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The
facts tells us that the Will, Project Manager of NewDay Construction Limited (hereafter
‘ND’) has approached and ask Sean, Sales Director at BIMSoft (hereafter
‘BS’) to quote a price for the installation of BIM generation and
Management software in order to full fill the condition for the company to be fully
compliant with the Building Information Modelling (hereafter’ BIM) Level 2.
Sean offered the price £10,500 including the installation of cost of software
and appropriate staff training with the validity of price for one week.

Will
also receive an advert by email from the Auto BIM Ltd (hereafter ‘AB) for Level
2 compliant at a price £9000. Will call to AB and place an order but after
further discussion with one of technical staff, Will withdraws his order as
actual of installation was exceeding £12000.

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After
the day, Will called to ‘BS’ and accept the offer of £10500 given by Sean with
the additional clarification that whether the cost also include the on-site
training for any new staff which to be recruited within six months of the commencement
of  Contract.

Will
was unsure about the his decision (as Will was not sure that contract to be
awarded or not) and cancel his order via telephone to ‘BS’ (After how many
days) but came to know through the secretary that recordings on the answering
machine has already been given to Sean, and he will be listening to them
shortly, however she will make a note of his withdrawal wish

Through
Scenario it is also determine that ‘BS’ has a system which triggers automatic
messages to their engineering team when an order is placed and team making preliminary
inspecting the premises of the Customer for the installation of software. And
this routine is carried after Will order is placed.

In
the other part when Vishnu, an engineer from the BS left the toolbox near to
entrance of a pedestrian walkway and Sarah, a student lived nearby, fell
awkwardly and injured her right ankle, shoulder and neck, Sarah also suffered
further injuries to her ribs when being transport to hospital due to the hard
padding on the stretcher and ‘bumpy ride’ and as per doctor assessment at least
Sarah cannot play football (is a member of football team) and also not able to
complete her school semester.     

Area
of Law

The
first part of scenario is pertains to formation and element of contracts i.e. invitation
to treat, offer, acceptance, counter offer, revocation of offer, legal capacity
of companies.  

Following
other principal issue to be considered to analyze that whether Will formed the
contract with BS or AS;

·        
Whether Will approach to Sean was invitation to treat?

·        
Whether Sean quote was offer or invitation to treat.

·        
Whether AB advert by email to Will was offer, advertisement
or invitation to treat.   

·        
When Will telephone to AB and places the order by voice
recording whether the contract was concluded or Will successfully revoked the
offer when he called to Secretary and confirmed that recording are not listen
by Sean and she will inform for withdrawal wish of Will.  

·        
Is will contract is cancelled by withdrawing the order.

·        
Offer with the
condition of appropriate training was certainty of offer which is to be
accepted first then six months are required for the deployment of staff. Its
means duration may reach of 9 months.

1.    Weather Will
concluded the contract with BS and AUTO SOFT (AS)

Contract formation,

A
Contract will come into existence if an agreement has been reached. The test
whether an agreement has been reached is depend on external evidence, the court
will consider the circumstances of case when a reasonable man would think that an
agreement has been reached and a contract was created1

A
Contract is an exchange of the promises that constitutes a legally binding
agreement between individuals or corporate entities or a mixture of both. Contract
will be concluded when an offer made by one party (the offeror2) and accepted by another
(the offeree), it will indicated that offeror willingness to enter into a
contract an certain terms without further negotiations. There must be meeting
of minds (consensus in idem) on all relevant points in each contract.

In
the formation of Contract the basic principal is that there must be an offer,
followed by an acceptance meeting the terms of the offer. A Contract can be
made verbally, In writing or by conduct but in all cases, the proof of a valid
offer and acceptance must exist, generally the England, Wales and Scotland
courts does not require contracts to be in writing.

In
order to formed the valid contact, the following must exist

·        
Offer.

·        
Acceptance which should meets the offer requirement.

·        
Consideration.

·        
Intention to create the legal relations.  

An
offer must be communicated to the other party. An offer is a proposal from one
party with the intention to legally bond with definite terms like if it is
accepted legally binding contract will be concluded.

