Common Law Sample Essay

Invitation to Treat:
When Bill said to James. “I may be prepared to purchase 10 telecastings from you for ?2000” . Then the statement of Bill is an invitation to handle for utilizing in bill’s statement ‘I may be prepared to buy’ . Harmonizing to Givson V Manchester City Council [ 1979 ] 1 WLR 294: there was no binding contract because there ne’er was an offer made by the Council. The Council’s missive saying that it ‘may be prepared to sell’ was simply an invitation to handle.

Offer:
Offer should to be clear and certain. James replied. “I will sell you the 10 telecasting sets for ?2500. ” Here James statement was clear and certain. So it is an offer. Harmonizing to Carlill v Carbolic Smoke Ball Co. ( 1893 ) : The advertizement in this instance was held to be a one-sided offer because there was a clear prescribed act.

An offer needs to be communicated. orally or written. Without communicating. offer is non valid. Harmonizing to Taylor V Laird ( 1856 ) 25 LJ Ex 329: An offer has no cogency unless and until it is communicated to the offeree so as to give the offeree the chance to accept or reject it. Here it seems the offer of James has been communicated. So the offer of James is valid.

Counter Offer:
In Bill’s and Jame’s statements. there has non been made counter offer. If Bill’s statement would unclutter and certain so Bill’s statement could be offer and James statement could be antagonistic offer. And after that the same twenty-four hours James rejected to sell telecasting. So the contract has non been made. Harmonizing to Hyde V Wrench ( 1840 ) 3 Beav 334: the counter- offer operated as a rejection of the original offer. There was hence no contract.

Revocation of Offer:
Following forenoon Bill accepted James offer by pass oning with James. But before accepting James offer. James revoked his ain offer by telephonic message on Bill’s answer-phone. Harmonizing to Routledge V Grant ( 1828 ) : offerer could retreat his offer at any clip within six hebdomads provided that no credence had been made. So it is clear that the offer has been revoked successfully by James.

But annulment is effectual merely by existent communicating. James revoked his offer by telephonic message on Bill’s answer-phone saying he is no longer prepared to sell the telecasting to Bill. There existent revoked communicating has non been made by James. If Bill does non acquire revocation message from answer-phone before his credence the offer so the annulment of James will be unsuccessful. Harmonizing to Byrne V Van Tienhoven ( 1880 ) 5 CPD 344: T’s annulment was inoperative because it did non make B until after credence had been made.

Outcome 2:

The postal regulation was established in 19th century. From 19th century to today the postal regulation is considered. when an offer is accepted by missive or wire. The postal regulation was laid down in Adams V Lindsell ( 1818 ) 1 B & A ; ALD 681: There was a good contract on 5 September when the missive of credence was posted. The credence of offer is effectual from that clip when the missive of credence is decently posted. Harmonizing to postal regulation a missive demand to be decently posted by an official missive box or by the employee of the station office who has mandate to have letters. It will non be accepted if the missive is posted by seting missive into the custodies of a mailman who has no legal permission to have the missive: Re London and Northern Bank. ex p. Jones ( 1900 ) 1 Ch 220. On the contrary. Revocation of offer will non be effectual by postal regulations. It must be received to be effectual.

The operation of the postal regulation:
When the offeree station the missive that means he has accepted the offer of offerer. In that instance the postal regulation topographic points a greater load on the offerer than the offeree. Because it is possible to warrant the fact and besides it is easier to turn out posting than it is to turn out reception of a missive. Harmonizing to Henthorn v Fraser ( 1892 ) 2 ch 27. F: a contract was made at 3:50 autopsy when H posted his missive of credence.

The postal regulation will besides use if the credence is delayed or lost in the station. Harmonizing to Household Fire and Carriage Accident Insurance Co. V Grant ( 1879 ) 4 Ex D 216: a contract was made at the minute the missive of allocation ( i. e. the credence ) was posted. Here. the complainant company accepted G’s offer by directing a missive of allocation but the missive did non make to G. Though the missive might be lost but the postal regulation has been applied.

Exception of the postal Rule:
There is some exclusion in postal regulations. When the prompt credence is needed or when the offeree’s sloppiness occurred so the postal regulation is invalid. Harmonizing to Henthorn V Fraser ( 1982 ) 2 ch 27: the postal regulation is applicable merely where it was sensible in all the fortunes for the offeree to hold used the station. It has been held to be unreasonable to utilize the station when there is an implied status that prompt credence is required. Harmonizing to Quenerduaine V Cole ( 1883 ) 32 WR 185: the fact that the counter-offer was made by telegraph indicated an implied status that prompt credence was required. The purported credence by missive reached C after the counter-offer had lapsed. No contract was made. Harmonizing to Holwell Securities V Hughes ( 1974 ) 1 WLR 155: the regulation will non be applied where it would take to ‘a manifest incommodiousness and absurdity’ and besides sloppiness of offeree has lost the benefit of the postal regulation.

