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Published: Fri, 02 Feb 2018

Common law


As a student of HND in Business, must have to learn about the law and know the rule of different categories of law. In this assignment, it is mention the various type of rule which help us to overcome in business as well to learn about laws. As mention in question one, there is an offer, invitation to treat, acceptance, counter-offer and revocation. Where as in the second question there is a postal rule that shows how it is use in law and show different case laws which falls under postal rule. First and second question is under the rule of contract law. However, the third and fourth question is under tort laws. The third question shows the concepts impact on employer liability in the tort law and also the vicarious liability and occupiers liability to visitors.

Common law is a law and the rights and protections formed under them are also created by judges’ decisions in court. This is known as Common law has its basis in precedent – this means that judges follow decisions made in similar cases to create a consistent, just and fair system. However, there are cases when the circumstances or facts of the case are very different, have not arisen before or are viewed by a senior judge as not reflecting current society, so that a decision is made to create or amend the law.



Answer 1

In this question, there is two people named Bill and James is going to deal about buying and selling. As show in the question, Bill said to James, “I may be prepared to buy ten televisions from you for 2000”.

There are three core elements to the formation of a contract. An agreement (offer and acceptance); an intention to create legal relations; and consideration. To form a contract there must be one party (the offeror) needs to make clear and certain offer and other party (the offeree) needs to communicate their unequivocal acceptance.
There are two kinds of contract. Firstly, a bilateral contract, here both parties assume an obligation to each other, by making each other a promise to do something. And secondly unilateral, here one party proposal in term which call for an act to be performed by one or more other parties. A unilateral offer does not involve mutual promises – only one party, the offeror, assumes an obligation.

Elliott & Quinn (2007) “Contract Law”, 7th edition, chapter 1

Invitation to the treat: When parties negotiate with a view to making a contract, many preliminary communications may pass between them before a definite offer is made. One party may simple respond to a request for information. That party is then said to make an invitation to treat. An invitation to treat is not an offer.

G.H Treitel (Eleventh edition) “The Law of Contract”

The general rule is that price marked of goods displayed in a shop windows are not an offer for a sale but it is an invitation to treat. There is a case which is relevant to this rule, (Fisher v Bell, 1961, 1 QB 394), another case is between (Lasky v economy Grocery stores, 1946, 163 ALR 235). (Elliot and Quinn, 2007, Contract Law, 7th edition, chapter 1).

So in the above case Bill and James, Bill may be prepared to buy ten televisions from you for 2000, thus it directly shows the invitations to treat from Bills.

Offer: An offer is an expression of willingness to contract on specified terms, made with the intention that is to become binding as soon as it is accepted by the present to whom it is addressed. A person making an offer is known as offeror and the person whom offer is made is known as offeree

G.H Treitel (Eleventh edition) “The Law of Contract”

An offer must be clear and certain. In the case of Bill and James, here James had made an offer not a counter offer. As it related to unilateral offer. To support my answer here are some cases related to it, (Carlill V Carbolic Smoke Ball Co (1893) 1 QB 256), (Errington V Errington and Woods (1952) 1 KB 290). (Elliot and Quinn, Contract Law, 6th edition, p.12).

Counter offer: A counter offer is an offer made in response to a previous offer by the other party during negotiations for a final contract. It is a new offer made in response to an offer received. It has the effect of rejecting the original offer, which cannot be accepted thereafter unless revived by the offeror. Making a counter offer automatically rejects the prior offer, and requires an acceptance under the terms of the counter offer or there is no contract.



There is a case which is between ( Hyde v Wrench, 1840, 3 Beav 334).But where a counter offer is accepted then its terms and not the terms of the original offer become the terms of contract.

In the above case, there is no any counter offer from any parties(Bill and James).

Revocation of offer: The offeror may withdraw his offer at any time before acceptance. However, once a valid acceptance has been made, the offeror is bound by the terms of his offer. An offer cannot be revoked after acceptance. In other word, no unilateral withdrawal is possible once the contract is formed. Payne v Cave (1789) 3 Durn & E 148and Rouledge v Grant (1828) 4 Bing 653 are the related case law for the revocation of an offer.

