Business Contract between Malcolm and Georgia - Assignment Example

Business Law Name Institution Date Business Law Introduction Contracts are pacts that two parties enter in their own free will with the aim of developing a legal liability that can be done orally or in writing (Carvan, 2002). More often than not, parties opt to sign contracts in order to ensure each party is committed to the agreement and they are able to fulfill their part of mandate or part of the deal. According to Vermeesch & Lindgren, (2005), contracts are legally binding and caution should be exercised between parties to ensure a contract is not confused with a promise, which may lack the full standing of a contractual agreement. Contract laws differ significantly across jurisdictions (Graw, 2002). There are instances when parties to a contract disagree and may seek to terminate the contract due to harm caused for failing to comply with the terms and conditions of the contract or as a result of breaching the contract as discussed by Gibson & Fraser, (2007). This report seeks to critically analyze the contractual issues arising from a business contract between Malcolm and Georgia. The report shall then offer effective and appropriate advice to Malcolm as to whether he can sue Georgia for breach of contract. Contractual issues In order to ensure that Malcolm has the basis for stopping the payment on the $700 cheque he gave Georgia, it is crucial for Malcolm to validate that he was in a contractual agreement with Georgia. To do this, Malcolm must demonstrate that the contract contains key elements that attest to the fact that the agreement made was a contract and therefore, legally binding. A formal contract must have an offer and acceptance, which is a manifestation of the willingness of both parties to enter a deal on specific terms and conditions mutually agreed by both parties and upon acceptance, the parties are legally bound by the agreement (Graw, 2002). The element of acceptance connotes full and unconditional consent to all the terms and conditions indicated in the offer either orally or in written form (Vermeesch & Lindgren, 2005). Based on the case, both Malcolm and Georgia had signed copies attesting to both parties accepting the offer. Since Malcolm signed the contract, regardless of the fact he did read and pay keen attention to the exclusion clause, it indicated that he accepted the terms and conditions of the contract and therefore, Georgia was not liable to harm on the pets. The exclusive clause makes Georgia free of any costs that might arise as a result of harm or damage done to the pets. Nevertheless, Georgia made oral offer and acceptance to not only offer quality home care pet service but also gave Malcolm an impression that he was in a position to offer professional and due care for the pets. A contractual agreement also entails the element of scope and content, which depicts the terms, conditions, construction, and aspect of privity, inclusion and exclusion clause and classification (Carvan, 2002). It is crucial for both parties to be responsible to reading between the lines in the contract and fully comprehend it prior to signing it and binding themselves to it (Graw, 2002). Based on the case, Malcolm did not read the scope and content of the contract which had an exclusion clause, which made him liable to any harm that could occur on the pets. Be it as it may, the exclusion clause cannot apply because it did not cover liability caused by negligence on Georgia’s part. According to the case, the death of the tropical fish was not due to their specific vulnerabilities as included in the exclusion clause. In addition, Georgia was liable for paying remedies to Malcolm because, the exclusion clause even if it was to apply on the tropical fish, it did not include liability due to harm, and damage inflicted on the rabbit and Malcolm’s furniture and house respectively. Primarily, the scope and content of the exclusion clause did not cover negligence and it did not cover the rabbit, the home and the furniture. Torts are civil offences which may not necessarily be illegal in nature, but it causes harm to another person (Baker, 2002). Based on tort law, the conduct of an individual may not be illegal but it can unfairly cause harm or loss to another person (Baker, 2002). According to the case, Georgia although he did not do anything illegal other than incorrectly feeding the fish with the rabbit food and the rabbit with fish food and failing to clean the aquarium, his actions contributed to the harm to the pet, damage to Malcolm’s house and furniture, Malcolm’s financial loss due to death of the expensive fish and the failed financial prospects since his rabbit was unable to participate in the show that could have brought in $10,000,if the rabbit could have won. According to the tort law, Georgia is liable to