Table of Contents
The law imposes obligations on parties under contract and tort of negligence. Both contract and tort of negligence fall under civil law and of one party brings an action against another party the claimant has a responsibility for supporting their claims against the respondent on balance of probabilities. The court determines the claim raised by the claimant, and it establishes the loss suffered by the claimant was not too remote and that it was caused by the defendant’s breach the claimant may be awarded remedies as compensation to the claimant and not as a punishment to the offender. This document examines the case of a contract of sale and tort of negligence. First, document examines if there was any contractual relationship between Fernando and Simon, as well as between Simon and Ali for the sale of books. Also, the paper will examine if Good Buys was responsible for the negligence of its employee for hitting Simon’s wife with a forklift truck. It will determine if there was any contractual relationship between Fern and Good Buys and if she could raise a tortious claim against the company. The defendant bears responsibility for the breach of contract or negligence action, and the law may require them to compensate the wronged party to the extent of the loss they may have suffered.
Contracts for the sale of goods
A contract is a relationship that subsists between two parties who have the intention to be legally binding. The valid contract involves various elements which include an offer, and acceptance of the offer, the intention of the parties to form a legal agreement, consideration, and both parties must have the capacity to contract. An offer is a manifestation of willingness by one party to form a legally binding agreement with another party. The acceptance of the offer by another party denotes the meeting in mind of the two parties under the stipulated terms of the contract. Considering is anything of value exchanged between the parties or detriment suffered by one party for accepting the promises given by the other party. Furthermore, an offer must be distinguished from an invitation to treat which is a mere intention of a party to make an offer.
The other party must communicate acceptance of the offer within stipulated time or reasonable time if no time specified for acceptance, and must use accepted means of communication without altering the terms of the offer. Altering the terms of the offer amounts to a counter offer which must be accepted by the other party unconditionally if there has to be a valid contract. In the UK, the procedure for establishing a contract for the sales of goods is stipulated in the Sale of Goods Act 1979.
The offeree should communicate the acceptance using the fastest means possible if the not specific method of communication is stipulated by the offeror. While in the case of McIver v Richardson (1813), the general rule of communicating the acceptance of an offer requires the offeree to communicate to the offeror, the postal rule imposes an exception as stated in Adams v Lindsell (1818). The postal acceptance rule stipulates that when a party mails the letter of acceptance by post, the acceptance becomes effective immediately they deposits a well-addressed letter to the post office regardless of whether the offeror receives the letter or not. The method of communication an acceptance should be acceptable and reasonable.
The liability of a defendant for the loss or damages they cause the claimant due to the defendant’s negligence involves the non-contractual relationship between the parties. The claimant can raise a claim against a third party for the injuries caused by another person such as an employee. For instance, the employers have a vicariously liable for the damages caused by their employees to the clients, visitors or other third party claimants while the employee was acting in the line of his or her duty. For instance, the employer is responsible for hiring the employees, and they owe the third parties the duty of care by ensuring they hire a competent driver.
The case of Caparo Industries v Dickman (1990) establishes the conditions which must exist for a claimant to successfully raise a claim of negligence against a thirty party. The claimant must demonstrate the defendant owed them a duty of care and that the breach of that duty of care had proximate cause to the injuries suffered by the claimant. Also, the injury suffered by the claimant must be reasonably foreseeable, and it should be fair, just and reasonable to impose a duty of care on the defendant. The claimant must prove that the defendant breached their duty of care by acting negligently or failing to act reasonable and consequently causing injury to the third party.
In Fernando V Simon, then there was no contract between the parties. Simon had provided a telephone number and email address which the offerees could use to contact him. Fernando decided to use a postal method which is slower than the methods offered by Simon. Therefore, Simon could not be held responsible for delayed communication which was made through a method he did not request the clients to use. However, if Simon received the email on time and accepted the payment for the products, there could be a valid contract between the two parties.
In the case of Ali vs Simon, it was apparent that communication by email was the offeror’s preferred method of communication. Ali’s request for information from Simon whether he could sell the books at £6,500 was a counter offer which Simon did not accept hence no contract was formed. However, Simon affirmed the offer for the sale of books at £7,000 and requested Ali to email him that day before 10:00 pm if interested. Therefore, there was a valid contract because Ali sent the email on time as requested by the offeror. The accidental deletion of the email of acceptance does not undermine the acceptance of offer. Ali can sue Simon for breach of contract.
The case of Fern vs Good Buys involves the employer’s responsibility for the injuries caused by employees to the client. Employers are responsible for the injuries caused by their employees to other persons or property while in the cause of their duty as stipulated in the vicarious liability. In this case, the claimant was a customer while the driver who caused injury was working for the defendant. There was a relationship between the defendant and claimant because they were seller and client.
The Good Buys owes its clients a duty of care while they are on his/her premises and should do everything possible to prevent any injuries to the clients including the use of warning posters. The Good Buys acted negligently by allowing the incompetent driver to handle the forklift truck. Furthermore, the injuries suffered by the claimant were foreseeable because any reasonable person could anticipate an incompetent driver to damage property or knock down a person. The injuries suffered by the claimant were not too remote, and there was the proximate cause of injury due to the act of negligence. Therefore the Fern can raise a legal case against the Good Buys for injuries caused to her bicycle and personal injuries caused by the negligence of the defendant.
The use of warning notice cannot discharge the employer of their duty of care they owe to the third parties. However, the defendant may use contributory negligence as a defence against the claim of negligence. For instance, the defendant may claim that failure by the claimant to use helmet contributed to the head injuries, but this may not work where the defendant acted negligently as was held in the case of Revill V Newbery . However, as established in the Law Reform (Contributory Negligence) Act 1945, the parties can share the loss is established that the claimant is liable for contributory negligence. Fernando can sue Good Buys for personal injuries due to negligent action of the Good Buys employee.
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A valid contract must satisfy various elements such as the offer, acceptance, consideration, contractual capacity of the parties and their willingness to form a legal agreement. The communication of acceptance should follow stipulated procedure and be on time. If parties have agreed to use email as a method of communication the contract is valid once the offeree sends the email regardless of whether the offeror has received it or not. If an offeree decides to use a slower method which is different from the method requested by offeror the contract does not become valid unless the offeror receives it within a reasonable time. Furthermore, a person can bear vicarious liability for tortious acts of the employees to third parties as observed in the case of Fernando and Good Buys even if there was no contractual relationship between the parties. The employer should exercise due care to avoid or minimise injuries to third parties.
- Adams v Lindsell 106 ER 250; (1818) 1 B & Ald 681 (KB)
- Caparo Industries v Dickman (1990) 2 AC 605 (HL)
- McIver v Richardson (1813) 1 M. & S. 557
- Morissette Emily L., Personal Injury and the Law of Torts for Paralegals, (Aspen Publishers Online, 2008), pp.1-381.
- Shahriyar Naiem, Aspects of Contract and Negligence for Business, (2017). <http://www.academia.edu/8160716/Contract_and_Negligence> Accessed 6th January 2018
- Revill V Newbery  2 WLR 239