Lord Scarman, giving judgement on behalf of him and others, stated duress is coercion off the will so as to vitiate consent. He focused more on the coercion of the will than the illegitimate pressure, which makes one wonder whether illegitimacy of pressure is less relevant than the coercion of the will in a claim for duress. The lordships agreed that in a contractual situation commercial pressure is not enough, raising the question, what is enough pressure in economic duress for it to be considered illegitimate.
This shows the doctrine of duress has a lack of rational foundation because although illegitimate pressure is one of the main features in a claim of duress, it is implied it is less important than the coercion of the will in this case which shows there is no strong basic principles in the doctrine of duress which would help judges decide, instead it is left to the opinion of the judges.
It can be argued the purpose of the doctrine of duress is to provide some fairness for contracting parties. In the case of Atlas Express Ltd v Kafco importers and Distributors ltd  , Atlas threatened Kafco that if they do not sign the document, they would not deliver the goods. However later when Atlas sought to collect the money agreed on under the new contract, Kafco refused arguing the new agreement has been made under economic duress. This claim was held to be successful.
Tucker J stated Kafco signed the agreement under compulsion and unwillingly, and had no bargaining power. Therefore as Kafco had no bargaining power and was forced into the new agreement it would be fair to make the contract voidable. However the ship was given to another company and in order for the contract to not be terminated the owners offered another ship and to cover the cost of any losses incurred.
But later the ship owners said they would only provide the substitute ship if the charters agreed to waive all their rights to damages for the breach in contract.
The charters protested but then agreed. It was found the waiver agreement was voidable for economic duress. In this case the charters were clearly in an unfair situation, a claim in duress would have righted the wrong the owners created and in doing so made the outcome of the contract fairer for all parties. Looking back at the examples it is clear the doctrine of duress does provide a rational foundation, and that it creates a principle of fairness.
It can be argued it also provides justification for violating the basic principle of freedom of contract, which is to not allow parties in a contract to intimidate the other party to get their way.
Further more, forcing another party into the contract violates the basic principle of freedom of contract itself; therefore duress can be thought as simply enforcing the principle and attempting to put the losing party in a position they were prior to the contract if it is decided the contract is void because of duress, the contract has essentially not occurred due to there not being consent.
This was seen in the case of Halpern v Halpern  where the parties had been in a dispute over an inheritance, which was settled. The claimant sought damages for breach of this agreement but the defendant argued they entered under duress. This indicates there are difficulties in making the law completely fair; there may always be a party, which is in a disadvantaged situation in every duress claim that cannot be fixed by the courts.
It is clear from many previous cases in contract law that judges are reluctant to decide in favour of duress claims. An example of this stems from the case of R v Attorney General . The judges in order to define the limits of duress; decided the decision in the case was only of persuasive authority for future cases. This is done to encourage English courts to adopt the same approach, reluctance to define the doctrine of duress, in the future cases. Judges recognise duress does violate the principle of freedom of contract, however, they would argue it is not without justification when they do decide in favour of the duress claim.
In an attempt to control the claims made for duress, the judges added a time lapse for when a party, which entered into the contract under duress, can claim.
If the claim were not made in time, they would not decide in favour of the duress. An example of this is seen in the case North Ocean Shipping Co Ltd v Hyundai Construction Co Ltd, The Atlantic Baron  where a claim in duress was made against the waiver signed by the claimant which signed away their rights to make a claim in court for losses.
However, although it was found that it was economic duress and it did make the contract voidable, it was not made void because the claimant failed to take faster steps to avoid the contract and in doing so had affirmed the arrangement.
It is suggested this is an unfair decision, however it can be seen as justified because judges are attempting to protect the contract and by limiting the time period, it limits the chance of claimants only claiming because they later did not like the terms of the contract after they had already agreed to them.
To conclude, referring back to the issues relating to the doctrine of duress previously discussed in this essay, it is evident there are many criticisms and limitations of the doctrine.
