The contract that Gerald and Kids Care formed is a bilateral contract “promise for a promise” created by two parties, which may be enforceable and considered under the doctrine of promissory estoppel (also called detrimental reliance). The doctrine of promissory estoppel can help enforce a promissory contract in a court of law. The doctrine of promissory estoppel may be applied when problems concerning consideration are present. According to the Business Law (Miller & Hollowell, 2012) textbook, in order for the doctrine of promissory estoppel to be applied, a number of elements are required: 1.
Reasonableness itself is any clause which purports to either exclude or restrict liability for a breach of contract (s.3 of the Unfair Contract Terms Act 1977), this applies where the party subject to the term is either dealing as a consumer or on the other party’s written standard terms of business. Meaning that a non –consumer party will be subject to a test of reasonableness (s.3(2)(a)). In s.3(2)(b) it goes further into discussing the extension towards any contractual term by virtue which a party may claim to be entitled. Within these provisions we can infer that it’s this section is trying to exclude liability indirectly, by using the clauses that define a party’s obligations very restrictively. The requirement of reasonableness is set out in s 11 of the UCTA 1977, the main element of the test is that ….a fair and reasonable one to be included having regard of the circumstances which were or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made.
Although the examination of the exclusionary rule may constitute deterrence for law enforcement, the rule still may be considered constitution although its existence (Zalman, M. (2011)). Rationale and Purpose of the Exclusionary Rule The exclusionary rule is separated into three parts. The first part needs an item to be physically collected as evidence. The second part is that the item of evidence has been collected by a governmental officer or a person temporary acting in their behalf, for example; confidential informants. Confidential Informants are told to do acts or buy thing that may be illegal, but they are doing it on behalf of the government (Zalman, M. (2011)).
It’s entirely up to the court of law to determine if a duty of care exists in some certain negligence cases. Most especially in an economic-loss negligence claim. On the test for a duty of care, in Carparo Industries v Dickman, the three- fold-test was put into test. The three-part test,’’ if the damage was foreseeable, proximity between claimant and defendant, and, if it’s fair to just create a duty of care’’; are what courts uses as points of consideration in determining if a duty of care is owed to a claimant. This test was examined in the Carparo Industries Plc.
Advice Austin of his legal position and what remedies, if any, are. Offer and Acceptance is a traditional approach in contract law which is used to determine when an agreement exists between two parties. In order to constitute a contract, there must be an offer by one person to another and an acceptance of that offer by the person to whom is made. A legally binding offer in order to be valid will have to include clearly stated terms because sometimes a statement may be indefinite to consist of a valid offer. Also, an offer will include intention to do business and as a final feature the offer must be communicated to the offeree.The communication of an offer may be written or spoken but it may usually be by conduct.
Whether or not B will have a cause of action for damages for breach of contract depends on whether the Heads of Agreement is itself an enforceable contract. Since A and B have executed the Heads of Agreement, they themselves may have come to an agreement, and execution excuses the need to go through an offer and acceptance analysis to find an agreement. Moreover, the language of the document reflects this conclusion; it records the completion of negotiations for the ‘Heads of Agreement’. Nevertheless, as a matter of law, the parties must have reached a certain and complete agreement R. Under the objective theory of contract; it cannot be concluded that the parties have reached an agreement if it is impossible to ascertain the meaning and legal effect of the terms agreed. Moreover, despite the execution of a document, there will be no enforceable agreement if the contents of that document evidence a positive intention not to contract.
The outcomes of some negligence cases depend on whether the defendant owed a duty to the plaintiff. Such a duty arises when the law recognizes a relationship between the defendant and the plaintiff, and due to this relationship, the defendant is obligated to act in a certain manner toward the plaintiff. A judge, rather than a jury, ordinarily determines whether a defendant owed a duty of care to a plaintiff. Where a reasonable person would find that a duty exists under a particular set of circumstances, the court will generally find that such a duty exists. A defendant is liable for negligence when the defendant breaches the duty that the defendant owes to the plaintiff.
Duty The outcomes of some negligence cases depend on whether the defendant owed a duty to the plaintiff. Such a duty arises when the law recognizes a relationship between the defendant and the plaintiff, and due to this relationship, the defendant is obligated to act in a certain manner toward the plaintiff. A judge, rather than a jury, ordinarily determines whether a defendant owed a duty of care to a plaintiff. Where a reasonable person would find that a duty exists under a particular set of circumstances, the court will generally find that such a duty exists. In the example involving the defendant loading bags of grain onto a truck, and striking a child with one of the bags, the first question that must be resolved is whether the defendant owed a duty to the child.
Ayesha Khan Tutorial 4: Contract Law 23/09/2013 How did the court delineate the principles of the formation of a contract in Carlill? Carlill v. Carbolic Smoke Ball Company [1892] The law of contracts is a rather unique interval of the law since it involves the making of an agreement between two parties. In some cases, a third party may be involved. However, what makes this area of the law truly unique is the pillars upon which a contract is formed and it includes the legal intention to create a legally binding contractual agreement, whether done verbally or by signing, the offer made to the offeree to enter into an agreement, the consideration where the offeree expresses interest with regards to what is being offered and lastly, the acceptance, where the offeree creates notice of his/her willing to be contractually binded. In some cases, it is important to establish how the contract was formed to determine whether a contract is even existent at all, such as in the case of Carlill v Carbolic Smoke Ball company.
ELEMENTS OF WRONGFUL ACT/TORTIOUS ACT Vicarious liability is the process of holding a person accountable for the actions of another person. Often, the concept of vicarious liability applies to employer liability for the actions of their employees. There three elements of Vicarious Liability that need to be satisfy in order to apply this rule. The first one that the court will decide is whether there are any wrongful or tortious act that has been committed. Once a tort is identified, then the nature of relationship between defendant and tort feasor will be examined.