The defendant argued, inter alia, that an offer must be made bilaterally that is, an offer cannot be made to the entire world. The court disagreed and held that an offer can be made unilaterally that is, an offer can be made to the entire world.
Must be clear and unequivocal; the offer was very clear and one of the terms contained therein had indicated the possible variation in the initial agreed contract price according to the cost and availability of materials.
Offers must be distinguished from non-promissory statements made during the course of negotiations. Objectively, these statements are exaggerated and a reasonable person would not expect them to be true.
A valid acceptance: 1. Must be communicated by the offeree which Muchimba Company Limited did though attached a condition. Must be made in response to an offer like in R v Clarke and correspond with the offer. Must be made while the offer is still in force, and the company did what was necessary within the required time as in responding to the offer in general.
May be express, that is, oral or in writing; or implied from conduct. In Brogden v Metropolitan Railway Co , the defendant Brogden had been supplying coal to the plaintiff Metropolitan without a formal contract. The parties thereafter proceeded to act as if there were a binding contract until a dispute arose between them some time later. The court held that a contract existed because the parties had acted on the basis that a contract existed. In other words, the acceptance of the offer by the defendant could be inferred from his conduct.
Therefore, it appears to me that Muchimba Company Limited though setting a condition had implied to have agreed the terms in the offer communicated to them by Buchiclan as they did not object to the contents per se. The plaintiff Galauni Farms had offered to sale wheat to the defendant of about tones according to the initial documentation which was signed by the respondent. However, because of some amendments made on the document which were acknowledged by both parties and signed for, it was still necessary to have a cleaned up document which needed fresh signatures.
The plaintiff in preparing a cleaned up version of the contract inserted a different tonnage of wheat to be supplied to 2, instead of the initial agreed This being the case, the Counsel for the 1st defendant argued to say that changing of the tonnage from the initial constituted a counter offer to which the client did not consent or accept.
The rule is an exception to the principle that the offeree must communicate acceptance to the offeror. Acceptance takes place when the letter of acceptance is posted, not when it is received. Therefore, it appears that even though Muchimba Company Limited had laid down a condition, yet they implied accepted the offer though counter offered by including different terms.
In Adams v Lindsell , the defendant Lindsell wrote to the plaintiff Adams offering to sell him a quantity of wool and requiring acceptance by post, which the plaintiff provided. The defendant, believing his offer to have been rejected by the plaintiff, sold the wool to another buyer. The court held that the acceptance by the plaintiff was effective on the date of posting, and therefore a binding contract existed between the parties.
There are however exceptions to the postal acceptance rule. For the rule to apply, acceptance by post must have been contemplated by the parties like the case in Henthorn v Fraser. The parties had discussed the sale of properties to the plaintiff. The defendant wrote out an offer to sell and handed it to the buyer, who took it away to consider it. A new buyer turned up and a contract was concluded, the defendant writing to the first buyer to withdraw the offer.
Before that letter could be received, the plaintiff had through his solicitor written back to accept the first offer. The plaintiff sent a written notice within the prescribed time, but it was never received by the defendant.
In a subsequent action for specific performance, the court held that the specified requirement for notice in writing to the defendant made the postal acceptance rule inapplicable as the defendant had intimated on the mode of acceptance which was to be a notice in writing. A contract should be fully understood by all parties included and a signature may be required in some cases as evidence of understanding.
Contract Types: There are three types of contracts which can be formed. These are verbal, written or standard form. To discover whether there is a valid contract and whether B is able to sue C for breach of any existing contract, facts of the problem must be identified, then laws that are relevant to this case must be deliberated on the basis of contract law principles.
Once investigations are completed and if a contract discovered, the terms of this contract must be outlined. A contract can be defined as an agreement containing promises made between two or more parties with the intention of creating certain legal rights and obligations and enforceable in a court of law .
For a legally binding contract to exist the following elements must be satisfied: 1. An offer must exist 2. A contract is a legally enforceable agreement which the courts will enforce and it is between two or more legally distinct parties which is called a Bilateral Agreement, e.
However it is possible for more than two individuals to be involved in a contract e. If all of these exist, Pierre would be in breach of his contract, as a consequence of selling the car to Marya.