However, there is a justification for having the doctrine and that is providing a degree of fairness for all contracting parties. The young person contracting in this situation will be held bound to pay a reasonable price although that may not be the contract price for necessaries actually sold and delivered. Generally, delivery takes place when the seller has given the buyer the power to take the goods away.
Where necessaries have been sold but there has been no delivery, the young person does not have to take delivery or pay for the goods. Where a young person has already paid money under a non-binding contract, that money will not be recoverable unless no benefit has been received by the young person.
The young person can, however, refuse to make any further payments under the contract. It is not certain who then own goods that are not necessaries. It appears that they become the property of the young person unless the young person has fraudulently misrepresented their age. Even after turning 18, a person cannot confirm a prior contract and then become bound by it. Any money paid by a young person under such circumstances may be recovered. Bankrupt people are not deprived of their general capacity to contract.
During their imprisonment, prisoners may enter contracts, including contracts to buy and sell prison still apply, so that the permission of Corrections Victoria is required before a prisoner may sign for, deliver or receive any document. Entering into a contract must involve the elements of free will and proper understanding of what each of the parties is doing.
In other words, the consent of each of the parties to a contract must be genuine. Only where the essential element of proper consent has been given is there a contract which is binding upon the parties. The ultimate consequences of establishing that no proper consent was given to enter the contract are matters dealt with when considering remedies for breach of contract.
Proper consent may be affected by any of the following matters: For example, where there is a contract for the sale of a car that both parties assume to exist, although in reality it has been destroyed by fire, this contract is non-binding on the parties.
By contrast, where the parties are only mistaken about the model of the car, then this contract would be binding. Another example is when a person signs a written document mistakenly believing that it relates to something entirely different from what in fact it does relate to, in this case the person will not be bound by it.
This means that if X is told to sign a document which X reasonably believes to be something like a character reference to assist Z to obtain a loan from a finance company, and the document is later discovered to have been a guarantee of the loan contract, then the guarantee will not be binding on X.
A third example is when Y cannot read, due to blindness or illiteracy or other disability. Someone else tells Y what is in the document and Y signs it. The document Y signed is not what Y was told it was. The document Y signed would not be binding on Y. By contrast, if a person who signs a document believing it to be a contract does not read the terms and conditions that person will be bound by the contract and will not be entitled to plead mistake.
Other factors may also be relevant to a successful plea of mistake. For instance, whether or not the defence of mistake will be allowed often depends on whether an innocent third party will be adversely affected by a decision that the contract is non-binding.
Again, if the signer was careless and failed to take reasonable precautions, the defence will not be allowed to succeed. For these reasons, it is wise to seek legal advice about whether or not a court would hold the contract binding on these grounds. Different consequences flow, depending on the seriousness of the false statement made. False statements might be made where either:. The parties come to agree and contract because one of them has been motivated to agree by a statement of fact something said or written that is not true.
Commonly, these types of statements have not actually been included in the contract itself but were an encouragement to enter into the contract. The parties have agreed and there is a contract, but the statements or terms in the contract exist only because one of the parties has made a false statement.
False statements affect the question of whether or not a contract exists. Very serious false statements mean a court would view the contract as void see: The consequence is that monetary damages sufficient to place the wronged party back to their original position must be paid. In other less serious instances, the court will find the contract valid but the wronged party will be entitled to reject the contract or to treat it as at an end.
Here, monetary damages sufficient to place the wronged party in the position they would have been in, had the contract been properly completed, must be paid. Where a false statement has put the wronged party at a disadvantage or caused some loss, but not enough damage has been done to justify ending the contract, then the contract will be valid and the wronged party will be bound to the contract, but entitled to sufficient monetary damages to make up for the loss suffered as a consequence of the false statement.
The two most important factors considered to determine the level of seriousness at which a false statement will be viewed are as follows. If a false statement amounts to a condition of the contract, the wronged party is entitled to rescind see: A court may view the condition so seriously that without it the contract is void; that is, with the false statement taken out of the contract, there is no contract.