Avoiding of the postal regulation:
Harmonizing to Household Fire Insurance V Grant ( 1879 ) when he stated that the postal regulation could be avoided by the prudent offerer stating: ‘your reply by station is merely to adhere if it reaches me. ’ And besides postal regulation will be avoided by the phrase ‘by notice… . to’ ( Holwell Securities V Hughes ( 1974 ) WLR 155 ) .

Outcome 3:

( a ) Vicarious Liability:
A individual is vicariously apt who is responsible for the mistake of another individual. Vicarious liability is a triangular legal relationship ; i. e. O is vicariously apt to P for the mistake by D. Vicarious liability is to be found on employers. The employer is apt for any harm which is occurred by the carelessness of employees and it is good established in civil wrong jurisprudence.

Employers:

The definition of employers was decided by the control trial. the extent to which the employer controlled non merely the measure and nature of the work done. but besides the mode in which it was done. ( Yewens v. Noakes [ 1880 ] 6 QBD 530 )

And other trials have besides been developed to specify who is employer:

1. Is the employee an ‘integral portion of the business’ ? ( Cassidy v. Ministry of Health [ 1951 ] 2 KB 343 ) 2. ‘Is the individual in concern on his ain account’ ( Market Investigations v. Minister for Social Security [ 1969 ] 2 QB 173 )

To place a differentiation between employer and independent and definition of employer by jurisprudence. the modern attack is to utilize a composite trial integrating control and a scope of other considerations. including the opportunity of net income / hazard of loss. ownership of assets. nature of payments etc. ( Ready Mixed Concrete v. Minister of Pensions [ 1968 ] 2 QB 497

Vicarious liability is enforcing on employers as followers:
1. Employers know the possible cost of accidents. and to take appropriate safeguards.
2. Employers are covered by obligatory insurance.
3. Benefit and load rule.
4. Employee’s carelessness should be a cost of the employers concern.
5. By the vicarious liabilities. employers control or disregard the employees who are likely to do injury.




The Course of Employment:
The vicarious liability will originate when an employee will be in the class of employment where the act is either expressly or impliedly authorised by the employer and besides an unauthorized manner of making an authorised act. or an act which is incidental to what the employee is employed to make. For illustration. if a bringing adult male of Pizza Hut injured other people in his bringing clip by his minibike so the Pizza Hut will be apt. Harmonizing to Poland v John Parr and Sons [ 1927 ] 1 KB 236: The employer was vicariously apt. The employee had implied mandate to take sensible actions to protect the employer’s belongings. An employee is outside the class of employment if she or he is engaged on a ‘frolic of his or her own’ . Storey v. Ashton ( 1869 ) LR 4 QB 476. Williams v. Hemphill ( 1966 ) SLT 259.

Employee Carelessness:

If the employee acts heedlessly so employer will be apt for the action of the employee. Century Insurance v. Northern Ireland Road Transport Board [ 1942 ] AC 509 ; Bayley v. Manchester. Sheffield & A ; Lincolnshire Railway Co [ 1873 ] LR 8 CP 148.

Express Prohibition:

The employee will still be moving within the class of employment merely if the prohibition restricts the manner of executing his or her responsibilities. instead than their range. One must inquire: ‘what was the employee employed to make? ’ ( Limpus v. General Bus Co [ 1862 ] 1 H & A ; C 526 ; Rose v. Plenty [ 1976 ] )

Exception of Vicarious liability:
If employee do something illegal or make something wrong for sloppiness outside the employer’s country so an employer will non be vicariously apt for their action. Example. K 5 ITW Ltd ( 1968 ) ; Twine v. Beans Express [ 1946 ] ; and General Engineering Services v. Kingston & A ; St. Andrews Corp [ 1988 ]

( B ) Occupiers Liability to Visitors:

Resident:
Occupier is any individual who has legitimate power to command over premises. The Occupier’s Liability Act 1957 applies non merely to land and edifice ; it does besides use to fixed and movable constructions. including vass. vehicles or aircrafts. Wheat v. Lacon – Landlord and renter of pub both owed responsibility of attention to guest injured on stepss. However. no breach on the facts.

Visitors:
Under s. 1 ( 2 ) the occupier owes a responsibility of attention to all lawful visitants. Who is permitted defined as a lawful visitant i. e. guests. licensees. people come ining under a contract. people with a legal right to come in. Trespassers will non be under occupier’s liability. A lawful visitant may be lawfully authorised in one portion of premises and non another portion of the premises. ( Campbell v Shelbourne Hotel )

Under s. 2 ( 2 ) provinces that an resident has a responsibility of attention to guarantee that in all circumstance visitants will be sensible safe in utilizing the premises for the intent for which he is invited or permitted to be at that place for. ( Simms v Leigh RFC ) – P injured by hitting concrete wall environing rugby field. D non apt as hurt foreseeable but so unlikely that it was non necessary to guard against it.