An
offer must be distinguished from an invitation to treat which is mainly an
expression of willingness to negotiate. An invitation to treat is not offer and
cannot be accepted in law as invitation to treat can be described as an
invitation to enter into negotiations. The offer can be accepted or rejected3. An Advertisement in
website, newspaper, a magazine or on TV also comprise an invitation to Treat4     

An
acceptance will be effective only when it has been communicated to the offeror.
There are different mode for the communication by here it is has been
communicated by Telex recording machine. 
The general rule of acceptance is offer will be accepted when received
by the offeror means when acceptance intimated5

Acceptance;
Acceptance of the
offer must be communicated and is only valid if it is communicated by a person
who have the authority to do so (Powell v lee (1908)). The offeree is
responsible for ensuring that acceptance is communicated to the offeror6.  The acceptance must be unconditional and to
be relevant to the strict terms of the offer, if anything differ to be treated
counter offer , following are the four main important areas which should be
considered in relation of acceptance

Oral

Written

Conduct
or silence

Electronic
Communication    

Communication
of acceptance is another objective concept.

A
telephone is clearly instantaneous communication when you get reply to your
telephone calls, most probably voice mail message is the message I am accepting
the offer, communication the person phone they have blinking red light but some
time voice not listen to for a day or two , the kind to be effective
commination and what about other caller when voice mailed is played this is
where is the objective principal takes over although this area of law,
application of law  is relatively
undeveloped, In the given scenario we can say that there is communication for
acceptance or its ought to commination its not dismiss like to ignore voice
mail or not to handle it efficiency but yhere is mucg rome for debate around
communication here, the general principal is that acceptance is effective when
its communicated, most cases involve communication when there is indication of
acceptance and also other statement thinks add to qualification of that
acceptance, the draft common frame of reference to one state to any formal
conduct of offree is an acceptance it its indicat, sent to offeror,
silience  cannot be treat as acceptance,
in looking at the torist case the contract will complete when acceptance is
received by the offeror and the contract is made, placed where is the
acceptance is received that in the case of telex commication, the placed whre
the contract the made is the place where is offeror received the notification
of acceptance by the offeree, in this case English company and ditch company
instadam concluded a contract by the telex system of commination where by
message by can be typed on tele printer one country and recorded in other
country, an offer sent by the telex in England offeror to pay 239 pound for 400
ton japnies caftoos, this was accepted by telex, the contract made in England
and leef should be given, this based on brinkaponlay case

Revocation:
The offer can be
revoked at any time before acceptance to be made. The rule applies even when
offeror has promised to keep the offer after open for a particular period of
time. Authority has been established in Case of Payne v Cave 1789 and
Routledge v Grant (1828), in order to effective, the renovation of an offer
must be communicated to the offeree7.The revocation can be
communicated by a reliable third party as per fact established in case
Dickinson v Dodds (1870)

Counter
offer:  When an offer will be established, it
is essential to ascertain whether valid contract has been taken place. A
counter offer will occur when the offeree attempts to vary the terms of the
offer8. counter offer will
destroy the original offer 

Information
Request: Some request
are required some further information, for example if any person ask’ Can I pay
by Cheque, Will you accept the payment by credit card such information will not
treated counter offer. However if the question pertains to the manner in which
contract will be performed as in Hyde v Wrench. 

Ø 
Whether Will request was invitation to treat or Request
for information?

Ø 
Whether Sean quote was offer?

Ø 
Whether Will have the legal capacity to enter into
Contract with BimSoft or AutoBim and make the misrepresentation if does not
have legal capacity.

Ø 
Was Autobim Advert by email was constitutes an offer or an
invitation to treat.

Ø 
Will telephone to AutoBIM and places an order was
acceptance or revoked of offer and if it was acceptance then whether Contract formed
with Autobim or not

Ø 
Will Telephone to Bimsoft and place and record the order
on machine was the acceptance and in result of that Contract was concluded.

Ø 
Will Telephone to Secretory and withdraw the order was
revoked of acceptance

Ø 
Is there counter claim from Sean to Will keeping in mind
acceptance was made by Will after recording the message on machine.

Ø 
Is acceptance was revoked as Seah has not yet listen the
phone recording.

Conclusion

As regards the scenario at hand, in case of Autobim, contract
has not been reached as the  placing the
order to recording machine was counter offer nor the acceptance of offer or
request for the information, in the second scenario  it is also rule that offer, accepted should be
reached to offeror as its was not listing by the sean therefore offer
acceptance was not made and resultantly contract was not made, however Sean can
make the counter claim that as Will has acceptance the offer, therefore he has
recorded the audio message and after recording has successfully done and it was
within the working hours therefore contract has been reached,  in this case Will can defend as advised in
aforementioned points.

In Autobim, its straightforward for Will that Autobim was
invitation to treat and did not made offer the therefore no contract is made as
there is no valid offer acceptance from the AutoBim. So if No Acceptance mean
no Contract was reached.  