Less important statements are called "warranties". Where the false statement amounts to a warranty, the wronged party will only be permitted to receive sufficient monetary damages to make up for any loss suffered; the contract will continue to exist and the parties will continue to be bound by it. There are three types of false statements: It is very difficult to prove fraud. Once proved, however, the innocent party can rescind the contract; sue for damages for deceit, or both.
An innocent misrepresentation could nevertheless be a serious false statement being a condition of the contract , or a breach of warranty. The level of seriousness will be determined by an appraisal of all the circumstances of the contract. If innocent and without negligence, the only available remedy is rescission. This special relationship will be held to exist where the person making the false statement claimed to have some special skill not generally possessed by an ordinary member of the community, and where that person was prepared to exercise this special skill on behalf of the person to whom the false statement was made.
The wronged party must be able to show that: Once again, the level of seriousness of a false statement made in these circumstances can vary. Where there is a serious breach, the innocent party can rescind the contract and recover damages for negligence. Duress is held to have occurred where there has been actual or threatened violence either to the other contracting party directly or to their immediate family, near relatives or close associates.
The duress may be made by someone acting under the instructions of the party to the contract. The net effect, though, will have been that a party has been forced into the contract by being deprived of their free will to act. Duress now extends to contracts entered into as a result of threats to a party's economic well being, that is, a threat to a person's business or trade. This form of duress is called economic duress. The consequence of establishing duress is often that the contract is voidable at the election of the wronged party.
Where the wronged party elects to have the contract declared void, monetary damages sufficient to place the wronged party in their original position must be paid. Where the wronged party elects to continue with the contract, monetary damages to cover any loss suffered because of the duress must be paid.
Undue influence is exercised by taking unfair and improper advantage of the weakness of the other party, to the extent that it cannot be said that that party intended voluntarily to enter into the contract. The main reason for the rule against the use of undue influence is to correct abuses of trust and confidence. It is applied where the parties are in a relationship where one party may be able to exercise considerable influence over the other party. The first is where no special relationship exists, but the stronger party will have used some fraud or wrongful act expressly to gain an advantage from the weaker party.
The weaker party will have to prove that undue influence was actually exerted. The second is where the parties are in a confidential relationship; most cases of undue influence fall into this category. A confidential relationship exists when one party's position towards the others involves a dependency or trust, in the form of authority or an expectation to give fair and independent advice to the weaker party. Where a confidential relationship is found to exist, a presumption of undue influence will arise.
It is then necessary for the stronger party to show that the contract was not the result of any undue influence. A confidential relationship and the presumption of undue influence can be established in either of two ways.
First, the parties may be in a well recognised special relationship, for example, solicitor and client, doctor and patient, religious or spiritual adviser and devotee. Second, the confidential relationship, although not falling within any well recognised relationship, is such that the complaining party is able to show that the other party was in a position of influence. For example, it could be the relationship between a bank and its customer, because of a special position of trust that the bank had come to occupy in connection with the conduct of this customer's affairs.
It has been stressed, however, that in ordinary circumstances no presumption of undue influence arises out of a banker-customer relationship. Contracts can be illegal or void at both statute and common law.
An agreement rendered void by statute is void and will not be enforced by the courts. Any money paid or property transferred under such an agreement may be irrecoverable.
A 'contract' deemed illegal when it is formed is totally void. Illegality may arise either because the contract is of a kind prohibited by statute, or because it is of a class regarded as contrary to public policy.
Neither party has any rights or remedies. Consequences of statutory illegality depend upon when the contract becomes illegal. If it is illegal as formed, the contract is void ab initio and property is only recoverable if disclosure of illegality is not essential to the cause of action. If the contract is illegal as performed, the contract is void, but not void ab initio. The guilty party has no rights, but the innocent party is little affected.
Contracts which would violate the social or moral attitudes of the community and are void ab initio include:. Contracts which would violate the social or moral attitudes of the community and are void ab initio include: Three types of contract are void at common law: Contracts which attempt to oust the jurisdiction of the courts.
