Legal Issues for Business - Assignment Example

Legal Issues for Business Name: Tutor: Course: Date: QUESTION ONE TORT LAW In reference to common law, a tort is damages or harm inflicted on another party due to negligence, involving that a breach of a civil duty. This harm is not only refers to physical injuries but also constitutional rights, violation of property, economic and emotional harm. This civil duty doesn’t necessarily have to do with contractual responsibility. The defendant is referred as tort feasor. The plaintiff is entitled to receive monetary compensation, from the tort feasor, once it is fully proven that there was a breach of duty. This breach of duty is mainly reflected in negligence. The main relevance of Tort law is there is compensation when one party suffers damages of civil wrongs caused by another party’s acts or omissions. Unlike criminal law where the Contest is between the government and the defendant, in torts law plaintiff sues the tort feasor for compensation. The plaintiff in torts laws stands as his/her own witness and not of the government as in criminal law. The only similarity between a criminal and tort law is that tin tort law there is an imposition of punitive damage. Whereas in criminal law, under the criminal injuries compensation statutes, a victim of crime is awarded some limited compensation in this case the sole type of tort law is negligence in reference to Mac tools Ltd as defendant against nick and Tess as plaintiffs. (Institute, 2008) The element negligence There are two modular of reference that the law of torts deals with negligence. In the 'ordinary’ reference modular, negligence refers to a careless action of the defendant as opposed to a willful conduct. The term negligence in reference to the technical modular it refers to mean the breach of a duty by the defendant comprising of his or her failure to take reasonable measures to prevent a reasonably foreseeable damage to another party. The biggest section of the law of torts is reliant on this idea of negligence in the two reference modules. Therefore, Mac tools limited did not act in their capacity to prevent the damage incurred by the plaintiff. Mac Tools Company was in opposition to recall their malfunctioning drills but choose not to do so. Their neglect, therefore, led to the resultant damage of the plaintiff. However, negligence suits have historically been analyzed in modules, called elements; this is similar to the criminal law. In these modules, the plaintiff must fully prove each element in the tort. Failure to prove a single element the plaintiff looses the entire tort claim. If the tort, which the plaintiffs will use to sue Mac tools Ltd has five elements then, element needs relevant prove. If the plaintiffs will be in a position to prove only a single part of the elements, which is below five elements then they are bound to lose the case. Common law sometimes may not conclude the exact classification of the elements of negligence, but the most basic and necessary elements that are used in every negligence case are; duty of care, breach of standard care and causation of harm. (Mitchell, 2008 Duty of care The plaintiffs must prove that Mac tools Ltd owed them the duty of care. The defendant must be portrayed as having failed to realize the substantial risk of harm and loss to the plaintiff/claimant, which any person in the same case situation would have realized and taken the necessary action to avoid such a situation. Mac tools engaged in activities that posed an unreasonable risk toward the plaintiffs and their property that resulted in harm. An example is shown in the case of Bolton vs. bolt decided by the House of Lords. The house ruled that the defendant was not negligent as there was no foreseeable outcome to cause damage on the plaintiff. (Finzs, 2004) The plaintiffs use only a legal means to power their evidence that they suffered the claimed loss. Therefore, more than just pecuniary loss is a must to validate the elements of a plaintiff's case. This would see the plaintiff entitled to minimal compensation from Mac tools Ltd Otherwise; the plaintiff must prove the loss they incurred or the damage magnitude. The defendant may not necessarily dispute the claimed loss, but the requirement is significant in this case which Mac tools Ltd cannot deny their negligence. If the plaintiff, Nick, can raise the required amount of evidence for prove of pecuniary loss, and then nick will also be granted compensation for non-pecuniary harm, such as the emotional stress of not flying again for fun. Nick who was physically injured as a result of negligent conduct of Mac tools Ltd has to prove that he was hospital for a month and that he had to pay a medical bill. If any property belonging to him was damaged, Nick can possibly prove this, and by