Advise Quotation 2

Area of Law:

Vicarious liability (Due to negligence one employee) ,
Contributory negligence)

Issue

Ø  Sara Claim against Vishnu
Employer.

Ø  Whether Vishu is the
employee of Bimsoft

Ø  Whether Sara is eligible to
claim the liability against Bimsoft

Ø  Whether Sara can claim the
liability against the hospital due to negligence or special care as she was
already injured.

Ø  Doctor advises Sara is unfit
for the three, in this either Sara liability will exceed more than three month.
But how much and what is way of compensation

Ø  Whether Sara also getting
some benefit from the football team, can Sara claim such charges from the
hospital and Bimsoft

Ø  Sara Also school student
when she has paid the school semester fee whether Sara is also liable to get
such charges.

 

 Rule:

With regard to ‘vicarious liability’ in practice, a
person is liable for his wrongdoing acts but in certain cases, a parson could
be liable against wrongful acts of another. Mostly it is happening in
employment situations where an employer is vicariously liable against
wrongdoing acts of his employees if proved that he cause the injury to another
person. The other person can be another employee of the same employer or it can
be also different person. In order to determine either employer is vicarious
liable it is essential to establish that employee was liable in tort, and elements
of vicarious liability are found at the time of wrongful acts of employee, there
is not no need to reflect that employer itself was at fault to be vicariously
liable. Mostly employee tort found in the negligence’s cases but employer are liable
for other kind of tort as well, for example an employee harassment by another9.

The UK Supreme Court has established the close connection
test in the case10 and the traditional tests of vicarious liability have
been further modified through further cases11. In case12 Supreme Court has adopted two stages approached to
determine the vicarious liability

In current scenario, Sara have to prove the following test
to success in his claim which ware established by the court in case13  

Stage 1 – Essential Elements of the Relationship

In order to determine whether a case match the first stage of the
test the Supreme Court applied the five policy criteria

(i)           
the employer is more likely to have the means to
compensate the victim than the employee and can be expected to have insured
against that liability;

(ii)          
the tort will have been committed as a result of activity
being taken by the employee on behalf of the employer;

(iii)         
the employees activity is likely to be part of the
business activity of the employer; (iv) the employer, by employing the employee
to carry on the activity will have created the risk of the tort committed by
the employee;

(iv)        
the employer, by employing the employee to
carry on the
activity will have created the risk of the tort committed by the employee

(v)
the employee will, to a greater or lesser degree, have been under the
control of the employer

Stage 2 – Connection between the tort and the relationship between
the defendant and the tortfeasor

The claimant must establish that the employee was acting during
the course of employment when committed to tort as established in Various
Claimant.

Whether Sara can claim the vicarious
liability against Vishnu or his Employer (Bimsoft)?

In accordance of scenario in hand, the employer and employee
relationship has been established as Vishnu is the employee of BS and visited
the premises of W for the installation of software on behalf of employer
business activity and create the risk and committed the tort and albeit under
the control of Employer and cause the injury to Sara rise to vicarious
liability.  

Bimsoft can also make the counter claim and can defend the case by
involving the Novus Actus Interveniens and resultantly can be liable only for
the injury caused due to negligence of his employee nor further damages caused
by the hospital staff.   

Whether Sara can claim the vicarious
liability against Will?

It is not definite that Sara in position to claim against will as
Will does not know the following

1.   
A contract has been reached with BS and

2.   
BS engineering team is coming to visit his premises.

Whether Sara can claim the vicarious liability against Hospital?

In regard of scenario, Sara may also claim against the hospital, against
the ambulance negligence of duty of care but in case Hospital may also make the
counter claim that test for the remoteness of damage are not fulfilled. i.e
reasonable foreseeability test14  

Remoteness of Damages

As per established facts may be determine the following

1.   
Sara can claim the liability  

Conclusion

Following are the advice to Sara to establish his legal claim

1.   
Sara can claim the liability against Vishnu
and his employer but Court will not compensate the full liability as BS can
make the counter claim due to broken the injuries claim.

2.   
Sara can also claim against hospital due to
negligence of ambulance driver but beware for counter claim by the hospital
when remoteness of damages test to be applied.      

