Custom «Business and Employment Law» Essay Paper Sample

(I) Advise Simon if He Has Any Contractual Liability to Fernando and/or Arthur

Before making any grounded conclusion on whether Simon is contractually liable to Fernando and (or) Arthur, it needs to be verified whether these personalities have concluded a contract and failed to perform his contractual obligations in the ultimate analysis. Considering the relationships between Simon and Fernando, it is possible to infer that this form of relationship cannot be recognised as contract because it lacks all mandatory elements of a contract, such as an offer, acceptance, intention to create legal relations, and consideration.

From the start, the advertisement in the local paper by Simon is not an offer, but an invitation to treat, or, in other words, an invitation to start negotiations. Hence, the advertisement does not bind Simon and Fernando as contractual parties, because, in order for a contract to be formed, Simon and Fernando had to reach mutual assent. That is, each party to the negotiation had to give his consent to the terms and conditions of selling/buying the book by Tolkein. For the purpose of negotiation and mutual assent, the seller (Simon) had indicated his telephone number and e-mail. Albeit Fernando has shown a clear intent to buy the book at issue by inserting a cheque in the post for the entire requested price, Simon has no liability to send the book to Fernando, due to the absence of mutual assent (offer and acceptance). On these grounds, Simon has no contractual liability to Fernando.

As far as the relationship between Simon and Arthur is concerned, it is feasible to make inference that this form of relationship can be recognised as contract. Analysing this relationship, it needs to be discerned such elements as an offer, acceptance, intention to create legal relations and consideration. The first element – an offer – manifests itself through Simon’s reply to Arthur’s email stating the essential terms and conditions (sale of the book at 7000 pounds). Arthur’s next email to Simon acknowledging that the former does want to buy the book for 7000 pound must be recognized as acceptance as it expresses Arthur’s consent to be bound by the agreement with Simon.

The last two elements of contract can also be detected in the relationship between Simon and Arthur. Thus, intention to be legally bound is presumed, in view of the fact that the parties to the relationship have not expressly stated the opposite. The fact is that the contract does not exist merely due to the agreement between two or more parties. The parties to the contract are required to have intent to enter into a legally binding agreement. According to the assignment, Simon had intent to sell the book to Arthur upon receiving the latter’s confirmation, and Arthur had intent to buy the book as he immediately replied to Simon with confirmation and by sending the necessary sum of money. Thus, the two parties intended to enter into a legally binding agreement. This could be inferred from the circumstances of their negotiations. Consideration, the last mandatory element of contract, can be associated with the price paid by Arthur for the promise of Simon to sell the book. The price constituted 7000 pounds sterling.

However, there is one issue that questions the existence of contract between Simon and Arthur: Simon mistook Arthur’s email (letter of acceptance) for spam and so deleted it without opening. This mistake provides Simon with no grounds of omitting his contractual liability as Arthur has expressed his assent to Simon’s offer in a manner requested and authorised by the offeror. Therefore, Arthur’s email to Simon may be qualified as a bargained-for response. Moreover, the ‘mailbox rule’ clearly articulates that an acceptance is considered effective and accepted upon dispatch if the offeror explicitly authorizes the offeree to provide the acceptance via mail, even if the acceptance is destroyed or lost in transit. All things considered, Simon has contractual liability to Fernando concerning the former’s failure to sell the book to the latter.

(II) Fern’s Options on Possible Contractual and/or Tortuous Claims

As it ensues from the analysis of Fern’s case, Fern is entitled to a series of tortuous claims against the driver and employer. With regard to Good Buys, the common law clearly articulates that if a road accident takes place while a person is operating a car as a means of carrying out his professional obligations or a means of performing some errand for his or her employer, there is place for employer liability. However, in Fern’s case, the question of whether or not Good Buys will be liable for Joe’s deeds is dependent on the existence of particular legal reasons for ascribing liability to the employer.

Thus, the common law establishes two major ways when an employer can be considered responsible for a road accident triggered by its employee: 1) negligent act or omission on the part of the employer; and 2) vicarious liability. As far as the first situation is concerned, it needs to be clarified that employer negligence occurs when, for example, employer fails to adhere to the principle of reasonable duty of care to ensure that the employee is completely a safe driver. The minimum standard of care is that the employer must verify whether the truck driver has a commercial driver’s license, and satisfactory driving record. In Fern’s case, it is possible to deduce that Good Buys, the employer, has failed to ensure that Joe is a good drive, and, therefore, failed to perform reasonable due care.

The second situation when an employer can be recognized as liable for a traffic accident caused by its employee is vicarious liability. As a common law doctrine, vicarious liability postulates that the agent’s deeds are similar to the deeds of the principle who directs the agent. This case shows that an employer is the principle that guides the agent, and, when the employer commands his employees to take some action, this can be viewed as if the employer is acting himself. Vicarious liability takes place when the employee is directly conducting some action for the employer at the precise time when the event of accident takes place.

Returning to Fern’s case, it needs to be underlined that Fern’s personal injury suit against Good Buys in terms of vicarious liability may succeed if it is proved that Joe caused accident and inflicted injuries while operating on behalf of the employer. Otherwise, Fern may file a tortuous claim against Joe. Taking into consideration that Joe has exceeded the permitting driving speed when moving to his friends, it is suggested that Fern have claims against Joe who was not carrying out his work duties at that moment.

In summary, both negligence on the part of employer and personal liability of Joe may underlie Fern’s tortuous claims against Good Buys and Joe. In view of the above, Fern may have the following tortuous claims: a) negligence concerning Good Buys; and b) strict liability concerning Joe. The notice that Good Buys takes no responsibility can not prevent it from liability, because this notice is not a public warning of a danger of injury. In other words, the notice would have been considered a slightly limited defence if the defendant could have proved that a warning had been given expressly to the claimant or by a public notice that there was a danger of injury. In view of the above, it is possible to come to the conclusion that the general notice that the defendant takes no responsibility for any damage or loss to persons or property cannot be recognized as a legal notice, because it is contrary to the fundamentals of law, does not establish liability limitations, but seeks to adopt immunity from tortuous claims. Both the common law and UK statutory law does not grant individuals and legal entities immunity from legal liability. Therefore, the notice is unlawful and has no binding (legal) force.

All things considered, the assigned case brings into light facts which prove that both Joe and Good Buys are responsible for the injuries inflicted as a result of the car accident. The liability of Good Buys originates from the negligence on the part of the employer, while Joe’s liability is strict liability because he was driving too fast.