showing the income lost because he could not work while in hospital. Economic loss of earnings due to the injuries of nick and loss of business deal for Tess is limited to a number of 'special' and properly outlined circumstances, based on the relationship dynamic of the duty to the plaintiff. This dynamic is reliant on the puling and pushing forces of clients, their lawyers and other advisers, based on the amount of money each gets. Factual causation (Direct Cause) For a Mac Tools Ltd to be held fully responsible, full evidence must disclose that his omissions and acts were the sole cause of all harms incurred. Both Tess and nick must prove that the harms caused on them were resultant of Mac tools ltd. This really sounds very simple matter but, Mac tools breach of duty and the resulting harm on the plaintiffs are a bit complicated. The only litmus test is to enquire whether the defendant breach of duty really necessitated the injuries. Causes of action Before the plaintiffs can sue the defendant in tort law, they have to fit the evidence of the case into the structure of a recognized cause of action. The two main forms of actions in torts are actions in trespass and actions in negligence. Interests protected in tort law The law of torts protects certain interests such as personal security through the cause of action forms. Defamation tort is subject to damage of a person's reputation. Trespass tort entails interference of one’s enjoyment to their property. While nuisance is the interference of a neighbor’s property. The Mac Tools Ltd v Nick If the plaintiff, Nick and Tess, they can prove that the defendant, Mac Tools Ltd acted negligently – in reference to, without taking considerable measure to avoid injuring others – the tort law will allow compensation Mac Tools Ltd v Tess Compensation Compensation in this case between Mac Tools Ltd and the plaintiffs must reflect the actual loss and damage incurred by nick as a result of Mac tools negligence. If the plaintiff did not suffer any loss or damage from the action of the tort feasor, the court may grant nick only nominal damage in recognition of Mac tools neglect. The most likely outcome is that Mac tool Ltd will win in favor of compensating nick a nominal damage. This is due to the idea that, if nick had read the manual, there would have any damage to his eyes and his hobby. The only hard case is resolving the level of negligence that Mac tools took by not recalling their malfunctioning drills. Liability in tort law In tort law, Mac tools Ltd will be required to compensate the plaintiffs if only Mac tools was responsible for the cause of the damage being sued by the plaintiffs. Liability in tort law is reliant on the base whether fault or it may be strict. Basically, fault liability is not being in a position to actually live to the standard of the stated act or mission. There are two types of fault liability: liability may be due to an intentional act in this case Mac tools Ltd was fully aware of the malfunction of the drills. However, Mac tools limited did not recall the drills intentionally to avoid huge loss of recalling). The second type of fault liability is negligent act. In this case, Mac tools negligence caused harm to plaintiffs due to their negligence of recalling the drills. Therefore, there is no liability without a fault. Thus, even in the case defendant causes an injury to the plaintiffs, the plaintiffs are not liable for a tort unless fault can be proven. (Arthur, 2007) Negligent of advice Nick negligently failed to check the instructions on the manual, therefore, exposing himself to the resultant harm of loss of an eye. This lowers the amount of compensation that Mac tools Ltd will issue to Nick. Breach of standard of care Reasonable care should be taken to prevent the harm of the person in the plaintiff. This is not based on the relationship between the plaintiff and the defendant, but on their legal positions. Reasonable here, means whether the defendant acted within his capacity to prevent the harm since Mac Tools Ltd was in capacity to recall the malfunctioning drills they didn’t act reasonably by neglecting this. The only favor in ruling of the defendant is whether the court rules that the cost of preventing the harm was way much greater than the cost of resultant harm. Causation of harm The plaintiff must prove that harm suffered was due to defendants’ omission. The test to determine this is called the “but for test-in the absence of’. This means if the plaintiffs are able to state that the damage would not happen in the absence of the malfunction of the drills from Mac tools ltd. The malfunction of the drills becomes the cause of all damages. QUESTION TWO Introduction to contract law The main agenda of the law of the contract is the framework to foresee the mandate to conclude and the