Critically examining the contracts and contracting profess
The contract is an agreement between the people and parties for providing the services and exchange payments for the services provided. The contract can be verbal or written in form. The contract law provides a legal framework to enforce the contract under the existing judicial laws. In society every day there are several contracts made with or without knowing we are entering into a contract. For example buying of bread and coffee also form the contract as well as buying a bus ticket to reach a destination. The contract also applies for millions pounds for executing a construction job. The contracts fall under the category of case law and it is assumed that contractual obligations are in general are self imposed. The judicial courts are still taking a laissez faire philosophy under the contract law. The written contracts between different business parties are legally valid. The remedy instruments are made part of the contract in case a party breaches the terms of the conditions of the contracts. Contracts and contract laws are evolving with changing societal and business environments (Atiyah 1995). The contracts also sometime sensitive to the cultural aspects of the countries and sometime cater to religious sentiments of the society.
The Olympic Games are held in London during 2012. The Olympic Games are organized every 4 years and is the largest international event. It attracts several million people across globe to the hosting country. The hosting of Olympic Games is matter of pride. The performance of the country in preparations and hosting the games gives long lasting impressions about the country and its commitment organization of games and mega events. The UK Government established an autonomous body of London Delivery Authority to oversee the construction activities for the venues. The London Olympic Games Organization Committee (LOGOC) has overall responsibility of organizing the games. The Budget for the London Olympic Games is about £7.5 billions. There are hundreds of contracts administered by ODA to different companies across different sectors. These contracts are business contacts in written nature and bound the UK laws.
In this paper we will critically examine the contracts and contracting profess. The different steps involved in administering the contract are greatly explored. The issues in executing the contracts are explored in relation to ODA. There liabilities and law of tort are dealt in detailed. All the liabilities and law of tort are discussed in the context of ODA. A typical case situation also examined for possible legal remedies for the ODA.
2.0 Components of Contract
The contract is a legal document written between different parts to meet the criteria of the contract. The contract should be involve certain elements to meet the criteria of contract which meets the legal relationship between the two parties. There contract should include
Offer: Is a serious proposal from party to other party. If the offer has been accepted it will lead to the contract. As per the postal rule an offer can be withdrawn before acceptance. The offer will lapses in case it is not accepted within the stipulated time, and counter offer made others.
Acceptance: The acceptance of offer made by other party should meet the following criteria
The offer must be communicated very clearly or should be indicated by human action.
The offer should take the form by which the contract specifies the offer.
The offer must be unconditional and without any changes.
Once the offer has been accepted there are no changes allowed in the contract, otherwise specified in the contract.
Consideration: The considerations of some value in the form money and/or assets which are given and received different parties. In the contract law thinking about something does not constitute any value.
3.0 Types of Contracts
Before we getting into detail about the contracts According to law all contracts are treated and created equal. While some of the contracts are written in advanced legal terminology and the length of contracts will be hundreds of pages in length, there are some basic contracts which are written in plain language, which consists of one page. Some contracts are made between large corporate businesses and their suppliers while some contracts are used for personnel matters. There are several different types of contracts that serves purposes in a our daily life such as fixed-price contracts, cost-reimbursement contracts, incentive contracts, indefinite-delivery contracts, time and materials contracts, labour hour contracts, letter contracts, multi-year contracts, and option contracts. All these contracts differ from each other; they must meet all the requirements.
There are several types of contracts depending upon nature, validity and scope. The important contract types are explained in following sections.
Express Contracts: These types of contracts are made between the two parties of expression. The terms and conditions of contracts are specified by either verbally or written during formation contract. The definite offer is accepted by other party in explicit way and legally bound to terms of contract.
Implied Contracts: These contracts are implied by the law for both parties of the contracts. The implied contracts have several obligations arising from the mutual agreement and promise of intention, which may or may not express verbally. The implied contract can’t be treated as implied in the law because it lacks required elements for a proper contract. The implied contract to develop a contract, there should be transaction should happen.
Quasi Contracts: The Quasi Contracts are contracts which are implied by the law. These contracts depend on the reason for their existence.
Executed Contracts: These contract in which there are no transactions left out to be executed by all parties. In these contract some amount work or transaction is remaining to be completed in the future time.
Performance Based contracts: The contracts are executed based on the performance of respective obligations. These are legally biding contracts on both parties.
Executory contract: These are the contracts in which both parties to yet to be executed their respective obligations.
Legal Competency: The first and foremost element of a contract is that demonstration of legal competency should take place between two parties. At the same time they should meet the minimum age requirement of 18 years or above in order to make legal contract for their business or personnel.
