and if any of the party tries to breach the terms of affirmation then the party

respecting the agreement can proceed to court and take lawful activities (Marsh, P.D.V.

2001).

The basic elements of the contract with NAMS are:

NAMS took the contract of TAM’s college to market their reputation so that they could

become one of the best educational institutes and capture the student’s attention. In an

authorized legitimate agreement, offer is the initiation of a contract with another party

and builds a formal relationship.

To make a contract valid the terms and conditions provided by one party has to be

accepted by the other parties taking part in a formal contract, or it will be advised as a

void agreement. TAM’s college agreed to the NAMS offer and decided to go in to a

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Valid contract is enforceable by law

Formal relation

Free consent

Acceptance

Offer

Figure: Basic Elements of Valid Contract

formal contract with NAMS for one month and also paid the advance of £2500. Both

TAM’s college and NAMS formed a formal relationship and the contract was in a written

form so that the contract may be enforceable by law.

TAM’s college has taken legal steps against the NAMS marketing firm because they

were unable to deliver the promise and breached the terms of the contract. And as the

contract was a formal one that is why TAM’s college went to court for the legal

assistance and the contract was enforceable by law.

2.2 Application of the Law

The parties pledged in an affirmation give self-assurance and increase the terms and

conditions of an affirmation (Marsh, P.D.V. 2001). Approach of the parties may disagree

from the contract which was presumed to be in use as just a pre-declaration of a valid

agreement and consequently not part of the contract. As two or more parties go into

agreement then some crucial constituents arise that need to be suggested in order to

make a legitimate agreement. Parties to an indenture chase only its terms, not by any

secondary affirmations that may not be accomplished.

To form a valid contract certain requirements are needed. Such as;

Contract Includes Conditions and Warranties: The more imperative situation

are describing "Circumstances", the lesser important situation are called

"Warranties”. These constituents are so significant that without any one or

supplementary position, the parties would not advance into the affirmation

(Collins, Hugh. 1999). The affirmation itself motivates both the parties. The court

examines at each case on its own merits. The court will address all the

surrounding attenuating factors, encompassing the gravity of the penalties if the

contract is held to be non-binding.

Collateral Contracts: Collateral contract is a type of contract in which the terms

and situation are routinely in a composing pattern as the base of the agreement.

Committees have been coordinated to find a security conference someplace to

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make the affirmation legitimate (DiMatteo, L. A. 1998). Where the affirmation

have been conceived and suggested as to make certain to induce the main

affirmation.

2.3 Evaluation of the Effect of Different Terms

There are numerous terms adopted in the contracts and some of them are only for

formalities and guidelines (Collins, Hugh. 1999). These are formation of affirmation and

it is necessary to be in a writing pattern and the sealed. There are many types of

guideline and it needs various types of formalities.

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The Patrol Evidences Rule: It

is a function that embraces oral

evidences. Oral evidences cannot be supplemented or shown to be a

false in composing part (Chen L., Law

S. and Lee S. 2003). The agreement habitually

endeavors to the law of contract but also to all types of

identification.

Various Types of Conditions: The breach of contract

has universal guideline which

leads to refutation and indemnity

(Chen L., Law S. and Lee S. 2003). Different kinds of terms may bend

the affirmation and functional

judiciousness of phrase is good for

centralized grouping for a

contractual signal.

Establishing Implied Terms:

There are positions in the affirmations

that need to be coordinated and

the terms need to be inferred formally

and it is accomplished from

individual to individual (Chen L., Law S. and Lee S.

2003).

Figure: Effects of Different Terms

The Up-To-The-Minute Observation

In the scenario TAM’s college has agreed to go into a contract with NAMS on the basis

of their oral evidence that NAMS can help the TAM’s college to promote their facilities

within one month only for £6000. The TAM’s college has established a formal contract

between TAM’s college and NAMS marketing agency.  

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Task 3

3.1 Contrasting Liability in Tort with Contractual Liability

Tort and contact liability:

Contract damages are established on deficiencies that are foreseen, while tort damages

are compensatory. The regulation of tort and of contract is categorized as part of the

"Law of Obligations", but the regulation of tort concerns to every detail that it is

applicable to, while in the guideline of affirmation or in trusts obligation is "Voluntarily

Assumed" (DiMatteo, L. A. 1998).

3.2 The Nature of Liability in Negligence

1. DUTY: The duty is an obligation of one individual to another individual; it is

conceived pattern the communal yearns and convictions (DiMatteo, L. A. 1998).

The glue of communal obligation is the threaded that binds humans to one

another in congregations where preferences are proposed inappropriately if they

contravene a pre-existing impulse and refurbish hurriedly.

2. Breach of Contract: It is the demeanour of the individuals to accelerate as a

reckless one-by-one or party and not performing the affirmation periods and

situation. This constituent suggests the pre-existence of a standard of correct

demeanour to bypass enforcing undue dangers of impairment to persons

(Roberts, M. & Zahay, D. 2012). Breach of agreement is the most important thing

in the contract tort of negligence. NAMS has breached the affirmation when they

have halted the advancement and trading of TAM’s college for one week.

3.3 Vicarious Liability in business

Vicarious blame means that any individual can be detained lawfully or can be accused

for the undertakings of a distinct party or individual regardless of the aspect that

somebody swamps no error in furtherance of the inattentive or tortuous acts (Leibee, B.

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C. 1976). It is a doctrine of English tort guideline that imposes firm liability on employers

for the wrongdoings of their workers. Usually, an enterprise will be held liable for any

tort promised while a employee is carrying out their obligations (DiMatteo, L. A. 1998).