consequences of contracts. It outlines the basic requirements of contracting liability. This enables regulation of breach towards a contract. Each party duty is outlined together with the rights. It is the organ that provides remedies to be taken in case there is breach of contracting. The rules laid out in the law of the contract are a branch of the law of obligations which deals with giving equal protection to each party. For a contract to be fully acceptable to the parties it must contain three essentials. This includes agreement, intentions of being legally bound, and consideration. Offer The communication between the parties holding the contract is very vital. The actual communication may contain either spoken word or writing. The case of peter, the defendant versus Wendy, the plaintiff negotiation, was through a word of mouth. The final agreement communication was made through writing as peter wrote an offer and Wendy wrote her acceptance. Peter found it best to terminate the contract because Wendy had not forwarded her acceptance letter within the stipulated time Consideration This is the value of commodity that the parties agrees to exchange in the contract Offer and consideration The process of a contract between peter and Wendy consisted an offer from peter. Therefore, there was concurrence of wills of both parties and an acceptance from Wendy. in this case offer and acceptance was made both orally and in writing. Consideration is the most important part of the .Consideration is the guide by the principals that of exchange relationship. This may consist of legal determent and bargain. The case of peter and Wendy is based on a bargain. The main aim of consideration in a bargain is the promise made by both parties is reciprocally induced. This never happened in this case as Wendy was not in a position to deliver what she had promised peter. (Page, 1919). Sufficiency Although the courts are not in a position to weigh the adequacy of consideration, all consideration is bound to be of sufficient nature. The amount of money peter was offering to Wendy was sufficient in accordance to both parties, but Wendy’s was not complete as agreed. Formalities and writing Oral and written contracts are legally binding contracts. The common law has no requirement that all contract transactions must be in writing. Procedure of the case For Wendy to obtain compensation from peter, she must file a case. She has to provide arbitration form if the contract was sealed with an arbitration clause. The idea of estoppels Of late the common law system does not recognize consideration in a big magnitude as a requirement. The notion of estoppels is derived to make major obligations during pre-contractual negotiations. This is not the case in civil law jurisdictions. Consideration is not necessary part of a binding contract. Estoppels are found in the common law to enable a party conduct his acts in a way that symbolizes he has agreed and prevented from denying that he has agreed. Mistakes Mistakes occur when parties enter into a contract without proper communication. One party may be talking of a certain thing while the other understands otherwise. In the case of peter, the contract with Wendy can be regarded as null and void due to the fact that Wendy was not delivering what peter had asked. This mistake may be due to the result that when peters refer that the lorry must have heavy-duty suspension, Wendy might have understood something else. This kind of mistake is known as mutual mistake, and it’s bound to make a contract void. Otherwise, there could be a unilateral mistake if, the plaintiff knew that the defendant was mistaken and did not correct him. The plaintiff should have taken measure to inform the defendant of the mistake before accepting the contract. Misrepresentation This is the false representation of information regarding oneself and the ability to provide the promised items in the contract. The plaintiff knowingly misrepresented herself by saying that her items were of the quality that the defendant required. She gave false statement and this only point that persuaded the defendant to enter into the contract with her. The type of misrepresentation that the plaintiff used is referred ass fraudulent misrepresentation. This is due to the fact that the mistake was made knowingly with the sole intentions of deceiving the defense. References Institute, A. l. (2008). restatement of the law. american law institute publishers. Mitchell, A. (2008). A S Law. Great Britain: Taylor & Francis.   Page, W. H. (1919). The Law Of Contracts-Volume 1. The W.H Anderson Company. Finzs, S. R. (2004). The Finzs Multistate-strategies&tactic series. United States: Aspen publishers. Arthur B. (2007). Basic Torts Law:cases,statutes,and problems. United States: Aspen Publishers. Read More