Monday, March 25, 2013

Aspects of Contract and Negligence for Business



Aspects of Contract and Negligence for Business

In the modern days there have occurred a lot of transformations as well as advancements as regards contract law. Sheinmann (2000) asserts that the most significant changes have been observed on the role played by the will of parties that get into a legal agreement; unlike in the past when the predominant issue when entering contracts was the will of the involved parties, the modern contracts are greatly influenced by established judicial doctrines and statutes. Contractual liability as being influenced by the will of the parties entering into a contract is therefore no longer as obvious as it used to be. According to Dunkel and Coleman (1997) contracts refer to legally binding pacts that are formed between two parties in which either side has obligations that they ought to fulfill for mutual benefit.
Roach and James (2009) states that there are several aspects that need to be fully met for any pact to be considered lawful; firstly, both sides ought to have attained the required legal requirements that are required of anyone one entering an agreement. In addition to this, there ought to be the inclusion of lawful content in the pact and both sides must agree; another very important aspect of a contract is the fact that it must include an offer which is accepted by the relevant side. A valuable good or service is usually presented to the relevant side in exchange for the offer and acceptance. Contracts can be ether drafted down or verbal; they may also be explicitly stated or simply assumed.

JUSCO
Document:
Department:
Title:
Doc. No. :
Rev. No:
Effective Date:
Sheet No. :
                                                             PURCHASE AGREEMENT
This pact of purchase has been formulated on 18th June 2012 (the Effective Date) between Jusco Company, whose address is 1435, England, UK (1st party) and Clinton Agro-Company, whose address is 4583, Wales, UK (2nd party).
This pact is aimed at elucidating the purchase of potatoes and tomatoes by the 1st party from the 2nd party.
1.      Scope of Purchase
·         The 2nd party shall be responsible for the shipment of goods to the premises of the 1st party; an official representative of 1st party will receive the shipment and assess it in the presence of officials from 2nd party.
·         Goods delayed by 2nd party for more than twenty four hours will not be accepted.
·         Payment for goods purchased will be made immediately after the inspection and receiving of goods by 1st party.
2.      Subletting
The 2nd party in this agreement is under no circumstances allowed to shift or sublet the expectations of this pact, either in part or whole, without consulting with the 1st party and receiving documented endorsement. In the event that the 2nd party infringes upon this stipulation, the 1st party is mandated to offer the contract to another company at the expense of the 2nd party; the 2nd party will also compensate the 1st for any losses and damages caused.
3.      Statuary Ratification of the Purchase
·         Clinton Agro-Company is expected to perform the dictates of this agreement in compliance with the legal decrees, laws and enactments endorsed by the federal government as regards the sale and purchase of such foodstuff.
·         In the event that it is deemed necessary the 2nd party shall acquire the endorsement of statuary bodies and regulators governing sale and purchase of such foodstuff at their own expense.
PREPARED BY
APPROVED BY
Name



