Concept Of Vindication In The Law Of Torts â€Myassignmenthelp.Com

Question: Discuss About The Concept Of Vindication In The Law Of Torts? Answer: Introduction One major classification of law is private Laws. These laws deal with peoples rights and obligations. The most common areas of these laws are the tort law and the business law. The law of contract deals with enforcement of contracts formed by the parties. On the other hand, Tort law allows a party to recover the damages suffered from the wrong actions of the other party. This paper will be illustration the application of both laws using two case scenarios. Issue as to Elements of a contract The determination whether there was a contract or not is a matter of testing the elements of a contract. For the law of contract to enforce a contract between the parties, the three major elements must be present. One of these is an offer. The law requires all contracts to start with one party proposing a deal[1]. The rules of an offer are that it must come from the offeror who is the party proposing it. Then it must be communicated to the other party referred to as the offeree. The party which the offeror expects to make a deal with. Also, there must be free will while making this offer. Another element of a contract is the acceptance. The basic rule is that once the other party receives an offer, the law expects that party to respond to it through accepting to make a contract.[2] Similarly, an acceptance must come from the offeree, must be communicated to the offeree, and it must be out of free will. The third element that must be present is a consideration. There must be a bargain that will end up with parties exchanging something of value. The other term is the intention to create a legal bond. This rule dictates that parties should be initially intending to make a binding management. Courts usually analyze the available evidence to decide whether there was an intention to create a legal relation.[3] Other elements are the capacity of the parties to contract, the legality of the agreement, consent of the parties, and some contracts may require being in writing.[4] Therefore, in determining whether a contract existed between Johnny and Marie, the court will examine this agreement against these elements. But since all these elements are available, then there was an enforceable agreement. Issue as to mistakes in a contract The mistake arose when Steven mistakenly asked one of the office staff to send Quotation A to Marie who was their potential customer. Unfortunately, Marie, accepted the mistaken quotation creating a binding agreement. There are three types of contractual mistakes. The first mistake is known as the common mistake. This mistake arises when both parties commit the same error[5]. There are three categories. The Res extincta mistake happens when parties form the contract believing that the subject matter exist when it does not exist.[6] Another common mistake can arise through Res sua when party contracts for goods that he actually owns.[7] The second class of mistake is called a mutual mistake. This one happens when parties have two distinct understanding of the facts. The court usually employs an objective test to determine to see whether it can save the contract. The last mistake is called a unilateral mistake. A unilateral mistake can be in two ways. One when one party makes a mistake and the other one knows the mistake but remains silent to let the contract formation continue. This one makes the contract void. The second one is where one party makes a mistake, and the other party does not know about the mistake so they both continues to the formation of the contract. This mistake does not make the contract invalid as found in Centrovincial Estates PLC v Merchant Investors Assurance Company Ltd [1983][8]. In this case, the landlord intended to offer a lease of 126,000 a year but instead offered for 65,000 per year. The tenant did not know of the mistake and hence accepted. The court affirmed that the contract was valid. Based on this analysis, the mistake in the contract between Johnny and Marie was a unilateral mistake where one party did not know of the mistake. Therefore, the contract was valid. Explain what will happen if the Lame Duck Restaurant is obliged to provide the premises for the banquet, but refuses to do so. Issue as to anticipatory breach of repudiation The action will constitute a breach of contract. Where one party breaches a contract, the innocent party may bring a cause of action to the court. An action can be intended to seek monetary compensation. These damages are meant to place the innocent party in the situation it could have been had the guilty party performed its promises.[9]Another possible action in the law of an injunction. This one seeks to prevent a party from breaking the promises. Specific performance is another action that requests the court to order the breaching party to complete what it promised in the contract. Another action is called repudiation. This action allows the innocent party to treat the contract as ended. From this, the innnocent partty has thee right to suspend its obligations. In this case, Lame Duck Restaurant rfuses to provide the premises for the banquet, it would commit a breach that attracts an action for repudiation or an anticipatory breach of repudiation. When this breach happens, the innocent party is only left with two choices. One is to take the repudiation as a breach, end the contract and sue for the damages. The second one is to wait and see whether the breaching party will change its mind and honor the agreement.