There is no exact definition of a contract stated in the English law, but a contract simply occurs when two or more people comes to an agreement, under the law, to refrain or to do something having a legal relations and not just an exchange of mutual promises.
In common English law, there are 3 essential points in order to create a contract, which is, the agreement, contractual intention, and consideration in both parties. By understanding how the subject of law works, one must understand the theory of contract law.
It is essential in all forms of business relationships between two parties. Often, a contract is created through different types that involves a set of promises which the law gives a remedy or performance. A contract is an agreement between Abigail and all the three parties that are involved in the case.
Rule A contract is a legally enforceable agreement between two or more parties. London and District Cinemas  A. Where an issue of a breach of contract arises in court, the court has to decide whether or not a contract has been made.
To do this they must establish whether an offer has been made or whether it was simply an invitation to treat. Some of the basic elements of a contract include: an offer and an acceptance; "capacity," or being of legal age and sound competence; "mutual assent," or agreement on the terms of a contract; and "consideration," or compensation for goods or services rendered.
A contract needs four essential elements to exist. And, if one party does not keep his promise, the law provides a remedy by the breaching party. In order for a contract to be enforceable by law, the contract must include a valid offer, an acceptance of the offer, and adequate consideration. This was on 15th October. In the main time, however the offer had been accepted. The defendant was therefore liable under the contract. Revocation can Dickinson Dodds offered to sell his be v Dodds house to Dickinson, the offer communicated being open until 9am Friday.
This case touches on the fundamental concepts of contract law where H can only claim damages if the formation of a valid contract between the two parties is evident via the elements of a contract, including intention, agreement, consideration, legal capacity, genuine consent and legality of objects must be established.
The law may complement or replace terms by implying terms into a contract. In examining a contract, the courts will look first at the terms expressly agreed by the parties. An apparently binding legal agreement must be complete in its terms to be a valid contract.
Scammell v Ouston The facts: the defendants wished to buy a motor- van from the claimants on hire- purchase. They placed an order 'on the understanding that the balance of purchase price can be had on hire - purchase terms over a period of two years'. The hire 'purchase terms were never specified. Decision: the court was unable to identify a contract which it could uphold because the language used was so vague. It is always possible for the parties to leave an essential term to be settled by other means, for example by an independent third party.
If the parties use standards printed conditions, some of which are inappropriate, such phrases may be disregarded. Nicolene v Simmonds The facts: the claimant offered to buy steel bars from the defendant. A contract was made by correspondence, in which the defendant provided that 'the usual conditions of acceptance apply'.
The defendant failed to deliver the goods and argued that there had been no explicit agreement. Decision: the words should be disregarded. The contract was complete without these words; there were no usual conditions of acceptance.
There are occasions where certain terms are not expressly adopted by the parties. Additional terms of a contract may be implied by law; through custom, statute or the courts to bring efficacy to the contract. Implied terms may override express terms in certain circumstances such as where they are implied by statute. An Implied term can be defined as follows. A term deemed to form part of a contract even though not expressly mentioned.
Some such terms may be implied by the courts as necessary to give effect to the presumed intentions of the parties. Other terms may be implied by statute, for example, the sale of Good Act. Any express term overrides a term which might be implied by custom. Hutton v Warren The facts: the defendant landlord gave the claimant, a tenant farmer, notice to quit the farm.
Ha insisted that the tenant should continue to farm the land during the period of notice. The tenant asked for 'a fair allowance 'for seeds and labour from which he received no benefit because he was to leave the farm.
Decision: by custom he was bound to farm the land until the end of the tenancy; but he was also entitled to a fair allowance for seeds and labour incurred. Terms implied by the courts Terms may be implied if the court concludes that the parties intended those terms to apply to the contract. The Moorcock The facts: the owner of a wharf agreed that a ship should be moored alongside to unload its cargo. It was well know that at low water the ship would ground on the mud at the bottom.