Explain different types of contracts and explains their impact. Any special rules need to be considered. The law recognizes that legally binding contracts can be written, verbal, or a mixture of both. However, for business purposes, written contracts are usually preferred due to the following reasons: Here are various types of contracts in business law depending upon various legal transactions like transfer of property, sale of goods, etc.
A formal legal advice is always recommended prior to making or accepting a business contract. Let us take a look at the different types of contracts in the words of business law. Additionally, contracts can be a combination of written and verbal agreements if the written agreement lacks detail and only covers very few terms. Prior to signing, a written contract must: Also, once a contract is signed, it is assumed that all the terms have been read and agreed to. A definite written or oral proposal of the contract is accepted by an offeree in a way that plainly defines legal consent to the terms of the contract.
Other than a real implied contract consists of firm obligations that arise from a mutual agreement and goal of promise, which is not expressed orally. An implied contract cannot be labeled as implied in law because such a contract lacks the requirements of a true contract.
The term 'Quasi Contract', is however, a more specific recognition of contracts implied in law. Implied contracts depend on the reason behind their existence. Thus, for an implied contract to expand there must be some transaction, act or conduct of a party in order for them to be legally bound. A contract will not be implied if there are any chances of harm or inequity. If there is no clarity of message, implication and understanding between the two parties, the court will not conclude any contractual relationship between the two parties.
If the parties continue to follow their contractual terms, even after the contract has ceased to exist, an assumption arises that the two parties have mutually agreed to a new contract that has same provisions as the old contract and a new implied contract is formed.
This explanation could be incorrect to a certain point, since completion of occupation will mean that the contract has ended. But in case of executed contracts, there exists some act or transaction or an obligation that has to be performed at various point of time in the future according to the contractual conditions. It is also called a two-sided contract for the reason that of the two-way promises made by parties concerned in the contract. An independent contract is agree made by only one party.
The offeror promises to execute a definite act or an obligation if the offeree agrees on performing a requested act that is understood as a legally enforceable contract. It just requires an acceptance from the other party to get the contract executed. Thus, this is a one-sided contract since only the offeror is spring to the court of law. One important point of this category of contract is that, the offeree cannot be sued for abstaining, abandoning or even failing to execute his act, since he does not promise something.
In this type of contracts, both the parties may take for granted risks. For example, a fire insurance policy or a travel insurance is a type of Aleatory contract as the procedure holder will not accept any benefits of the contract unless in an event of fire occurrence or a plane crash in case of travel insurance.
The word unconscionable means an insult to impartiality and decorousness. No mentally healthy and honest person would ever accept an unconscionable contract and enter into it.
Unconscionability of the contract is gritty by analyzing the situations and circumstances of the parties involved in the contract, when the contract was made. This policy is applied only in cases, in which it would be unjust or an affront to the integrity of the law system to enforce a contract like that. The court of law has found that unconscionable contracts are a result of utilization of illiterate and bankrupt clients.
This means that the party who has a bargaining advantage leaves the other party with no other option than to either accept the contract or to reject it. Generally known as 'take-it or leave-it' contracts, they are often considered because for most of the businesses, it is difficult to negotiate and bargain all the terms and setting of every contract.
It is not necessary that all adhesion contracts are unconscionable contracts, since in some cases it is quite coincident for one party to have a superior bargaining advantage leaving no alternative for the other party. This often happens in monopolistic markets. However, courts of law refuse to implement such contracts of adhesion on the grounds that there was no mutual understanding or an acceptance between the two parties involved in an adhesive contract.
In fact, a void contract means a contract has ceased to exist and that there is no contract existing between the two parties. A voidable contract, on the other hand, is an agreement between any two or more parties that has a legal binding. A voidable contract can be treated as never been lawfully bound on a party that has been a casualty of fraudulent execution or if that party was distress from any legal disability. In addition, a contract is not void unless and awaiting any of the involved parties, choose to pleasure it as a void contract by confronting its execution.
