1) intention that it shall become binding as

1)    n
offer can be defined as “an expression of willingness to contract on certain
terms, made with the intention that it shall become binding as soon as it is
accepted by the person to whom it is addressed”1.  Contracts may either be bilateral or
unilateral. Bilateral contracts are more common and are mutually beneficial. Each
party to the contract makes a promise or exchange to one another and from that
time are bound to their duty. On the other hand, a unilateral offer can be a
formed by an express offer where one party makes a promise to perform a specific
act. An example being placing some adverts on shop windows or on lamp post
offering £150 to anyone who finds a missing iPhone and returns it back to the
owner. By offering a reward, this is also offering a unilateral offer. If
anyone should fulfil the offer of returning the phone then the reward of £150
must be given. The acceptance takes place by usually doing the act requested in
the offer. If the offeree has performed the act the offeror cannot reject it.
For example, in the case of Carlill v
Carbolic Smoke Ball2 it was buying the smoke
ball for influenza and using it three times daily for two weeks in order to
gain £100. When she tried to claim the £100 she was rejected on the grounds
that it was just for sales as you couldn’t make a contractual offer to the
whole world and they had not been notified by Ms Carlill therefore had no
reason to give her £100. However, the court ruled that Ms Carlil was owed the
money as not only did the ad show a clear promise but that advertisements need
no notification of acceptance and so it was deemed as a unilateral offer3. In Shuey v United States4 we see how unilateral
offers can be revoked. Even an offer made ‘to the world at large’ can be
revoked if given equal publicity as the offer itself. The defendant won in Shuey v United Stated5 because it was published
in the same manner. Another way in which a unilateral offer can be revoked is
showed in Errington v Errington6 where it was stated that a
unilateral offer cannot be revoked once the act has begun, as long as the
performance is not left ‘incomplete and unperformed’ thus implying the offeror
must give a reasonable chance for completion.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2)    The question concerning whether Dougal has
any authority to sue the Crivendoe Catering (CC) is one that carries little
doubt. Though some facts in the case such as offer and acceptance give no rise
to any difficulty, more arguable points, for instance, consideration carries
more room for interpretation. We must first establish if there is a binding contract.
“A
contract is an agreement giving rise to obligations which are enforced or
recognised by law. The law traditionally says there is an agreement when there
is both an ‘offer’ and an ‘acceptance”. An offer can be defined as “an
expression of willingness to contract on certain terms, made with the intention
that it shall become binding as soon as it is accepted by the person to whom it
is addressed.”7
This is apparent as CC approached Dougal expressly promising to pay him £60 per
week for the delivery of the food on time. In order for the other end of an agreement
to be met “a final and unqualified expression of assent to the terms of an
offer must be met”.  This becomes
effective when is it communicated and we are told that ‘Dougal agrees and is
true to his words’.  From the facts so
far presented it can be said that is it likely for an agreement to have been
formed as all the requirements have been met.

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While it can be recognised that an agreement has been
made. In order to establish a contract there must also be ‘consideration’ from
each party with an ‘intention to create legal relations’. The main contention possibly
limiting the basis of Douglas’ case is the element of consideration. As defined
in Currie v Missa8 this
“may consist either in some right,
interest, profit or benefit accruing to the one party, or some forbearance,
detriment, loss or responsibility given, suffered or undertaken by the other”.
Consideration can be broken down into three principles. The first principle being
that at the others express or implied request each party’s act or promise must
be given in return for or in exchange of the others promise. Here, CC expressly
promises to pay Dougal £60 per week in exchange that he delivers the meals on
time and so could be said that this limb is satisfied. The second principle
being that past consideration is not good consideration. The exchange between
Dougal and CC is considered as good consideration as the act of making the
meals by Dougal in return for the £60 CC had promised Dougal if delivered on
time was established. Thus, in reality, the consideration is not ‘past’. The
final principle being that consideration must be sufficient but need not be
adequate. The idea of adequacy is provided in Thomas v Thomas9, where the courts stated
that it ‘means somethings which is of some value in the eyes of the law’. By CC
and Dougal offering one another money or meals this could be said to be of
value and providing that it has some value, the courts will not investigate its
adequacy.  The crux of the matter is
whether or not the