Designation



Signature



Date











Blight (2000) asserts that there are a variety of potential complications that a company like Jusco, which gets into a myriad of contacts with different dealers, may encounter. This is more so when the contracts contain clauses regarded as ‘harmless’ as well as securities and insurance covers. ‘Hold harmless’ clauses refer to the fact that either side that is involved in a contract has no authority to take legal action against the other despite them being liable for encountered losses or damages. Under the law of indemnity, as stated by Blight (2000), one of the parties in the contract, regardless of whether in contravened its duty or not, commits to compensating the other party for losses incurred. More often than not, Dobbs and Paul (2001) assert that there are three legally recognized forms of hold harmless or indemnity decrees. Limited indemnity refers to the instance in which either party in the agreement is accountable for its own mistakes; broadform liability is that in which one of them parties in a contract agrees to be liable to all the losses incurred regardless of whether they occurred as a result of their fault or the other party’s faults (Blight, 2000); in the intermediate form of indemnity, one of the parties bears the responsibility for all incurred losses unless it can be ascertained that losses incurred were as a consequence of the other’s mistakes.
According to Blight (2000), in the contracts being utilized by Jusco Company, there are several amendments that a legal advisor ought to make. Firstly, the statement ‘any act or omission’ to be erased and replaced with ‘any form of negligence, omission or deliberate act’. Secondly, in the instances that Jusco is expected to offer indemnity to others, its contractual statements on contributory negligence ought to include the phrase….’ The company shall offer indemnity unless the losses and damages incurred are attributable to its agents or workforce’s negligence’ (Blight, 2000). According to Dobbs and Paul (2001) at certain times, the effects of contravening a contract may be remedied. The recompensing of plaintiffs or paying them for damages and harm caused is aimed at restoring them to the status they were in before the duty towards them was contravened. The losses being compensated in such a case are referred to as expectation losses. A plaintiff may also demand to be remunerated for the cognitive stress and frustration that results from bodily injuries. Nevertheless, the plaintiff cannot be compensated for damages which could have been effectively handled through mitigation.
Task 2
According to Dunkel and Coleman (1997), liability refers to an obligation or responsibility that an individual or a corporate is expected to fulfill according to the legal decrees of which they are subject. For one to be held in liability, it means that they are compelled to be accountable for their actions as stipulated by the laws that govern them. Legal advisors often time find themselves confronted with a variety of tort liabilities; tort liability is a legal term used to refer to incorrect or immoral actions performed by individuals or commercial institutes. Despite the fact that such actions may not necessarily be in contravention of governmental or contractual laws, they still need to be rectified. There are certain characteristics that are universal to tort liability; the first is the concept of duty. According to Abubeker and Michael (2009), duty refers to the responsibility or commitment that an individual or organization has towards another. The second concept is breach of contract; this refers to the failure of an individual or a person to fulfill the responsibilities that they have towards another. This failure may result to the third concept referred to as proximate cause; in the legal field, proximate cause is used to describe any straight forward damages or injuries suffered by an individual or institute due to a breach of duty against them.
Dunkel and Coleman (1997) further assert that for tort liability to be considered against any party there must be sufficient proof that there were actuality damages that were suffered by the complainant as a result of breach of contract. There are a variety of tort liabilities that are recognized in the legal fields. Intentional tort refers to the deliberate breach of contract by an individual with the aim of causing the resultant damages; a feasible instant is when an individual physically assaults another by hitting them. Such an action may attract criminal or private repercussions aimed at paying damages to the victim; an example of intentional tort is when an individual knowingly gives false information about another leading to damages and harm on the victim of the malice. Dobbs and Paul (2001) assert that torts can also be unintentional; this refers to instances when the damages or harm caused on an individual by another; more often than not, this tort liability occurs as a result of negligence where one individual did not honor the duty that they have towards another. Despite the fact that legal advisors rarely find themselves cumbered by the third form of tort liability referred to as strict liability, it is still a very significant one. Strict liability refers to instances when legal advisors are held liable for damages suffered by another. Statuary torts are those which are accorded special consideration by the law; these torts are usually those that deal with the associations and interactions that occur between humans. Statuary torts are mostly evidenced in the determination of injuries caused due to discrimination or prejudice meted out on an individual as a consequence of their religious convictions race or gender (Dunkel and Coleman, 1997).
As stated by Abubeker and Michael (2009), contractual liability refers to a promise over which the judicial systems may exercise powers of enforcement. Under the principles of contractual liability, commercial ventures are expected to be accountable for all its deeds as well as those that of a represented company. In insurance, contractual liabilities are formulated with the objective of covering individuals from liability of actions not exclusively left out of the insurance statement. Contract liability in tort refers to the regulations that are set in place to ensure that either member of a contract compensates the other in the event that either party’s actions cause loss or damage to the other.
According to Roach and James (2009) liability refers to the act of an individual or corporate being held accountable or answerable for their actions which caused damages, injuries and/or losses to another. According to Abubeker and Michael (2009) negligence refers to instances when a defendant, by their irrational conduct, unknowingly or unintentionally causes harm or damages to the complainant. In the legal realms there are four conditions that must be fulfilled for an action to be affirmed as that of negligence; firstly, there must be a duty that the defendant is accountable for towards the complainant. Secondly, Dunkel and Coleman (1997) state that the said duty must have been infringed upon, leading to direct damage or harm upon the plaintiff. For the damages or harm caused to the plaintiff to be considered valid, they must be acknowledged by the law. Liability in negligence refers to the responsibility of a defendant in recompensing a plaintiff on the damages and losses incurred as a result of the defendant’s negligence. According to Abraham (2011) this liability is, to a great extent, determined by the ability of the defendant to practice reasonable care. In some instances, the dependant is till held liable for their actions regardless of how hard they tried to act under the guidelines of reasonable care. In other instances the defendant may be held unaccountable if they are able to attain conformity to reasonable care. As a consequence, there exists the possibility of differing liabilities as regards negligence, with some liability being perceived as being more stringent than others (Abraham, 2011).
According to Dunkel and Coleman (1997) vicarious liability refers to the instances in which workers are caught up in tortuous conduct but their employers are held liable or accountable for their actions. According to the ideologies of vicarious liability, the employer is held accountable for such actions regardless of the fact that the employer has not dome ay mistake. There are a variety of reasons as to why vicarious liability is practiced. Firstly, According to Abubeker and Michael (2009), vicarious liability functions under the principle that the employer of the worker who engaged in a tortuous act is better placed to handle the damages and injuries caused due to the fact that they are more financially endowed and also because they benefit financially from the tasks performed by their workers; as a consequence, the employer should also be ready to shoulder their workers’ faults. Abraham (2011) asserts that the existence of vicarious liability also serves to increase the vigilance of employers in managing their workers. Vicarious liability is assumed only if the tortuous act was performed by the worker before the expiry of their tenure.
According to Roach and James (2009) a good example is the Scott versus Davis case 175 ALR 217 in the year 2000 in which the plaintiffs were demanding compensation from the owner of an airplane after his pilot caused an accident in which the plaintiffs were injured. The plaintiffs were convinced that the owner of the plane was the principal and the pilot just an agent; they thus argued that the pilot’s negligence ought to be compensated by the owner of the plane.
Task 3