The following are some ways in which verbal agreements can be supported: The conduct of the other party both before and after the agreement ' Specific actions of the other party ' Past dealings with the other party As desirable as a written contract is, in certain situations it may be counter-productive, such as: The presentation of a substantial document, possibly with many provisions, may raise more questions and uncertainty in the minds of the parties involved than it resolves, often ending in the transaction not proceeding.
Explain terms of contract their meaning effects. Earlier than toward the inside into a contract, a variety of statement will often be made by one party in order to support or induce the other party to enter into the contract. A divergence may later arise as to which of the statements made should be measured a part, or a term, of the agreement, and which should be taken as simply pre-contract talk, and consequently not a part or term of the contract.
Parties to a contract are bound only by its terms, not by any secondary report that may have been ended. The judges can look at verification of aim by one or other of the parties that the ruling should be part of the contract.
For form, the longer the rest is between the assembly of the statement and the success of the final contract and contract, the less likely it is that the declaration will be considered to be a term of the contract. The fact that the maker of the statement had a special information or skill compare with the other party will make the statement more likely to be a term.
Anywhere the agreement was subsequently reduced to writing and the report was not included, it is less likely to be an experience. Express term and implied terms. As a general rule, the parties to a contract may include in the agreement whatever terms they choose. This is the principle of freedom of contract. Terms clearly included in the contract are express terms.
The law may complement or replace terms by implying terms into a contract. In examining a contract, the courts will look first at the terms expressly agreed by the parties. An apparently binding legal agreement must be complete in its terms to be a valid contract.
Scammell v Ouston The facts: They placed an order 'on the understanding that the balance of purchase price can be had on hire - purchase terms over a period of two years'. The hire 'purchase terms were never specified. It is always possible for the parties to leave an essential term to be settled by other means, for example by an independent third party. If the parties use standards printed conditions, some of which are inappropriate, such phrases may be disregarded. Nicolene v Simmonds The facts: A contract was made by correspondence, in which the defendant provided that 'the usual conditions of acceptance apply'.
The defendant failed to deliver the goods and argued that there had been no explicit agreement. The contract was complete without these words; there were no usual conditions of acceptance.
There are occasions where certain terms are not expressly adopted by the parties. Additional terms of a contract may be implied by law; through custom, statute or the courts to bring efficacy to the contract. Implied terms may override express terms in certain circumstances such as where they are implied by statute.
An Implied term can be defined as follows. A term deemed to form part of a contract even though not expressly mentioned. Some such terms may be implied by the courts as necessary to give effect to the presumed intentions of the parties. Other terms may be implied by statute, for example, the sale of Good Act. Terms implied by custom The parties may enter into a contract subject to customs of their trade.
Any express term overrides a term which might be implied by custom. Hutton v Warren The facts: Ha insisted that the tenant should continue to farm the land during the period of notice. The tenant asked for 'a fair allowance 'for seeds and labour from which he received no benefit because he was to leave the farm.
Terms implied by the courts Terms may be implied if the court concludes that the parties intended those terms to apply to the contract. The Moorcock The facts: It was well know that at low water the ship would ground on the mud at the bottom. At ebb tide the ship settle on a ridge concealed beneath the mud and suffered damage. A term of a contract which is left to be implied and is not expressed is often something that goes without saying ; so that, if while the parties were making their bargain an officious bystander were to suggest some express provision for it, they would say 'why should we put that in?
The terms are required to give efficacy to the contract, that is, to make it work in practice. The court may also imply terms because the court believes such a term to be a 'necessary incident' of this type of contract.
There was no formal tenancy agreement. The defendants withheld rent; alleging that the claimants had breached implied terms because inter alia the lifts did not work and the stairs were unlit. Where a term is implied as a 'necessary incident' it has precedent value and such term a will be implied into future contracts of the same type. It is called an exclusion clause or an exemption clause. For example, an exclusion beginning liability for dent done to the lawn by a builder's backhoe might be included in a contract between the planner and a home owner who is having an extension built to their residence.