contract is sufficient. The
principle set out in Stilk v Myrick10 tells us that if someone promises to perform a duty they are
already bound too under a contract, this would not be a valid consideration.
Furthermore, a promise to perform it could not be sufficient consideration for
any fresh promise. Here, it could be said that under the initial agreement, Dougal
had agreed to provide meals for CC for £50 a week making him bound to do so
under his pre-existing contractual duty. By getting a new contract in which he is
now being payed £60 a week it doesn’t change anything as he is not
significantly exceeding his existing contractual duty like they were in Hartley v Ponsonby11
but instead is doing the exact same job for more money. As the consideration
can be deemed as invalid then so does the contract as not all the requirements
have been satisfied. However, this is unlikely as Dougal can argue that CC had
obtained a practical benefit from this work thus validating the consideration
and the contract. Just like the case of William
v Roffey12
CC believed that Dougal may not be able to complete his contractual obligation
within the deadline. Concerned about their reputation being damaged in the
trade and not having their contract renewed CC promised to pay Dougal £60 per
week if he met the contractual deadline. Though Dougal had not exceeded his
existing contractual duty CC had obtained a practical benefit as a result of
Dougal promise to complete the work on time. These include benefits such as
upholding their reputation, renewal of their contract, a possible revenue
income if the meal price increased, not wasting time looking for other staff
and by only having Dougal it means no additional costs are required to cater
for a group of staff. As CCs promise had not be made as a result of fraud or
economic duress then these practical benefits are counted as sufficient
consideration to make the additional payment. As a result, this promise then
becomes enforceable as a contract and so Dougal can sue CC on the basis that
there has been a breach in their contract.

 

 

 

3)    Negligence is defined as ‘the breach of a legal
duty of care which causes damage or harm to the claimant. In the case of Lamb v
Camden13 Lord denning describe
these four elements as “continually running into one another”. In order to
critically discuss the statement about breach of duty it must first be defined.
A breach of duty can occur when a person has a duty of care towards another person,
but fails to live up to that standard.

In order for courts to determine whether there is a breach of duty they must
take into account four factors. One being the foreseeability of the outcome. In
Bolton v stone14 Mrs Stone who was stood
outside her house was hit by a ball during a game of cricket. However, it was
held that there was no breach of duty as a reasonable person would not have foreseen
such an extremely remote risk and as Lord Oaksey puts it “an ordinarily careful
man does not need to take precautions against every foreseeable risk”. The
second being the magnitude of the risk. Meaning that there is an expectation
between the degree of care taken in proportion to the risk created. In the case
Wagon Mound No.215 the defendant’s vessel
has leaked oil into the Sydney harbour due to failure in closing the value. This
led to fire destroying some boats and the wharf. The defendants were in breach
of duty as though the likelihood was low, the magnitude was high and it cost
nothing to prevent it. The third factor being the practicality of precaution. In
Latimer v AEC16
it was held that the defendant only had to take reasonable precaution to minimise
the risk which they had done and so they had not breached their duty. The final
factor is the utility of the defendant’s conduct. In Watt v Hertfordshire CC17 there was no breach of
duty as the emergency of the situation and the usefulness of the defendant
conduct in saving a life outweighed the need for precautions. These factors are
judged objectively.

Baron states that “it is an
objective standard taking no account of the defendant’s incompetence – he may
do the best he can and still be found negligent”. This statement can be
supported in the case of Nettleship v Weston18 whereby the learner
driver hit a lamp post injuring Mr Nettleship. It was held that a learner
driver was expected to meet the same standards as a reasonable qualified
competent driver. This may seem unfair as a learner is held to such high
standards, leaving little room for error. Another criticism being that what the
reasonable man may mean to one person could be completely different to another
and so to judge a situation by “merely an abstraction whose characteristics are
invented by a judge”19 may seem unjust. Having
said this, the standard of care can be altered for children as in the case of
Mullin v Richards20 where it was to “an
ordinary prudent 15-year-old” or those with mental infirmities as in the case
of Mansfield v Weetabix where he was suffering from a condition that impaired
his ability to drive or such as the case of a professional person in the case of
Bolan v Friern Hospital Management Committee (1957) 2 All ER 118 where the
standards were raised for professionals. Showing that the law does make reservations
for special categories of people.  

