Key Elements of Law in Business Contracts
In this assignment the basic information regarding the business activities will be viewed. The main use of this assignment is to apply theoretical knowledge to daily life in business practice. We will also come to know about different factors in the law. Any kind of legal aspects is always important for business and depending on the structure of the business they get the legal consultations. Law knowledge not only allows to see what is legal or illegal and not to break law but also helps them to securing from the fraud or illegal actions. This assignment deals with the key elements of the law in which main parts and various types of different business contracts will be considered. Offer and acceptance and intention and consideration such kind of rules will be viewed in these situation.
Task 1 Understand the essential elements of valid and legally binding contract and its role in business context
Types of business agreements (P1)
There are three types of business agreements in business.
Unilateral Agreement –It is a type of agreement in which one party takes a promise which is not is taken by the other party i.e. it is an unsecured promise which is been taken place between two parties. It is also been said as a one sided agreement between the offeror and the offeree. The party who promises for exchanging the good is an offeror and party acting on the offer is an offeree.
Bilateral Agreement – it is a type of promise in legally bind promise or agreement is there between two parties. Most of the business transection goes in this method in which seller exchange with the promise to deliver product and services. Sale of a product can be said as a bilateral Agreement in which seller is agreeing to sell and buyer is ready to buy the product.
Partnership – It is a type of agreement which is been made between two parties or the partners. It is a formal document which deals with the general terms, capital, profit and loss etc. It even includes name of the partnership. Purpose and terms of the business. Whatever the return there will be in the business will be equally bared by the partners.
The following are the key elements which is required in the valid contract.
Proposal and acceptance
Party’s capacity to contract.
Agreement should not be void.
Written and registration.
Legal relationship. etc.
For more details see appendix 1
Offer and acceptance (P2)
All the contractual agreement is been analysed as an offer and acceptance. One party offer to the other party and other party need to accept that offer from him and the offeree creates the binding contract. There is a big difference between offer and the invitation to treat which is needed to considered. An offer is said as a promise to do or not to do something which is been accepted by the other person. When offer is been accepted by the person then it provided the three legal requirement for the contract to be made out which is only been accepted by the one person who knows that it exists.
Usage of modern technology and the enforcement of law then we must consider the ability of thee criminal. To use that technology special training need to be provided to the people as it is also one of the biggest challenges to achieve. If there is a positive aspect then there should also be the negative as they might be excess the information just a hoax. It is type of trick to make people believe what is not there but it can be said as a use of modern technology creating a good impact in controlling the criminals.
Consideration can be said as what the offeree gives back to the offerer in return. E.g. A offers to sell car to B for £2000 and b agrees to take that car for that amount. Consideration needs to be flow through the offerer. Every contract requires a consideration but in case of deed than the rules may not apply. It can also be said as a right. Benefit going to one party to another. As long the consideration is there then there will be no question from the court regarding this issue
It can also be said as a promise for price paid for the other parties. It should contain something which should be of the value except money. Consideration is also some right benefit or interest of some for the responsibility given which was undertaken by the other party. Till the consideration exist the court will not ask any question from it is of some value, as it is should also not be illegal or impossible to perform.
Everyone who enter into the contract is been bounded by it. It is hard for the person to claim that he is not been bound by the contract. If you gave the sign that you have been bound by the contract and later you avoid your responsibilities by showing no intention of legally bound. You will be considered as a necessary intention.
Assumption in intention
The law simplifies the issue of intention in which it is been assumed that both the parties are been legally bound as compared to the contract between the friends or the relation is not been said as a legally commit. It can also be reversed in which both party need to make sure that they have been bound by the contract. Even in this case it is also been find as invalid if any one party lack with the necessary intention. In the recent time or the modern contract is not an issue but it’s important that if you are entering into a contract with the friend or the relation then the business relationship is needed to be cleared to avoid problems.
Binding Contracts (P4)
There are many people who are aware of the binding contract which is been prepared. The one of the important and the best method is to prepare it with the mutual understanding of the both the parties. Now there are many different form of communication to contact to the different people who can also been considered as a binding contract. With the offer and acceptance is been implied then the breech can be disputed. There are many different type of binding contract everyday. One of the simple processes of purchasing some items is to have a legal binding contract between them. There are still many laws which are not been set out in written which include sale of property, share and the property rights.
Task 2Explore the significance of specific terms in a business contracts
Term contracts (P5)
Term contracts can be said as a contract which is been made for the specific time duration to achieve the organisational goal or the target which the organisation needed to achieve. Term goal is been divided into the phases which is been described as follows.
Fixed term contracts.