Communication essential: Revocation is effective only upon actual notice of it reaching the offeree. Where revocation is communicated by the offeree and not from the time of posting. Bryne v Van Tienhoven (1880) 5 CPD 344 is related case laws for communication essential.

Elliott & Quinn (2007) “Contract Law”, 7th edition

In the above case of between Bill and James, James revokes his previous offer.

Acceptance: In contract law, an acceptance of an offer is an indication, express or implied, by the offeree made whilst the offer remains open and in the manner requested in that offer of the offeree’s willingness to be bound unconditionally to a contract with the offeror on the terms stated in the offer.



Acceptance must be unqualified and must correspond with the terms of the offer. Hyde v Wrench (1840) 3 Beav 334. This is sometimes called ‘the mirror image rule’. Not all the transaction lend themselves to an easy analysis in term of ‘offer’ and ‘acceptance’. Where an offer is made to a particular person or group of persons, no valid acceptance may made by a person who isnot an offeree.like the case laws of Boulton v Jones (1857) h& n 564.

Answer no. 2

The general rule for acceptance by post is that they take effect when they are posted, rather than when they are communicated. The main reason for this rule is historical, since it dates from a time when communication through the post was even slower and less reliable than it is today. Even now, there is some partial purpose for the rule, in that it is easier to prove that a letter has been posted than to prove that it has been received or brought ti the attention of the offeror.

Elliott and Quinn 4th edition Contract law

The postal rule was laid down in Adams v Lindsell(1818) & ALD 681 and can be seen as a further exception to the rule that acceptane has to be communicated to the offeror. RE London and Nothern Bank, ex p. Jones (1990) 1 Ch 220 is another case law related with this matter.

A factual illustration of the postal rule can be seen in the case of Henthorn v Fraser (1892) 2 Ch 27. F. The rule applies even where the acceptance is delayed or lost in the post: Household Fire and Carriage Accident Insurance Co. v Grant (1879) 4 Ex D 216.

Elliott & Quinn (2007) “Contract Law”, 7th edition

Application of the postal rule: Use of the postal rule must be reasonable. Only when it is reasonable to use the post to indicate acceptance can the postal rule apply. If the offer does not ditate a method of aceptane, appropriate methods can be interred from the means used to make the offer. An offer made by post may generally be accepted by post, but it may be reasonable to accept by post even thought the offer was delivered in some other way. In Herthorn v Fraser.

Elliott and Quinn 4th edition Contract law

Avoiding the postal rule: It is always open to the offeror to redress the imbalance of the postal rule by requiring actual communiation, so that he will only be bound if the post acceptance reaches him,not from the moment it is properly posted. This possibility was considered by Bramwell LJ in Household Fire Insurance v Grant (1879) and Holwell Securities v hughes(1974) 1 WLR 155.

Elliott & Quinn (2007) “Contract Law”, 7th edition

Revocation of a posted acceptance: It is debatable whether a posted acceptance should be capable of revocation by the offeree if he were actually able to manage to communicate the revocation to the offeror before the latter had received the acceptance. To do so is clearly contrary to the postal rule which would deem the contract concluded once a communication has been properly posted.

One view is that, the offeree should allowed to do so if there is not any harm or disadvantages to the offeror who will merely act on the first communication he receives. While another view is that, there is possibility of revocation of acceptance gives the offeree the best of both worlds. The offeree could accept the contract for share by posting a letter. If suppose the market price of shares fall down during the day then he could revoke his offer by over taking the posted acceptance. Some cases releted to revocation. Dunmore v Alexander, 1830, 9 Shaw 190), Wenkheim v Arndt (NZ) 1 JR 73 (1861), and Dunmore v Alexander(1830) and Thomas v James (1855).

Elliott & Quinn (2007) “Contract Law”, 7th edition

Answer 3

The following concepts impact on employee liability in the law of tort with a case laws of (i) Viacarious Liability and (ii) Occupiers Liability to Visitors with reference to case law.

Viacarious Liability: There are a variety of legal doctrines under which one person can be liable for the tort of another. The mist importance these is vicarious liability. This arises in situations where tort law fixes liability on a person or organization other than the person who directly causes the harm; i.e. where somebody becomes viacariously liable for the negligence.

Who is an employee?