1)    n
offer can be defined as “an expression of willingness to contract on certain
terms, made with the intention that it shall become binding as soon as it is
accepted by the person to whom it is addressed”1.  Contracts may either be bilateral or
unilateral. Bilateral contracts are more common and are mutually beneficial. Each
party to the contract makes a promise or exchange to one another and from that
time are bound to their duty. On the other hand, a unilateral offer can be a
formed by an express offer where one party makes a promise to perform a specific
act. An example being placing some adverts on shop windows or on lamp post
offering £150 to anyone who finds a missing iPhone and returns it back to the
owner. By offering a reward, this is also offering a unilateral offer. If
anyone should fulfil the offer of returning the phone then the reward of £150
must be given. The acceptance takes place by usually doing the act requested in
the offer. If the offeree has performed the act the offeror cannot reject it.
For example, in the case of Carlill v
Carbolic Smoke Ball2 it was buying the smoke
ball for influenza and using it three times daily for two weeks in order to
gain £100. When she tried to claim the £100 she was rejected on the grounds
that it was just for sales as you couldn’t make a contractual offer to the
whole world and they had not been notified by Ms Carlill therefore had no
reason to give her £100. However, the court ruled that Ms Carlil was owed the
money as not only did the ad show a clear promise but that advertisements need
no notification of acceptance and so it was deemed as a unilateral offer3. In Shuey v United States4 we see how unilateral
offers can be revoked. Even an offer made ‘to the world at large’ can be
revoked if given equal publicity as the offer itself. The defendant won in Shuey v United Stated5 because it was published
in the same manner. Another way in which a unilateral offer can be revoked is
showed in Errington v Errington6 where it was stated that a
unilateral offer cannot be revoked once the act has begun, as long as the
performance is not left ‘incomplete and unperformed’ thus implying the offeror
must give a reasonable chance for completion.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2)    The question concerning whether Dougal has
any authority to sue the Crivendoe Catering (CC) is one that carries little
doubt. Though some facts in the case such as offer and acceptance give no rise
to any difficulty, more arguable points, for instance, consideration carries
more room for interpretation. We must first establish if there is a binding contract.
“A
contract is an agreement giving rise to obligations which are enforced or
recognised by law. The law traditionally says there is an agreement when there
is both an ‘offer’ and an ‘acceptance”. An offer can be defined as “an
expression of willingness to contract on certain terms, made with the intention
that it shall become binding as soon as it is accepted by the person to whom it
is addressed.”7
This is apparent as CC approached Dougal expressly promising to pay him £60 per
week for the delivery of the food on time. In order for the other end of an agreement
to be met “a final and unqualified expression of assent to the terms of an
offer must be met”.  This becomes
effective when is it communicated and we are told that ‘Dougal agrees and is
true to his words’.  From the facts so
far presented it can be said that is it likely for an agreement to have been
formed as all the requirements have been met.

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For You For Only $13.90/page!


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While it can be recognised that an agreement has been
made. In order to establish a contract there must also be ‘consideration’ from
each party with an ‘intention to create legal relations’. The main contention possibly
limiting the basis of Douglas’ case is the element of consideration. As defined
in Currie v Missa8 this
“may consist either in some right,
interest, profit or benefit accruing to the one party, or some forbearance,
detriment, loss or responsibility given, suffered or undertaken by the other”.
Consideration can be broken down into three principles. The first principle being
that at the others express or implied request each party’s act or promise must
be given in return for or in exchange of the others promise. Here, CC expressly
promises to pay Dougal £60 per week in exchange that he delivers the meals on
time and so could be said that this limb is satisfied. The second principle
being that past consideration is not good consideration. The exchange between
Dougal and CC is considered as good consideration as the act of making the
meals by Dougal in return for the £60 CC had promised Dougal if delivered on
time was established. Thus, in reality, the consideration is not ‘past’. The
final principle being that consideration must be sufficient but need not be
adequate. The idea of adequacy is provided in Thomas v Thomas9, where the courts stated
that it ‘means somethings which is of some value in the eyes of the law’. By CC
and Dougal offering one another money or meals this could be said to be of
value and providing that it has some value, the courts will not investigate its
adequacy.  The crux of the matter is
whether or not the