giving Malcolm remedies for harm and financial loss experienced as a result of Georgia’s actions. Although the contract was meant to cover pet care only, Georgia’s misconduct caused the damage on the furniture and home, giving Malcolm the basis for not only stopping the payment of the cheque but also seeking remedies for damages on the furniture and home. Under torts, there is the negligence torts, which are civil wrongs that are as a result of a person’s failure to take due diligence against any risks that can generate potential harm as noted by Baker, (2002). For instance in the case, Malcolm left his pets under the care of Georgia but the fish died, the rabbit was in a critical condition, his furniture was damaged and his house was flooded. Despite Georgia’s credentials and his personal statement that he is a professional, an animal lover and an individual who can be relied on to take care of animals, he neglected the animals by feeding them wrongly and kept them in unsafe environment, which makes him liable to professional negligence for failing to offer the required pet care and his failure to take due diligence to ensure the pets were not only safe but also healthy. Under the negligence tort, Malcolm has the basis for suing Georgia for neglecting the pets left under his care, which upon signing the contract, the pet were the responsibility of Georgia. Under the conditions necessarily for terminating or ending a contract is the breach of the contract by one or both parties as indicated by Carvan, (2002). In this case Malcolm had to end the contract as his animals were not taken care of as agreed. There are instances when a frustrating event might prevent parties from performing as planned and this may have the effect of terminating a contract (Carvan, 2002). Based on the case, the contract was viable for termination since one party, Malcolm was aggrieved due to death of the tropical fish, deteriorating physical health of the rabbit and damaged household goods. Advice for Malcolm Based on the facts spelt out in the contract and the oral agreements made between Georgia and Malcolm, the advice for Malcolm is that he not only have the basis for stopping the payment on the $700 cheque he gave Georgia for the provision of home pet care service but also seeking remedies. Malcolm was very specific in mentioning that he required home pet care for both his award winning rabbit and his tropical fish and Georgia gave a verbal consent and a written contractual agreement accepting the responsibility to offer the care required for the pets. In oral form, Georgia gave Malcolm the promise, which was also included in the contract that she would offer professional care for the pets. This she failed to do since the fish did not only die but also due to breach of contract she neglected the environment where the fish was, which caused flooding resulting in damage on furniture and to the house. Therefore, Malcolm should seek financial remedies for the death of the expensive fish, worth thousands of dollars, financial remedies for the failure of the rabbit to attend the show, which the rabbit had the potential to win and financial remedies for damage on house and furniture caused by Georgia’s negligence. It is important to note that although Malcolm did not read the contract and pay attention to the exclusion clause, the exclusion clause DOES NOT exempt Georgia from liability and paying up remedies since the death of the fish was not due to specific vulnerabilities of the tropical fish as indicated in the clause but it was due to Georgia’s negligence and her failure to exercise due diligence to safeguard against any harm that could occur on the pets. Other than that, the exclusion clause does not cover harm done to the rabbit and the damage on the house and furniture caused by Georgia’s negligence. Although the furniture and the home were not included in the contract, the fact that the neglect of the fish, which was part of the contract, gives Malcolm the legal backing to seek remedies for damages on the same and further stop the intended cheque payment. This means that Georgia despite the inclusion of the exclusion clause in the contract and Malcolm’s failure to read through the contract carefully does not give Georgia any legal grounds from which she can have claims against Malcolm. References Baker, C. D. (2002). Torts law in principle. (3rd ed.). Sydney, NSW: Thompson Legal and Regulatory. Carvan, J. (2002). Understanding the Australian legal system. (4th ed.). Sydney, NSW: Law Book Company Graw, S. (2002). An introduction to the law of contract. (4th ed.). North Ryde, NSW: Law Book Company. Gibson, A. & Fraser, D, (2007). Business law (3rd ed.). Frenchs Forest, NSW: Prentice Hall. Vermeesch, R. B. & Lindgren, K. E. (2005). Business law of Australia. (11th ed.). 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