The courts have normally taken the view that exclusion clauses are unfair and have tried to limit their giving in. Courts will by and large take to mean the exclusion clause touching the meeting annoying to rely on it and, at the smallest amount, comprehend it by a whisker.
Everywhere a contract is a manuscript signed by the parties, they will generally be bounce by the exclusion clause in it. Anywhere a contract is an unsigned document e. Only anywhere a reasonable person would assume the document to be part of the contract between the parties will the exclusion clause in the document be able to be relied on. It must also be exposed that the exclusion clause was brought to the notice of the other party. Apply the elements of contract in the scenario of Alan and Cath.
An agreement must contain four essential elements to be regarded as a contract. If any one of them is missing, the agreement will not be legally binding. They are offer, Acceptance, intention of legal consequences and Consideration. The requirement of intention to create legal relations in contract law is aimed at sifting out cases which are not really appropriate for court action.
Not every agreement leads to a binding contract which can be enforced through the courts. Commercially based agreements will be seen as including a rebuttable intention to create a legally binding agreement.
However, the law presumes that domestic or social agreements are not intended to create legal relations. For example, an arrangement between siblings will not be presumed to be a legally binding contract. A person who wants to enforce a domestic or social agreement will need to prove that the parties did intend to create a legally binding agreement. Given task 2, there is a written agreement between husband and wife however depending on the circumstances even in domestic agreements sometimes the intention to create legal relations is presumed.
These facts are same as Merritt v Merritt case. While under the principles laid out in Balfour v Balfour, domestic agreements between spouses are rarely legally enforceable; this principle was rebutted where two spouses who formed an agreement over their matrimonial home were not on good terms. The Court of Appeal held that nature of the dealings, and the fact that the Merritts were separated when they signed their contract, allowed the court to assume that their agreement was more than a domestic arrangement.
Held that the decision in Balfour v Balfour will not apply to this case, because in Balfour v Balfour, the parties reached their agreement when they were living in amity, but in this task 2, they negotiated the terms when they decided to separate. Therefore a reasonable person would regard their agreement as intended to be binding in law. Therefore the husband wants to transfer the house to wife's name.
Evaluate the effect of different terms in given contracts. Contractual terms can either be conditions, warranties or in nominate terms.
Traditionally, contractual terms were classified as either conditions or warranties. The category of in nominate terms was created in Hong Kong Fir Shipping.
It is important for parties to correctly identify which terms are to be conditions and which are to be warranties. Where there has been a breach of contract, it is important to determine which type of term has been breached in order to establish the remedy available. A condition is a major term of the contract which goes to the root of the contract. If a condition is breached the innocent party is entitled to repudiate end the contract and claim damages in poussed V spiers 1 QBD case, Madame Poussard entered a contract to perform as an opera singer for three months.
She became ill five days before the opening night and was not able to perform the first four nights. Spiers then replaced her with another opera singer. The court held that the defendant's refusal was justified and that they were not liable in damages. What chiefly influenced the court was that poussard's illness was a serious one of uncertain duration and the defendants could not put off the opening night until she recovered.
The obligation to perform from the first night was a condition of the contract. Failure to carry out this term entitled the producers to repudiate poussard's contract. Warranties are minor terms of a contract which are not central to the existence of the contract.
If a warranty is breached the innocent party may claim damages but cannot end the contract: He became ill and missed 6 days of rehearsals.
The employer sacked him and replaced him with another opera singer. The court Held that, Bettini was in breach of warranty and therefore the employer was not entitled to end the contract. Missing the rehearsals did not go to the root of the contract. Evaluate the effect of different term in given contracts. It introduced the concept of in nominate terms, between "warranties" and "conditions". Diplock LJ emphasised that some terms could lead to either the right to terminate a contract as a remedy, or to the mere entitlement to damages or no right to terminate.