Under s. 2 ( 3 ) ( a ) if the resident admits kids to the premises the kid visitant must be moderately safe. Harmonizing to instance codification ( Glasgow Corp v Taylor ) – 7 twelvemonth old died after eating toxicant berries in park D knew of the berries but took no safeguards against kids.

An employer may still be apt for neglecting to supply safe system of work ( General Cleaning V Christmas ) . Exclusions: s2 ( 1 ) exclusions are allowed ‘by understanding or otherwise’ . so can except by a term of the contract or by a communication notice ( Ashdown v Samuel Williams ) Outcome 4:

Negligence is the most important civil wrong. covering a monolithic figure of state of affairss. There are three chief elements which is successfully conveying a claim in carelessness:

I. A responsibility of attention
two. Transgressing the responsibility
three. A causal nexus between the breach and the injury suffered by the victim.

I. Duty of Care:
The construct of the responsibility of attention has at least two intents. One is to supply overall model for the assortment of state of affairss in which liability may originate. In that instance jurisprudence has recognised relationship in which one individual owes a responsibility to another. And another one is restriction. puting the boundaries within which one individual could be apt to another for the effects of careless behavior.

To specify the responsibility of attention. there is three trial which are most influential:

Neighbour Principle:
Harmonizing to Donoghue v Stevenson [ 1932 ] AC 562: ( By a bulk of 3 to 2 ) Manufacturers owe a responsibility of attention to see that the ultimate users of their merchandises are non injured by these merchandises.

Revised Trial:
There had been many developments in the led of carelessness in the old ages following that determination. These led Lord Wilberforce to redefine the neighbour rule. He turned in into a two-stage trial in Anns v Merton
London BC [ 1978 ] at 751.

Foresight. Proximity and Fairness Test:
The trial show three things if there is to be responsibility of attention:

>A individual in the claimant’s place would be injured which was a sensible foreseeable.
>There was sufficient propinquity between the parties.

>It is just. merely and sensible to enforce liability.

One of its best expoundings is in Caporo Industries v Dickman [ 1990 ] 2 AC 605. There is a particualry helpful treatment of the trial by Bingham LJ in the tribunal of Appeal in the same instance: Caporo Industries v Dickman [ 1989 ] QB 653 sy 678-680.

two. Transgressing the responsibility:
The tribunals use the ‘reasonable man’ trial to make up one’s mind a breach of responsibility. It has been designed to put up an nonsubjective criterion of attention with which to mensurate liability. Harmonizing to Blyth V Birmingham Waterworks ( 1865 ) the tribunals have stated that the ‘reasonable man’ is ordinary individual. or the ‘man on the Clapham Omnibus’ ( Hall v Brooklands ( 1933 ) ) . If there is some hazard involved but the cost to society of non making something might be high so the tribunal will usually make up one’s mind the ‘reasonable man’ would hold acted in the manner that the suspect did ( Daborn v Bath ( 1946 ) ) . It should besides be noted that the ‘reasonable man’ is merely expected to be albe to take into history that which is moderately foreseeable. ( Roe v Minister of Health ( 1954 ) ; Paris v Stepney ( 1951 ) ) . Exception:

The tribunals have decided in some particular instances that it is non just to handle the suspect as an nonsubjective “reasonable man” by some ways as followers:

Lack of specializer accomplishment:
Who don’t have a specializer accomplishment will be given more latitude than those who possess such accomplishment. ( Phillips v Whitely ( 1938 ) )

Peoples who are incapacitated:
Peoples who are incapacitated in some manner will hold a lesser criterion of attention placed on them. ( Mansfield v Weetabix ( 1998 ) )

Childs:
It is non appropriate to handle a kid as a “reasonable man” because of their deficiency of adulthood. ( Gough V Thorne ( 1966 ) )

Professional and the Bolam trial:
Professionals can get away liability if they have acted in a manner which is accepted as sensible by others in the professional. ( Bolam V Friern Hospital ( 1957 ) )

three. A causal nexus between the breach and the injury suffered by the victim: In that component the breach and the injury suffered by the victim is insouciant linked between. The tribunals have tended to reason that the defendant’s actions must hold contributed in a ‘material’ manner to the injury suffered by the suspect and that this part must be proven on a balance of chances. McGhee 5 National Coal Board ( 1975 ) ; Barnett v Chelsea and Kensington Hospital ( 1969 )

“But For” Approach:
Courts developed a tool for measuring causing which has been referred to as the “but for test” . ( McWilliams v Arrol ( 1962 ) ; McGhee v NCB ( 1975 ) ; Wilsher v Essex wellness Authority ( 1988 ) )

Bibliography:

Fafinski. S. and Finch. E. ( 2009 ) . Contract Law. Pearson Education Ltd: Harlean carpenter

Martin. J and Turner. C. ( 2007 ) . Unlocking Contract Law. Hodder Education: London

McKendrick. E. ( 2005 ) . Contract Law. Sixth Edition. Palgrave Macmillan: New
York