[10] In Hochster v De la Tour [1853][11], the defendant canceled the contract with the claimant on 11th May. The contract was supposed to commence on 1st June. The claimant sued the defendant on 22nd May for the breach of contract. The court affirmed that the breach had happened despite that the actual date of performance had not commenced. Marie can choose to end the contract and sue for damages either the actual breach had occurred or not. There are fundamentally three elements for a claim of negligence. The first one is the duty of care. This element was first established in the case of Donoghue v Stevenson [1932][12] The claimant found a decayed snail when she poured the beer that remained in the bottle into her glass. She sued the defendant claiming that she suffered damages amounting to 500. The court affirmed that a duty of care existed from the manufacturer and a decomposed snail in the bottle was a breach of that duty. Later this principle was straightened in the case of Caparo v Dickman [1990][13] where the court set three elements for the duty of care. The second component is the breach of the duty. The claimant must prove that the defendant breached his duty of care as held in Nettleship v Weston [1971] [14].This was a case between a third lesson driving student who caused an accident injuring his instructor. The court found that the third lesson student breached his duty of caring for the instructor. The third element that the claimant need to demonstrate is a connection between the damages and the defendant breach of action. The practical approach is the but for test which find a direct link between the breached obligation and the loss.[15] The next approach is to find whether the damages are too remote. If they are too remote, the claimant cannot recover them as found in Barnett v Chelsea Kensington Hospital Management Committee [1969][16] The claimant brought an action against the hospital that refused to examine her deceased husband. However, the husband conditions had resulted from the deadly arsenic poison which would have killed him anyway. The court declined to award the damages as the cause of the death could have resulted from the arsenic poison. Following this analysis, Jonny owed a duty to care for the people who were in the building, and he breached that duty. Advise Johnny on whether he is liable for actions of his gardener. There are some situations in the law of tort where one person will be liable for a negligent act of another. These situations are called vicarious liability. In particular, a principal can be liable for the negligent conduct of an employee or an agent that causes harm to the third party. An employer can be vicariously accountable for the actions of the employee who while undertaking authorized work does a careless action. If a third party suffers due to that action, the employer will be liable. An application of this rules was held in Century Insurance Co Ltd v Northern Ireland Road Transport Board [1942][17]. A tanker driver had brought petrol to the garage. He then decided to smoke a cigarette while loading the tank. The cigarette caused an explosion. The court shifted the liabilities to the employer because the driver was carrying out the employer's work. Advise what damages have to be paid for: medical expenses, money lost by canceling holiday or both? There are various types of compensatory damages that a person can receive. Normally, these damages are measured either as general or special damages. General damages are those damages which are non-economical.[18] For example, a claimant can receive compensation for emotional distress, physical pain, chronic suffering, or impairment. Special damages are also referred to as pecuniary damages. These are an actual economic loss. The court awards these damages to cover the present victim's loss, future loss, present medical bills, future medical bills, the cost associated with canceling of trips, etc. These damages are unique depending on each person.[19] From this analysis, Johnny would be liable for the special damages which would include the cost of future and present medical bills, out of pocket expenses and would be liable for the expenses resulting from the cancellation of the trip. References Riches, Sarah, Vida Allen and Denis J Keenan, Keenan And Riches' Business Law (Pearson/Longman, 9th ed, 2009) Stone, Richard, Text, Cases And Materials On Contract Law (Routledge, 2nd ed, 2014) Mann, Richard A, Barry S Roberts and Len Young Smith, Smith Roberson's Business Law (South-Western Cengage Learning, 15th ed, 2012) Beatty, Jeffrey F, Susan S Samuelson and Dean Bredeson, Business Law And The Legal Environment (South-Western Cengage Learning, 6th ed, 2013) Miller, Roger .L, Cengage Advantage Books: Business Law Today, The Essentials: Text And Summarized Cases (Cengage Learning, 11th ed, 2016) Saprai, Prince, "Balfour V Balfour And The Separation Of Contract And Promise" (2017) 37(3) Legal Studies O'Sullivan, Janet and Jonathan Hilliard, "The Law Of Contract" Etherton, Terence, "Contract Formation And The Fog Of Rectification" (2015) 68(1) Civil-engineering Legal Problems Varuhas, J. N., "The Concept Of 'Vindication' In The Law Of Torts: Rights, Interests And Damages" (2014) 34(2) Oxford Journal of Legal Studies Centrovincial Estates PLC v Merchant Investors Assurance Company Ltd [1983] Com LR 158 Hochster v De la Tour [1853] 2 E B 678 Donoghue v Stevenson [1932] UKHL 100 Caparo Industries Plc V Dickman [1990] UKHL 2 Nettleship v Weston [1971] 3 WLR 370 Court of Appeal Barnett v Chelsea Kensington Hospital [1969] 1 QB 428 Century Insurance Co Ltd v Northern Ireland Road Transport Board [1942] AC 509, HL