Fixed term contract are the contract for the specific time period until the specific task is been completed. There are many features of the fixed term contracts.
Lasts for the specific time which is been set in advance.
It terminates with the completion of the specific task.
Finish up with the event which does or doesn’t take place.
E.g. As a shopkeeper willing to employee someone to look after his business for the Christmas month only or hiring someone in place for the person who is in leave for the specific duration of period. Fixed – term contract also gives advantage of bringing the skills and labour when they are required. But it is equally important for organisation to consider that until there are specific justification the fixed term contract person must be treated as same as the contracted person. There are some features which are described as follows.
They need to pay them a same wage as the permanent are getting.
Same benefit packages.
Equivalent pension scheme.
Same opportunities to apply for the vacancies for the permanent post in the business.
Standard form of contract (P6, 8)
It can be said as a contract between two parties which not allow any negotiation. It is basically been taken place between unequal bargaining partners like contract which is been given by the sales person of the multinational cooperation. It has nothing which is unforceable by the law; insurance contract and the lease are also the kind of the adhesion contract which is valid. As many of them are unconscionable then and they are unfair even court will refuse to enforce them.
They are also been said as a prepaid contracts which is already been set.
As per the standard contract there is no negotiation which is been normally printed so that so that some few blanks can be places in it like name and signature.
It is also a provider of standard contract which have own conditions.
Standard contract contain many terms or the straightforward documents which is simply designed with dates and subject matter with the requirements.
Important features is as –
It is been written with the favour of the party which is representing them.
Often it is been used by the large terms and also been used as a long range of business organisation.
Attempt to limit liability of the damage.
Contractual liability (P7)
It can be described as liability which doesn’t rise with the negligence but assumption under the contract. This type of liability is very critical in terms of insurance and the risk management industries. It is a business agreement for one party to assume the liability of other which is also considered as another harmless from one project to another. It is also usually provided with the commercial liability insurance.Other than the insurance the contractual liability has a broad meaning which is been upheld in the court e.g. if you have pledged to build a good for £600 and collecting £300 in the start of the job then the higher comes project can be turned and they can turn you in the court and you will be legible to pay compensation to the other party.
Task 3 Examine the role of the law of tort in business activities assessing particular forms of tortious liability
Occupier premises (P9)
Occupiers’ liability in a field of tort law is a statute, which concerns with the duty of care for those who occupy the property. It also deals with the liability which deals with the accidents caused by the dangerous conditions. The occupier liability act 1984 which tells about the difference between visitor and the trespasser.It is an act of the UK government which covers the occupier’s duty to trespasser. The act represents the duty of trespassers along with the visitors which provide the duty which is required when occupier have an actual knowledge of the danger which is there to exist. It only allows injured claiming for the death or the injury, not for the damage of the property.
Vicarious Liability (P10)
It can be said as the responsibility you have for the action of your workers or other who do their work. In case if these actions is been found unlawful then both the person who is complained may be responsible for it but the steps which is been followed for preventing the behaviour need to be presented
A sexually harasses of one worker to the other with different methods.
In your shop your worker refuses to work for the specific task.
In this case the complaint can be filed against both worker and the employee.
"The doctrine of vicarious liability imputes liability to the employer or principal of a tortfeasor, not on the basis of the fault of the employer or principal, but on the ground that as the person responsible for the activity or enterprise in question, the employer or principal should be held responsible for loss to third parties that result from the activity or enterprise."
Source - John Doe v Bennett 2004 SCC - http://www.duhaime.org/LegalCitations/S/SCC.aspx
Itslegal doctrines which assign injury to a person who did not cause the injury but who has a legally related to the person who did act negligently. It is also referred to as legal relationships that can create negligence include the relationship between parent and child, Husband and Wife, Owner and driver, and employer and employee.
Doctrine of respondent is based on the employer-employee relationship. He makes the employer responsible for the part of an employee in relation to those to whom the employer owes a duty of care. For respondent superior to apply, Employee's negligence must see within the scope of their employment.
Health and safety Implications (P10)
Many practical study activities, like laboratory experiments, the workshop equipment’s and trips, have health and safety aspects for all students.Risk need to access and address the source so that the implications of the entire student can be covered, specially the one with impairments and additional needs. With the practical learning environments where there are many additional health and safety issues for students with particular impairments and teacher are there to impairment it.
Health and safety shouldn’t be used spuriously to avoid making reasonable changes.
There should be incant but the adjustment needed to be made, it is not reasonable, which is not much reasonable which is not for health and safety either for the disabled person.