At ebb tide the ship settle on a ridge concealed beneath the mud and suffered damage. Decision: it was an implied term, thought not expressed, that the ground alongside the wharf was safe at low tide since both parties knew that the ship must rest on it. A term of a contract which is left to be implied and is not expressed is often something that goes without saying ; so that, if while the parties were making their bargain an officious bystander were to suggest some express provision for it, they would say 'why should we put that in?
That's obvious': this was put forward in Shirlaw v Southern Foundries The terms are required to give efficacy to the contract, that is, to make it work in practice. The court may also imply terms because the court believes such a term to be a 'necessary incident' of this type of contract.
There was no formal tenancy agreement. The defendants withheld rent; alleging that the claimants had breached implied terms because inter alia the lifts did not work and the stairs were unlit. Where a term is implied as a 'necessary incident' it has precedent value and such term a will be implied into future contracts of the same type.
It is called an exclusion clause or an exemption clause. For example, an exclusion beginning liability for dent done to the lawn by a builder's backhoe might be included in a contract between the planner and a home owner who is having an extension built to their residence. The courts have normally taken the view that exclusion clauses are unfair and have tried to limit their giving in. Courts will by and large take to mean the exclusion clause touching the meeting annoying to rely on it and, at the smallest amount, comprehend it by a whisker.
Everywhere a contract is a manuscript signed by the parties, they will generally be bounce by the exclusion clause in it. Anywhere a contract is an unsigned document e. Only anywhere a reasonable person would assume the document to be part of the contract between the parties will the exclusion clause in the document be able to be relied on.
It must also be exposed that the exclusion clause was brought to the notice of the other party. Task 02 2. Apply the elements of contract in the scenario of Alan and Cath. An agreement must contain four essential elements to be regarded as a contract. If any one of them is missing, the agreement will not be legally binding. They are offer, Acceptance, intention of legal consequences and Consideration. The requirement of intention to create legal relations in contract law is aimed at sifting out cases which are not really appropriate for court action.
Not every agreement leads to a binding contract which can be enforced through the courts. Commercially based agreements will be seen as including a rebuttable intention to create a legally binding agreement. However, the law presumes that domestic or social agreements are not intended to create legal relations. For example, an arrangement between siblings will not be presumed to be a legally binding contract. A person who wants to enforce a domestic or social agreement will need to prove that the parties did intend to create a legally binding agreement.
Given task 2, there is a written agreement between husband and wife however depending on the circumstances even in domestic agreements sometimes the intention to create legal relations is presumed.
These facts are same as Merritt v Merritt case. While under the principles laid out in Balfour v Balfour, domestic agreements between spouses are rarely legally enforceable; this principle was rebutted where two spouses who formed an agreement over their matrimonial home were not on good terms.
The Court of Appeal held that nature of the dealings, and the fact that the Merritts were separated when they signed their contract, allowed the court to assume that their agreement was more than a domestic arrangement. Held that the decision in Balfour v Balfour will not apply to this case, because in Balfour v Balfour, the parties reached their agreement when they were living in amity, but in this task 2, they negotiated the terms when they decided to separate.
Therefore a reasonable person would regard their agreement as intended to be binding in law. Therefore the husband wants to transfer the house to wife's name. Evaluate the effect of different terms in given contracts. Contractual terms can either be conditions, warranties or in nominate terms.
Traditionally, contractual terms were classified as either conditions or warranties. The category of in nominate terms was created in Hong Kong Fir Shipping. It is important for parties to correctly identify which terms are to be conditions and which are to be warranties. Where there has been a breach of contract, it is important to determine which type of term has been breached in order to establish the remedy available. A condition is a major term of the contract which goes to the root of the contract.
If a condition is breached the innocent party is entitled to repudiate end the contract and claim damages in poussed V spiers 1 QBD case, Madame Poussard entered a contract to perform as an opera singer for three months.
She became ill five days before the opening night and was not able to perform the first four nights. Spiers then replaced her with another opera singer. The court held that the defendant's refusal was justified and that they were not liable in damages. What chiefly influenced the court was that poussard's illness was a serious one of uncertain duration and the defendants could not put off the opening night until she recovered.
The obligation to perform from the first night was a condition of the contract. Failure to carry out this term entitled the producers to repudiate poussard's contract.