Overall Conclusion

 

Bibliography

7.1. TABLE OF CASES

7.2 TABLE OF LEGISLATION

7.3. TABLE OF CONVENTIONS

7.4 TEXTBOOKS

7.5. ARTICLES

Books

Taylor
R & Taylor D, Contract Law Direction (6th edn, Oxford 2017)

Stone
R, The Modern Law of Contract (12th edn, Routledge 2017)

McKendrick
E, Contract Law (11th edn,palgrave Macmillan 2015)

Arvind
T, Contract Law (1st  edn,
Oxford 2017)

Elliott
C, Quinn F, Contract Law (11th edn, Pearson 2017)

RichardS
P, Law of Contract (13th edn, Pearson 2017)

Houg
T & Fitchen K, Optimize Contract Law (2nd edn, Routledge 2017)

Stone
R & Devenney J, Text, cases and materials on Contract Law (4th edn,
Routledge 2017)

 Fafinski S&Finch Emily, Contract Law ( 4th
edn,Pearson 2015)

Turner
C, Key cases Contract Law (2nd edn, Hodder Education,2011)

Giliker
P, Tort (5th edn, Sweet& Maxwell, 2014)

Fafunski
S, Finch E, Tort Law (6th edn, Pearson 2017)

Harpwood
V, Principal of Tort Law(4th edn, Cavendish Publishing 2000)

Bermingham
V & Brennan C, Tort Law Direction (5th edn, Oxford 2016)

Oole
J, Casebook on Contract Law (12th edn, Oxford 2014)

Strong
& Williams, Complete Tort Law: Text, Cases, and Materials (2nd edn,
Oxford 2011)

Quinn
F, Tort Law ( 1st edn, Pearson 2017)

Turner
C, Key Facts Key Cases Tort Law (1st edn, Pearson 2014)

Oxford
Dictionary of law (5th edn, Oxford 2003)

Turner
C, Unlocking contract law (4th edn, Hodder Education)

 

1
Smith V Hughes 1871 , Forddell Estates LTD v Delitte 2014 CSOH 55 (Scotland);
Bieber V Teathers Ltd 2014 EWHC 4205 (England and Wales)

2 The
Cambridge dictionary definition of Offeror (‘a person, company, or organization
that offers to buy something from another person, company, or organization’),
Offeree (a person or an organization that is offered something, especially the
opportunity to buy or sell shares’).

3  Harvey v Facey 1853 AC 552 ( Harvey(H) sent
a telegraph to Facey(F) saying; ‘will you sell me bumper Hall pen (BHP)
telegraph lowest cash price, F replied’ lowest price for BHP is £900′ H replied’ we agree to pay £900 for BHP’. F would not go ahead H
brought an action against him, H action failed. The court held that F reply was
response to a request for information and not an offer. He was simply
stipulating the price he would sell at if he decided to sell.

4 See
the case Let us consider Partridge v Crittenden 1968 1 WLR 1204 An
advertisement was placed in a magazine advertising bramble finches for sale at
25 shillings each. The defendant was charged under the protection of Birds Act
1954 for offering live wild birds for sale Held; eld: The advertisement was an
invitation to treat, so the defendant was not guilty. He had not ‘offered’ wild
birds for sale. See other cases; Harris v Nickerson 1873 ; Carlill v Carbolic
Smoke Ball Co 1893 1 QB 256

5
Entores Lts V Miles Far East Corp 19552 All E.r. 493, Brinkibon Ltd V Stahag
Stahl1982 1 All E.r 293         

6

7
Byrne v Van Tienhoven 918800 5 CPD 344 (The defendant posted a letter in
Cardiff on 1 October offering to sell tinplate to the plaintiffs in New York.
The offer was received on 11 October and immediately accepted by telegram. On 8
October the defendants posted a letter of revocation which arrived with the
plaintiff on 20 October. HELD: he contract came into force when the telegram
was sent on 11 October. The letter of revocation could only be effective upon
receipt. The date of receipt was 20 October. This date fell after acceptance
had taken place.

8
Hyde v Wrench 1840 49 ER 132( Case precedent)

9 Majrowski
v Guy’s and St Thomas’ NHS Trust 2006 UKHL 34

10
Lister v Hall Hesley Hall Ltd

11 Four
Seasons Holdings Incorporated v Brownlie 2017 UKSC 80; Morrison
Supermarkets plc 2016 UKSC 11; Cox v Ministry of Justice
2016 UKSC 10; Various Claimants v Institute of the Brothers of the Christian
Schools 2012 UKSC 56; E v English
Province of Our Lady of Charity 2012 EWCA Civ 938; Viasystems
(Tyneside) Ltd v Thermal Transfer (Northern) Ltd 2005 EWCA Civ 1151;

12 Cox v
Ministry of Justice 2016 UKSC 10

13 Cox v
Ministry of Justice 2016 UKSC 10

14 Re
Polemis & Furness, Withy & Co Ltd 1921 3 KB 560

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