Health and Safety at Work Act need institutions for production and carry assessment which have a list health and safety policy and to carry out risk assessments that list any risks and the measures which can be taken to identify the risk. The risk assessment process carried out to with health and safety that can even provide opportunity to consider comply with health and safety which is needed by DDA.
Task 4 Understanding and apply the elements if the tort on negligence.
The law of torts (P11)
It is the part of the English common law which has developed continuously since the time of Norman. Academic don’t even believe that is it a law of tort or the law of torts as it applies the general rules which is relevant to all the parts. It recognises the distance aspect and implies that some parts have something in common. Although some trots is been created by the statue. Their origin is been tracked in the fourteen century word trepans was given legal meaning it has today. It was one of the medialforms of action. The distinction can be seen in the law as action is worth out the proof of the damage.
Strict liability is also known as absolute liability is for legal responsibility for the damages or the injury even for the person who was not even at the fault. It is also applied in certain activities in the tort like holding employer liable for tort of her employees. Today for this reason, certain activities may be conducted if person who is conducting want to insure people against the harm. In a tort strict liability is also applied if the damage is been caused by the animal as they are not been governed by the consciousness and very much capable of doing mischief if not restrained by those who have duty to restrain them. It is also one of the most important general rules for all the keeper of the animals so that they strictly follow the rules and they did not trespass the property of others although they are not liable for pets trespass unless strict liability is been imposed by the statute or the ordinance.
Occupier of premises has a duty of taking care and responsibility of all the circumstances of the case in which it is also reasonable to see that person. Whether the person personally enters in premises then it is basically safe for the premises. The duty which is imposed is to take careofthe environment and to make it safe
This duty of care is applied in relation on the condition premises, activities on the premises, or conducting the third party premises.
Their duty is to take reasonable care in every circumstance to make it safe. That duty remains same, but the factors those are relevant of what constitutes reasonable care will it’s very important for face necessarily be very specific to each fact situation, such care as in all circumstances of the case is reasonable.
Elements of tort of negligence (P12)
The main purpose of this lawsuit on negligence is to deter the careless conduct and encourage the responsible behaviour. It requires the elements which are described as follows.
A duty care between the parties – It is been owed by the people who have been reasonably injured while their duty is not been observed. Appraisers owe duty of care for their clients according to their skills of the appraisers while determining to make a purchase or not and in that case it become reasonable for the appraiser to appreciate that and the duty is breeched the client can even suffer loss.
Breach of the duty of care – it is been decided by the court that duty of care which is been breached to the standard of care and choose to hold negligent party. It is been set to see how people would act in the specific, unique circumstances and it is always been determined in the context so there is no absolute definition for it.
Damages – In negligent act it is impossible to found that there is no damage in the successful action. They need to prove that they have been suffered by the loss which is been caused by the act. To decide this act the court will apply the ‘but for’ then the negligent act which is caused by the injury and if the loss wasaccrued then there would be no liability will be arise.
Practical application in particularelements of the tort of negligence (P13)
Duty - it is been obligation form the one person to another which is been flows from the social customs, philosophy and the religion. Duty constraints and channels behaviour is a responsible way for the fact that which is also provides for judging behaviour thereafter. Negligence also accesses human choice in engaging in the conduct as a proper or improper. As choices is been deemed as improper if there pre-existing obligations is there to avoid and repair carelessly inflict harms to others.
Breech – The next elements is misconducting itself by the improper act or the omission. This pre-existence of proper behaviour is to avoid the undue risk to harm to other person and their properties which bounce back to the duties. As society become more complex the general society becomes more complex and the care become necessary to govern everyday injury of the person or the strangers on the highways or wherever.
Cause in fact –There are some problems whose solutions are very much illusive then the cautions. In this case the cause and effect molecular actions, biological activities and the human choices are refraining and it is acting in the certain ways. Cautions provides the central negligence elements which links the wrong to the harm there are many people who are been killed any the road accidents every day, slip and fall and many other kind of accidents and other result it as a simple bad luck or the careless behaviour and victim themselves.
Proximate cause – It is though link to cause in fact which is separate elements. It is generally called ‘proximate cause’ which is different form factual causation of the issues with the elements which is been examined. It is always considered on the fact that every case has a mixed consideration of logic, common sense, policy and precedent.
Harm – It is the last elements of the negligence claim which is from the damage a plaintiff suffers from the result of defendant’s breach of duty. In this matter the defendant’s tried to be compensating for the plaintiff for harming improperly. It refers that as much as the money damages matters the law requires negligence tortfeasor to repair what the plaintiff loses in the proximate result in the defendant wrong
John Doe v Bennett 2004 SCC - http://www.duhaime.org/LegalCitations/S/SCC.aspx