3.0 Business Contracts
The business contracts are popular form of contracts between the parties which engage in the provision of services. The ODA has entered into hundreds of business contracts with companies to provide the services and construction of the facilities. The business contracts are written as per the law and agreed up on by both parties for specific terms and conditions. In case of breach of terms of the contract by any of the party, there are legal and financial instruments to address the breach of contract (van Gerven, et al, 2001).
There are several terms in the business contracts which are explicitly written in the contract and should adhere to them both parties. The terms of the contracts are the one which shapes the contracts. During the development of contract there are several proposal which are made by different parties and which are not entered into the contract are called representations. The representations are not legally binding either party. The verbal statements and promises given either party does not constitute the terms of the contract at most they are representations. However, the verbal statements by highly skilled person in the domain for which contract is developed, becomes the terms of the contract. Whereas the statements made by person to skilled person does not constitute terms of contract. The important terms in a business contract are explained in the following sections
Conditions: The conditions forma an important part of the legal contract. Any breach of the conditions by a party, can result other party ending the contract or imposing the fines and levies. In some cases other party may continue executing the contract and sue the losses on the party which breached the conditions of the contract. The typical situation is not delivering the service in stipulated time period. The ODA will impose financial fine on the contractor for breach of the conditions of the contract. However, the contract execution is not stopped.
Warranties: These are promises and exemptions made by parties during the time contract. However it does not form part of the contract. If there is a violation of the warranties by party, the other executes the contract and sues the financial damages. The warranties are generally in terms of lower tariffs of energy, no toll charges and exemption from VAT etc. These are the conditions agreed during the time of contract
Implied Terms: In addition to explicit terms there are things which are implied in nature. The implied terms can either virtue of law, custom and statue. The implied terms are also enforceable by judicial law.
Innominate Terms: These are not clearly defined terms not representations. These will be considered in the context of the degree of severity of breach and damage. If the damage is severe generally it is considered as terms of the contract for less degree of damage there are considered as representations.
The ODA has good track record executing the business contracts. The ODA is financially guaranteed by UK government if there are financial problems. Also the ODA has special powers to construct, own and sell the lands and the Olympic facilities. One of the frequent breaches of contract is not meeting the service level agreements and the time considerations. There are situations where contracts are renegotiated in the changed circumstances.
4.0 The Torts
The Torts are defined as the wrong doings by parties which are involved in the contract process. The act of tort results in the breach of contractual terms and may result in financial and other damages. In many of the circumstance the tort is not criminal in nature. The tort can span many are area including product liabilities by manufactures, personal accidents, environmental and ground water pollution. The party or person who suffers the damages can use the law of tort to sue the other party for damages and may press charges for wrong doing. There are several categories of torts depending upon the nature of the wrong doing by the party. The torts are broadly classified as strictly liable torts, intentional torts and negligible torts (Cooke, 1997).
The intentional Tort: A person intentionally causes a wrong to result damage to other person. The typical examples of intentional torts are battery, false imprisonment, assault.
The battery involves a person intentionally makes close contact wit body and causes damage to other person. The examples are punching someone in the fact, grabbing the clothes, doing an accident with car. Even an omission can be considered as battery.
The Assault involves placing someone in imminent contact For example punching someone in the face and threading to attack with weapon.
Imprisonment involves confining some one in fixed boundaries. The person, who is confined, needs not be aware that he is imprisoned.
The negligence torts: Most of the torts in the form negligence. The main objective of this tort is to pay compensation to aggravated party. Under the tort of negligence not only the personal accidents are covered but also the economic losses (Harvey and Marston, 2000). The party is liable any damaged caused due to his or her negligence. However the injured party should prove that all elements of negligence present.
Defamation Tort: A person or party may undertake a defamation campaign another person or organisation by mean of writing, audio and video campaigns. The defamation can damage the dignity and reputation of the people which may result in psychological and/economic losses. The suffered party can press charges for defamation. However the claimant should prove that defendant will fully acted and caused the damages. The example is XYZ Company uses bad campaign against ABC organisation which resulted in economic damages to ABC Corporation. The ABC Corporation should prove the charges against XYZ Company to be successful for claiming the economic damages (Brousseau, and Fares, 2000).
Statutory torts: These created by the elected legislator to impose fines on private and public parties /companies. The most popular statutory tort is product liability, where manufacture is responsible any damages to the consumer by using the product for intended purpose. The consumer laws also come into this category of torts, where consumer has the right to sue the service provider, for losses/damages suffered while receiving the services.
Economic Torts: These torts are in place to protect the parties in the time unexpected events.
5.0 Tort Liabilities
Due to the torts there are several types are torts. The two important stakeholders of the tort liability are claimant(s) and defendant(s). There can be one or several claimants as well as defendants. Tort liabilities are many types depending upon the situation.