Warranties are minor terms of a contract which are not central to the existence of the contract. If a warranty is breached the innocent party may claim damages but cannot end the contract: in Bettini v Gye QBD case Bettini agreed by contract to perform as an opera singer for a three month period.
He became ill and missed 6 days of rehearsals. The employer sacked him and replaced him with another opera singer. The court Held that, Bettini was in breach of warranty and therefore the employer was not entitled to end the contract.
Missing the rehearsals did not go to the root of the contract. Evaluate the effect of different term in given contracts. It introduced the concept of in nominate terms, between "warranties" and "conditions". Diplock LJ emphasised that some terms could lead to either the right to terminate a contract as a remedy, or to the mere entitlement to damages or no right to terminate.
What mattered was not whether you call a particular contract term a "warranty" or a "condition" but how serious the breach of the term was. The meaning of the term "seaworthiness" has a very broad meaning ranging from trivial defects like a missing life preserver or a major flaw that would sink the ship.
Accordingly, it is impossible to determine ahead of time what type of term it is. Thus, the type of breach must be determined by the judges. In McFadden v Blue Star Lines  1 KB it was stated that, to be seaworthy, a vessel must have the degree of fitness that an ordinarily careful and prudent ship owner would require his vessel to have at the commencement of a voyage, having regard to all possible circumstances.
And the Marine Insurance Act s 39 4 provides that "a ship is deemed to be seaworthy when she is reasonably fit in all respects to encounter the ordinary perils of the adventure insured. The Hong Kong Fir decision was met with some alarm in the shipping world, where certainty is crucial. The problem was the delay element; one had to "wait and see" the effect of the breach. The enormous costs involved in chartering mean that parties cannot afford to leisurely loiter, whilst pondering the consequences of the breach.
Soon after, in The Mihailis Angelos  1 QB , it was held the impossibility of the ship owner to meet the "expected ready to load" date, ipso facto entitled the charterer to repudiate for anticipatory breach of condition. The charterer was relieved to be able to cancel, as his proposed cargo of apatite had not materialized PS. Lord Denning used the word "warranty" in a very different way.
Therefore the defendants are liable for wrongful repudiation. Here we can apply the in nominate term approach. Rather than seeking to classify the term itself as a condition or warranty, the court should look to the effect of the breach and ask if the breach has substantially deprived the innocent party of the whole benefit of the contract.
Only where this is answered affirmatively is it to be a breach of condition. Differentiate tort liability with contractual liability. Winfield defined tortuous liability as follows: 'Tortious liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is repressible by an action for un liquidated damages' The main purpose served by the definition is to distinguish the law of torts from other branch of the law and we now examine the main area of difference between the law of tort and the law of contract.
A contractual obligation differs in nature from a delictual obligation in three aspects. Firstly contractual obligations arise only from agreement between parties.
However, delictual obligations are contractual obligations that are imposed by law on the party bound. Secondly, duties arising from contract are owed to the parties to the contract or their assignees , whereas delictual obligations are owed to a large and indeterminate class of persons. Thirdly, a delictual obligation imposes negative duties, while a contractual obligation may impose positive or negative duties. According to Winfield one distinction between the law of tort and the law of contract is that the scope of the rights and duties of parties in the former is wider than in the latter.
In case of torts and duties are imposed by law and are owed to persons in general while in the case of contracts the duty is created by prior consent and agreement by the parties and is owed by one party to the other.
However, such a general statement must necessarily be qualified in some respects. There are several instances where the prior consent of the defendant is a relevant factor in cases of tortuous liability. Under the English occupiers Liability Act of , a distinction is drawn between the duty owed by an occupier to a trespasser and that owed by him to a visitor whom he has permitted to enter his premises.
Conversely, in the law of contracts the increased use of standard form contracts and 'implied terms' which the law deems the parties to have agreed to, has to a great extent eroded the true freedom of the parties to make independent decisions regarding the terms of such contracts.
Therefore, the parties may find themselves bound by terms imposed on them by the law rather than by prior agreement between them. However, we could argue on the other hand that no person is bound by a contract against his will, may find himself subject to terms imposed by the law rather than the agreed terms of the contract alone.