In the assigned scenario the management of TAM’s college was the victim of the

doctrine of vicarious liability because the guard’s family went to court and has taken

lawful actions against the TAM’s college. Though the administration and the supervisors

were notified about the misfortunes and were furthermore suggested to wear correct

apparel for the non-teaching employees to keep away from wounds.

The TAM’s college are compelled to pay the compensation because of the doctrine of

vicarious liability and they denied paying the compensation to the staff because he was

not paying any heed to the instructions.

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Task 4

4.1 Application of the Tort of Negligence and Defences

There are some elements of the tort negligence and defences in various business

situations, they are given below

Duty of Care: TAM’s college employees were notified about the impairment and

deficiency that the employees might face. The individual might owe an obligation of care

to double-check that they do not suffer from any inapt damage. If such obligation is

broken, a lawful liability is enforced (Leibee, B. C. 1976).

TAM’s college staffs were advised about the harm and deficiency that the workers might

face. If such duty is broken, a lawful liability is enforced. An individual may owe a duty of

care to ensure that they do not bear from any unreasonable damage.

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P o te n tia l s o u rc e s o f n e g lig e n c e In a d e q u a te p ro te c tio nU s e o f fa u lty e q u ip m e n tP o o r s e le c tio n o f a c tiv it ie sD e fe n c e a g a in s t

N e g lig e n c eA s su m p tio n o f r iskS u d d e n e m e rg e n c yA n a c t o f G o d

Figure: Sources of Negligence

Potential sources of negligence are:

Inadequate protection: Inadequate protection refers to negligent behaviour on

part of the person who is unwilling to wear protective gears (Myer, J. W. 1978).

Use of faulty equipment: Another potential source of negligence is the use of

faulty equipment which can cause harm (John W. 2009)).

Poor selection of activities: The undertakings that are beyond the capabilities

of individuals or inadequate information of undertakings are poor assortment of

activities (Emenike, E.U.I. 1989).

Defence against Negligence:

Assumption of risk: It is assumed that a person takes measure of the risks

when engaging in activity (Emenike, E.U.I. 1989).

Sudden emergency: Any act of immediate action to help the person in danger.

Such as, attempt to rescue a person drowning in the water is an act of sudden

emergency (John W. 2009).

Tort Negligence Law: Tort of negligence law is a type of guideline in which it is

founded and functioned in the realm of intentional tort guideline and the basic cause of

negligence guideline, it is to command and fight back the workers from cuts related to

their line (Myer, J. W. 1978). TAM’s college’s non-teaching employees were suggested

to use defending apparel for their security.

4.2 Application of Vicarious Liability

In this scenario the supervisors did not chase the directions and lead one of their staffs

to blame without correct apparel. Supervisors have the inherent power to command

over the employees and the supervisors were demanded to maintain the right apparel

and correct keeping safe gears of the non-teaching staffs and they were supposed to

instruct other staffs to do so (Kennedy, R. D. & McMullen, S. Y. 1968).

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The TAM’s college regulated the wearing for college’s non-teaching staffs in alignment

to stay away from future misfortunes. Whereas the older supervisors have unseen the

principles and he has dispatched off an evening guard on obligation without the correct

apparel. It is against the institute’s benchmark.

On the other hand, vicarious accusation means that any individual can be detained

lawfully to accuse for the inattentive undertakings of a distinct individual. In this scenario

the supervisors were negligent and have overlooked the instructions for the staffs. But

the management of the TAM’s college will be exposed to blame because of vicarious

liability doctrine.

The administration turned down the compensation payment to the worker because he

was not following the principles of the TAM’s college. But under the vicarious liability

doctrine an employee may be defective but TAM’s management will be lawfully to

accuse for the staff’s incorrect doing.

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Conclusion

TAM’s college have dreaming of becoming the best educational institute within the UK

and for this objective they were signing up marketing agencies and law firms to make

the institute an all in all educational institute in UK. According to the scenarios NAMS

marketing firm were unable to respect the terms and conditions of the contract with

TAM’s college and faced Legal actions. TAM’s college also had to face lawsuits

because the management has denied the compensation to the employee who got

injured.

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References

Chen L., Law S. and Lee S. (2003) ‘business contract- the laws and regulation in

practice’– an empirical study, Business contract, Vol. 24 Issue 3, pp.299-318

Collins, Hugh. 1999. Regulating Contracts. New York: Oxford Univ. Press.

DiMatteo, L. A. 1998. Contract Theory: The Evolution of Contractual Intent. East

Lansing: Michigan State Univ. Press.

Emenike, E.U.I. (1989). Safety Measures associated with Physical and Health

Education Journals. Vol. 3, No. 1, vol. 48, no. 1, pp. 54-82.

John W. (2009) ‘Business contract and negligence in practice’ Journal, Vol. 7, No. 3, pp.

5-18

Kennedy, R. D. & McMullen, S. Y. 1968. “Contract Negotiation and Contract Theory”,

Home Wood, Illinois: Richard D. Inrurin.

Leibee, B. C. (1976). Tort Liability for Injuries to employees. Organisation and

Administration. Philadelphia W.B. Saunders Company Journal Of Tort Law ,vol.

18, no. 1, p. 1.

Marsh, P.D.V. 2001. Contract Negotiation Handbook: Burlington, Vt: Gower

Myer, J. W. 1978. “Negligence in Contract and practice”, Delhi: Prentice Hall of India,

3rd edition.

Okeke, C.N. (1988). Some Legal aspects of Organizations. A paper presented at a two

day conference organized by the National Sports Commission, Enugu, vol. 13,

no. 5, pp. 707-719.

Roberts, M. & Zahay, D. 2012, Laws and Regulation in practice in Business, 6th Edition,

Wadsworth Publishing Co, Belmont, USA.

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