What mattered was not whether you call a particular contract term a "warranty" or a "condition" but how serious the breach of the term was. The meaning of the term "seaworthiness" has a very broad meaning ranging from trivial defects like a missing life preserver or a major flaw that would sink the ship. Accordingly, it is impossible to determine ahead of time what type of term it is. Thus, the type of breach must be determined by the judges.
In McFadden v Blue Star Lines  1 KB it was stated that, to be seaworthy, a vessel must have the degree of fitness that an ordinarily careful and prudent ship owner would require his vessel to have at the commencement of a voyage, having regard to all possible circumstances. And the Marine Insurance Act s 39 4 provides that "a ship is deemed to be seaworthy when she is reasonably fit in all respects to encounter the ordinary perils of the adventure insured.
In the Hong Kong case, the issue was not whether the unseaworthiness was "serious" or "minor"; rather the question was whether the undoubtedly serious unseaworthiness had had an effect sufficiently grave to allow the charterer to repudiate.
The Hong Kong Fir decision was met with some alarm in the shipping world, where certainty is crucial. The problem was the delay element; one had to "wait and see" the effect of the breach. The enormous costs involved in chartering mean that parties cannot afford to leisurely loiter, whilst pondering the consequences of the breach. Soon after, in The Mihailis Angelos  1 QB , it was held the impossibility of the ship owner to meet the "expected ready to load" date, ipso facto entitled the charterer to repudiate for anticipatory breach of condition.
The charterer was relieved to be able to cancel, as his proposed cargo of apatite had not materialized PS. Lord Denning used the word "warranty" in a very different way. Therefore the defendants are liable for wrongful repudiation. Here we can apply the in nominate term approach. Rather than seeking to classify the term itself as a condition or warranty, the court should look to the effect of the breach and ask if the breach has substantially deprived the innocent party of the whole benefit of the contract.
Only where this is answered affirmatively is it to be a breach of condition. Differentiate tort liability with contractual liability. Winfield defined tortuous liability as follows: A contractual obligation differs in nature from a delictual obligation in three aspects.
Firstly contractual obligations arise only from agreement between parties. However, delictual obligations are contractual obligations that are imposed by law on the party bound. Secondly, duties arising from contract are owed to the parties to the contract or their assignees , whereas delictual obligations are owed to a large and indeterminate class of persons.
Thirdly, a delictual obligation imposes negative duties, while a contractual obligation may impose positive or negative duties. According to Winfield one distinction between the law of tort and the law of contract is that the scope of the rights and duties of parties in the former is wider than in the latter. In case of torts and duties are imposed by law and are owed to persons in general while in the case of contracts the duty is created by prior consent and agreement by the parties and is owed by one party to the other.
However, such a general statement must necessarily be qualified in some respects. There are several instances where the prior consent of the defendant is a relevant factor in cases of tortuous liability. Under the English occupiers Liability Act of , a distinction is drawn between the duty owed by an occupier to a trespasser and that owed by him to a visitor whom he has permitted to enter his premises. Conversely, in the law of contracts the increased use of standard form contracts and 'implied terms' which the law deems the parties to have agreed to, has to a great extent eroded the true freedom of the parties to make independent decisions regarding the terms of such contracts.
Therefore, the parties may find themselves bound by terms imposed on them by the law rather than by prior agreement between them. However, we could argue on the other hand that no person is bound by a contract against his will, may find himself subject to terms imposed by the law rather than the agreed terms of the contract alone. We could also argue that in spite of the increased use of standard of the contract is still determined by agreement between the parties.
For example, the question whether A delivers to B or tons of fruit, depends on the terms of the contract agreed upon by them. On the other hand, in the case of the occupiers Liability Act, while the occupier of premises will owe a duty of care to visitors whom he permitted to enter his premises, the extent of that duty is determined by the act in question.