A distinction is made in laws between employee and independent contractors. This a question for the courts to decide, and does not solely on how the parties describe themselves. Traditionally this question of status was decide by the control test; the extent to which employer controlled not only the quantity and nature of the work done, but also the manner in which it was done. Here are some case laws releted to it Yewens v Noakes (1880) 6 QBD 530,Market Investigations Ltd v Minster of social security(1969) 2 QB 173 and Ready Mixed Concrete v Minister of Pensions(1968) 2QB 497.

The course of employment:

an employee will be in the course of employment where the act is either expressly or implied authorized by the employer; an unauthorized way of doing an authorized act, which is incidental to what the employee is to do. An employee is outside the course of employment if s/he is engaged a ~frolic of his/her own’. And case like Storey v Ashton(1869)LR 4 QB 476 and Williams v Hemphill(1966) SLT 259.

Employee Carelessness:

Simply if the employee acts carelessly this is unlikely to take the employee outside of the course of employment. Here are some cases Bayley v Manchester and Century Insurance v Northern Ireland Road Transport Board (1942) AC 509.

Express Prohibition:

The employee will still be acting within the course of employment only if the prohibition restricts the mode of performing his/her duties, rather than their scope. The famous to relate the express prohibition is Rose v Plently (1976) and Limpus v General Bus Co(1862) 1 H.

Occupier Liability:

The occupier Liability Act 1957 applies not only to land and buildings but also fixed and moveable structures, including any moveable things like vessel, aircraft etc. If any person who has a sufficient degree of control over premises (Wheat v Lacon) under the occupiers owes a duty of care to all lawful visitor. Express or implied permission defined as a lawful visitors i.e. invitees, licensees, people entering under a contrat, people with a legal right to enter. Trespassers do not fall within this scope. Here are some releted cases Revill v Newbury, Hariss vBirkenhead Cooperation etc.

States that an occupier has a duty of care to ensure that all in all circumstance visitors will be reasonable safe in using the premises for the purpose for which he is invited or permitted to be there for. An occupier should prepared for a children to be less careful than adults. An occupiers can experts who come on his property to guard against inherent risks.


It applies to cases where plaintiffs have, through their own negligence, contributed to cause the damages they inured as a result of defendants negligence. Here are some related to this Simms v Leigh RFC, White v Blackmore, Burnett v British Waterways etc.

Occupier’s liability Act 1984 applies mainly to trespassers and traditionally no duties were owned to trespasser except when intentional or recklessly inflited harm. Revill v Newbury is the related case law of it.

Answer 4

There are three main elements that have to be met successfully bring a claim in negligence:

A Duty of Care
A Breach of that duty
A Casual link between that Breach and Harm suffered by the victim

Duty of Care:

The duty of care concept has at least two purposes. The first is to provide an overall framework for the huge variety of situations in which liability may arise. For centuries the law jas recognized relationship in which one person owes a duty to another. What was lacking was a general principle of whih the various cases were illustrations. The second purpose is one of limitation, setting the boundaries within one person could be liable to another for the consequence of careless behavior. Here are some case law Donoghue v Steveson (1932) AC 562, Caparo v Industries v Dikman(1990) 2 AC 605,Anns v Merton London BC(1978) AC 728 at 751.

Scope of the duty of care

Even if the defendant owed a duty of care to some people, there remains the question of whether the particular claimant was within the scope of that duty. See Bourhill v Young [1943] AC 92; Palsgraf v Long Island Railroad Co (1928) 248 NY 339; Haley v London Electricity Board [1965] AC 778: Urbanski v Patel (1978) 84 DLR (3rd) 650; Goodwill v British Pregnancy Advisory Service [1996] 2 All ER 161.

A Breach of the duty:

As a practical matter, this is very important. It will often be a major Issue between the claimant’s advisers and the defendant’s advisers or insurers in attempting to reach a settlement. If there is a trial, much time may be spent on deciding what actually happened and whether that amounted to negligence on the defendant’s part. In is a question of fact. It is however a question of fact that has to be answered within a structure of legal rules. You cannot be expected to decide in an examination answer whether or not the defendant was in fact negligent, but you can be expected to identify in a question the respects in which the claimant could argue that the defendant has been negligent and also explain how the question will be approached within the structure of legal rules. Here are the some cases

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