JUSCO Company
Document:
Department:
Title:
Doc. No. :
Rev. No:
Effective Date:
Sheet No. :
                                                             PURCHASE AGREEMENT
This pact of purchase has been formulated on 18th June 2012 (the Effective Date) between Jusco Company, whose address is 1435, England, UK (1st party) and Clinton Agro-Company, whose address is 4583, Wales, UK (2nd party).
This pact is aimed at elucidating the purchase of potatoes and tomatoes by the 1st party from the 2nd party.
1.      Scope of Purchase
·         The 2nd party shall be responsible for the shipment of goods to the premises of the 1st party; an official representative of 1st party will receive the shipment and assess it in the presence of officials from 2nd party.
·         In the event that goods are damaged after their departure from the 2nd party’s premises but before being received by the 1st party officials it will be assumed that the officials representing the 2nd party caused the damage; consequently, the vicarious liability will be upon the 2nd party.
·         Goods delayed by 2nd party for more than twenty four hours will not be accepted and this will be considered as a contravening of this contract by the 2nd party.
·         Payment for goods purchased will be made immediately after the inspection and receiving of goods by 1st party.
2.      Supervision
·         Jusco Company commits itself to making sure that there will be an official from the company present at all business transactions. This official will be mandated with the duty of ensuring that the received goods are in a satisfactory condition.
3.      Injury to Workers
·         Jusco Company is vested with the duty of ensuring the safety of officials representing the 2nd party during the unloading of goods in the 1st party’s premises. Any injuries or damages to the goods or 2nd party’s officials at this point will be the liability of Jusco Company.
PREPARED BY
APPROVED BY
Name



Designation



Signature



Date















Work Cited
Abraham, K. S. (2011): ‘Strict Liability in Negligence’ University of Virginia School of Law
Abubeker, A. and Michael, D. G. (2009): ‘Extra-Contractual Liability’ The Justice and Legal
System Research Institute
Blight, B. (2000): ‘Contractual Liability’ AURIMS Annual Conference
Dobbs D. B. and Paul T. H. (2001): ‘Torts and Compensation: Personal Accountability and
Responsibility for Injury 4th ed. St. Paul, Minn; West Group
Dunkel, N.W. and Coleman, J. K. (1997): ‘ART Elective: Legal Issues’ SAACURH
Roach, Card & James (2009): ‘Business Law for Business, Accounting, and Finance Students’
Oxford University Press
Sheinman, H. (2000): ‘Contractual Liability and Voluntary Undertakings’ Oxford Journal of
Legal Studies, Volume 20, No. 2, pp. 205-220