We can see a further distinction between the law of tort and contract when we examine the aims of these two branches of law. The primary aim of the law of tort is to grant redress or compensation to the victim of a tort for the harm caused to him. In other words the law seeks to put him as far as possible in the same position as if he had not suffered any damage or injury. The aim of the law of contract on the other hand is to enforce the promises made by one party to the other, and in the event that this is not possible, to grant damages to the latter, or in other words put him as far as possible in the same position as if the contract had been performed.
However, this distinction too has been somewhat blurred in recent times and it is now possible for a plaintiff to bring an action in both tort and contract on the same facts. In the law of contract the rule that a promise is not legally binding without either consideration or the formality of a seal has been relaxed in many instances and in the area of tort several cases have held that a negligent defendant is liable even though he has not caused damage to the plaintiff by any positive act [Rose v Caunters where a solicitor who negligently executed a will was held liable to a disappointed legatee].
Explain negligence in law of tort with other concepts associating with it. The concept of negligence or culpa is one of the foundations of the Aqulian acting on the Roman Dutch law. In the English law however, it is of much later origin. The early common law concentrated almost entirely on intentional harm and moreover was more concentrated with the nature of the injury caused then with the basis of the defendant's conduct.
It was during the 19th Century and the advent of the industrial revolution that the concept of negligence began to evolve as a basis of Tortious liability in the English law.
The development and expansion of industries and machinery and new modes of transport etc. The old stereotypes remedies available were insufficient to provide a solution to the problems which began to arise as a result of the social and economic upheaval which prevailed at the time, and the courts increasingly began to rely on the concept of negligence in confronting them.
Further the basis of negligence being 'fault liability' it proved to be more advantageous to the proponents of industrialization than the concept of 'strict liability' or liability without fault. However, the principle of negligence also resulted in expanding liability in other directions as for example, liability for nervous shock, negligent misstatements, omissions, etc. Negligence is not a tort in itself but a basis of liability in Tortious actions, it may be defined as' the failure to exercise towards another, in given circumstances that degree of care which the law considers that a reasonable man should exercise in these circumstances'.
In order to establish negligence as a Cause of Action under the law of TORTS, a plaintiff must prove that the defendant had a duty to the plaintiff, the defendant breached that duty by failing to the required standard of conduct, the defendant's negligent conduct was the cause of the harm to the plaintiff, and the plaintiff was, in fact, harmed or damaged. The concept of negligence developed under English Law. Although English Common Law had long imposed liability for the wrongful acts of others, negligence did not emerge as an independent cause of action until the eighteenth century.
Another important concept emerged at that time: Originally liability for failing to act was imposed on those who undertook to perform some service and breached a promise to exercise care or skill in performing that service.
Gradually the law began to imply a promise to exercise care or skill in the performance of certain services. This promise to exercise care, whether express or implied, formed the origins of the modern concept of "duty.
Although there have been important developments in negligence law, the basic concepts have remained the same since the eighteenth century. Today negligence is by far the widest-ranging tort, encompassing virtually all unintentional, wrongful conduct that injures others.
One of the most important concepts in negligence law is the "reasonable person," which provides the standard by which a person's conduct is judged. In order for a defendant to be liable, the plaintiff must establish both negligence and proximate cause.
Please note that the law speaks of the defendant's conduct as being "a proximate cause" of an accident, as opposed to "the proximate cause". Many accidents have more than one proximate cause. It is typically not necessary for liability that the defendant's negligence be either the only proximate cause of an injury, or the last proximate cause. A defendant may be liable even where an injury has multiple proximate causes, and whether those causes occur at the same time or in combination.
A plaintiff may be able to bring a cause of action against two or more defendants by proving that the acts of each were proximate causes of the plaintiff's injury, even where the defendants' negligent acts were distinct.
Imagine a situation where a plaintiff is driving down the road, and is suddenly cut off by a person who runs through a stop sign on a side street. The plaintiff slams on her brakes, and is able to avoid striking that car. However, the plaintiff is rear-ended by another driver who was not paying attention to the events in front of his car.
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