We could also argue that in spite of the increased use of standard of the contract is still determined by agreement between the parties. For example, the question whether A delivers to B or tons of fruit, depends on the terms of the contract agreed upon by them. On the other hand, in the case of the occupiers Liability Act, while the occupier of premises will owe a duty of care to visitors whom he permitted to enter his premises, the extent of that duty is determined by the act in question.
We can see a further distinction between the law of tort and contract when we examine the aims of these two branches of law. The primary aim of the law of tort is to grant redress or compensation to the victim of a tort for the harm caused to him.
In other words the law seeks to put him as far as possible in the same position as if he had not suffered any damage or injury. The aim of the law of contract on the other hand is to enforce the promises made by one party to the other, and in the event that this is not possible, to grant damages to the latter, or in other words put him as far as possible in the same position as if the contract had been performed.
However, this distinction too has been somewhat blurred in recent times and it is now possible for a plaintiff to bring an action in both tort and contract on the same facts.
In the law of contract the rule that a promise is not legally binding without either consideration or the formality of a seal has been relaxed in many instances and in the area of tort several cases have held that a negligent defendant is liable even though he has not caused damage to the plaintiff by any positive act [Rose v Caunters where a solicitor who negligently executed a will was held liable to a disappointed legatee].
Explain negligence in law of tort with other concepts associating with it. The concept of negligence or culpa is one of the foundations of the Aqulian acting on the Roman Dutch law. In the English law however, it is of much later origin.
The early common law concentrated almost entirely on intentional harm and moreover was more concentrated with the nature of the injury caused then with the basis of the defendant's conduct. It was during the 19th Century and the advent of the industrial revolution that the concept of negligence began to evolve as a basis of Tortious liability in the English law.
The development and expansion of industries and machinery and new modes of transport etc. The old stereotypes remedies available were insufficient to provide a solution to the problems which began to arise as a result of the social and economic upheaval which prevailed at the time, and the courts increasingly began to rely on the concept of negligence in confronting them.
Further the basis of negligence being 'fault liability' it proved to be more advantageous to the proponents of industrialization than the concept of 'strict liability' or liability without fault. However, the principle of negligence also resulted in expanding liability in other directions as for example, liability for nervous shock, negligent misstatements, omissions, etc.
Negligence is not a tort in itself but a basis of liability in Tortious actions, it may be defined as' the failure to exercise towards another, in given circumstances that degree of care which the law considers that a reasonable man should exercise in these circumstances' In order to establish negligence as a Cause of Action under the law of TORTS, a plaintiff must prove that the defendant had a duty to the plaintiff, the defendant breached that duty by failing to the required standard of conduct, the defendant's negligent conduct was the cause of the harm to the plaintiff, and the plaintiff was, in fact, harmed or damaged.
The concept of negligence developed under English Law.
The problem was the delay element; one had to "wait and see" the effect of the breach. The Law of Contract.
There is no exact definition of a contract stated in the English law, but a contract simply occurs when two or more people comes to an agreement, under the law, to refrain or to do something having a legal relations and not just an exchange of mutual promises.
In the Hedley Byrne case, judge decides that there are few conditions needed to achieve to constitute a 'special relationship' between the person who gives an advice and another person that who sought on the advice. An apparently binding legal agreement must be complete in its terms to be a valid contract. If the contract is illegal as performed, the contract is void, but not void ab initio. A written contract must be signed by all parties involved. Held that the decision in Balfour v Balfour will not apply to this case, because in Balfour v Balfour, the parties reached their agreement when they were living in amity, but in this task 2, they negotiated the terms when they decided to separate.
However, this distinction too has been somewhat blurred in recent times and it is now possible for a plaintiff to bring an action in both tort and contract on the same facts. As a consequence, a defendant knew or should have known that a child or children were present, or were likely to be present, in the vicinity, the defendant may required to exercise greater vigilance. Essentially, a contract is an agreement between two or more parties that the law will enforce. Any money paid or property transferred under such an agreement may be irrecoverable. It must also be exposed that the exclusion clause was brought to the notice of the other party. A formal legal advice is always recommended prior to making or accepting a business contract.
The document Y signed would not be binding on Y.