contract is sufficient. The
principle set out in Stilk v Myrick10 tells us that if someone promises to perform a duty they are
already bound too under a contract, this would not be a valid consideration.
Furthermore, a promise to perform it could not be sufficient consideration for
any fresh promise. Here, it could be said that under the initial agreement, Dougal
had agreed to provide meals for CC for £50 a week making him bound to do so
under his pre-existing contractual duty. By getting a new contract in which he is
now being payed £60 a week it doesn’t change anything as he is not
significantly exceeding his existing contractual duty like they were in Hartley v Ponsonby11
but instead is doing the exact same job for more money. As the consideration
can be deemed as invalid then so does the contract as not all the requirements
have been satisfied. However, this is unlikely as Dougal can argue that CC had
obtained a practical benefit from this work thus validating the consideration
and the contract. Just like the case of William
v Roffey12
CC believed that Dougal may not be able to complete his contractual obligation
within the deadline. Concerned about their reputation being damaged in the
trade and not having their contract renewed CC promised to pay Dougal £60 per
week if he met the contractual deadline. Though Dougal had not exceeded his
existing contractual duty CC had obtained a practical benefit as a result of
Dougal promise to complete the work on time. These include benefits such as
upholding their reputation, renewal of their contract, a possible revenue
income if the meal price increased, not wasting time looking for other staff
and by only having Dougal it means no additional costs are required to cater
for a group of staff. As CCs promise had not be made as a result of fraud or
economic duress then these practical benefits are counted as sufficient
consideration to make the additional payment. As a result, this promise then
becomes enforceable as a contract and so Dougal can sue CC on the basis that
there has been a breach in their contract.

 

 

 

3)    Negligence is defined as ‘the breach of a legal
duty of care which causes damage or harm to the claimant. In the case of Lamb v
Camden13 Lord denning describe
these four elements as “continually running into one another”. In order to
critically discuss the statement about breach of duty it must first be defined.
A breach of duty can occur when a person has a duty of care towards another person,
but fails to live up to that standard.

In order for courts to determine whether there is a breach of duty they must
take into account four factors. One being the foreseeability of the outcome. In
Bolton v stone14 Mrs Stone who was stood
outside her house was hit by a ball during a game of cricket. However, it was
held that there was no breach of duty as a reasonable person would not have foreseen
such an extremely remote risk and as Lord Oaksey puts it “an ordinarily careful
man does not need to take precautions against every foreseeable risk”. The
second being the magnitude of the risk. Meaning that there is an expectation
between the degree of care taken in proportion to the risk created. In the case
Wagon Mound No.215 the defendant’s vessel
has leaked oil into the Sydney harbour due to failure in closing the value. This
led to fire destroying some boats and the wharf. The defendants were in breach
of duty as though the likelihood was low, the magnitude was high and it cost
nothing to prevent it. The third factor being the practicality of precaution. In
Latimer v AEC16
it was held that the defendant only had to take reasonable precaution to minimise
the risk which they had done and so they had not breached their duty. The final
factor is the utility of the defendant’s conduct. In Watt v Hertfordshire CC17 there was no breach of
duty as the emergency of the situation and the usefulness of the defendant
conduct in saving a life outweighed the need for precautions. These factors are
judged objectively.

Baron states that “it is an
objective standard taking no account of the defendant’s incompetence – he may
do the best he can and still be found negligent”. This statement can be
supported in the case of Nettleship v Weston18 whereby the learner
driver hit a lamp post injuring Mr Nettleship. It was held that a learner
driver was expected to meet the same standards as a reasonable qualified
competent driver. This may seem unfair as a learner is held to such high
standards, leaving little room for error. Another criticism being that what the
reasonable man may mean to one person could be completely different to another
and so to judge a situation by “merely an abstraction whose characteristics are
invented by a judge”19 may seem unjust. Having
said this, the standard of care can be altered for children as in the case of
Mullin v Richards20 where it was to “an
ordinary prudent 15-year-old” or those with mental infirmities as in the case
of Mansfield v Weetabix where he was suffering from a condition that impaired
his ability to drive or such as the case of a professional person in the case of
Bolan v Friern Hospital Management Committee (1957) 2 All ER 118 where the
standards were raised for professionals. Showing that the law does make reservations
for special categories of people.  

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