Strict Liability: These liabilities which does not require claimant has to prove that defendant has violated one or more rules of tort. Under this liability defendant not any intention and need not known the damages caused to claimant. These acts are so dangerous any degree of care may not prevent the damage. The product liability one such example, manufacturer is liable to consumers who suffered damages to use of the product. The customer is not expected to know about the risk involved while using the product.
Vicarious liability: The Vicarious liability is that one party is liable for torts of another. The Vicarious liability is most often occurs that employer is responsible for the actions of employees. The thirds party is held liable for torts of the employees. Though, it may seem unfair to hold responsible for actions of others. It is quite logical to make liable the party which has control over person/party which committed the tort. However it should be proved that tort happened while performing the duties which are supposed to carried out under the agreement. The torts are which are wrongful and authorised by employer or unauthorised way of doing things which are allowed by employers.
Joint and several liabilities: The Joint and several liabilities are applicable to several people. Even though of the member commits the tort, plaintiff can sue all of the defendants. In case claimant perused only on defendant and recovered for damages, he needs to peruse with all obligator for their share of contributions for liability. The joint and several liabilities are very common in the business partnerships and property ownership.
There are several companies which entered contractual agreements with ODA. Any of torts committed by ODA or companies will have various levels of liabilities and responsibilities. Each of the case and tort should be examined on case by case to ascertain the damages .
6.0 Negligence Tort
The tort of negligence is one of the common torts. The acts of negligence by one party may result in severe damages to other party in terms of physical injuries as well economic losses. There are different of Negligence:
a) Malfeasance: Things which should not be doing, but the party /person is doing. For example, instructing the students prepare mix of unknown solutions, which may cause the exploitation and damage to people and property.
b) Misfeasance: Doing an activity in dangerous and improper way. For example, driving the car during night time without headlights.
c) Nonfeasanc: This is not performing the duties, which should have performed. For example, not following the safety manual while operating a heavy vehicle.
The tort of negligence can result in many damages and the defendant is liable physical/personal injuries, property damage, nervous shock and economic losses
The nervous shock is traumatic disorder. This can happen by watching dangerous event or an accident. In this situation claimant need not suffer any physical injuries. The clamant is suffering recognised mental condition more than the distress and/or stress.
The economic loss can be property damage and pure economic loss. The courts tend to award only damage to the property.
Tort of Negligence Applicable at ODA site
At ODA site an employee taken a cup of tea and became ill. The onsite medical team examined the employee for nausea. They advised that plaintiff should go home and visit the GP on the next day. The plaintiff went to the GP and it was known that employee passed away after 5 days of reported incident. The next of kin of employee sued the ODA for tort of negligence.
The employee has been assumed of the risk, understanding the risk with associated activity. There is also aspect of the contributory negligence from plaintiff which has contributed to the death. In this scenario one should examine the actual cause of the death of the plaintiff. If there having the tea contributed to the nausea of the plaintiff, if the plaintiff has the history of nausea and having the cup of tea is not aggravated the problem the ODA is not responsible for the damages. At the same there are terms of conditions by which the employee on site. There is also element of the medical staff that may have seen the patient.
This case may or may not come under the tort of negligence as per as ODA is concerned. The only factor which can go against the ODA is breaching the duty of care to employee. However the employee only consumed the cup of tea at the ODA site. It should be established that cause of the death is due to exclusively because of consumption of tea at ODA site. If that is the case ODA is liable, because it is primarily responsible for the death of employee. Again it should be examined the relationship between nausea and working condition at ODA. If the working conditions are responsible for nausea and this resulted in death, the ODA is liable by law.
There can be also negligence from medical staff at ODA site. They did not take enough care to protect the employee. However the employee died after 5 days after the incident. It is not obvious that the medical staff or GP responsible for the death. The ODA is not fully responsible for the loss of the life. There are several other factors involved in leading up to death of employee. There should be shared liability from all parties concerned. The coroner report should establish the real cause of the death. It also brings out any negligence from medical person at onsite.
The common law plays very important role in every day life of the people. We enter into several contracts in day to day life even realising that we are entering a contract. In this study the contracts are fully explored in terms of essentials of contracts and types of contracts where they are suitable. The ODA participates many of the business contracts while preparing the facilities for London Olympics. The different business terms and conditions are full explained in the context of ODA and London Olympics. The law tort is applicable to many of for many of the contract. There different torts are discussed in detail. The damages arising from torts are fully explored. The tort of negligence is the important one and is the more popular one. The damages arising from tort of negligence are discussed and applied to ODA.