In Director at BIMsoft and asked him to

In thescenario at hand, Will and Sarah have to be advised.

Will needs to be advised abouthis potential legal position, i.e whether or not he concluded a contract withBIMsoft and/or AutoBIM, whereas Sarah needs advice about her potential legalclaims.Will faces twomain areas of liability that would be analysed, Will’s liability to BIMsoft andto AutoBIM. On the other hand, BIMsoft’s liability to Sarah needs to beaddressed separately.

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The analysisrequires addressing relevant principles of contract law, mainly offer andacceptance, revocation of an offer, and relevant principles of tort law.In the beginning, Will, theproject manager of NewDay Construction Limited hereafter (ND) approached Sean,the Sales Director at BIMsoft and asked him to quote a price for theinstallation of BIMsoft’s ‘state-of-the-art’ BIM Generation and Managementsoftware .So, Will made an ‘invitatio ad offerendum’, viz., an invitation totreat rather than an offer. Professor Andrew Burrows defined an invitation totreat as i”.

..anexpression of willingness to negotiate. A person making an invitation to treatdoes not intend to be bound as soon as it is accepted by the person to whom thestatement is addressed.” At this stage, Will’s request cannot form a contract;iiitwas merely an invitation for BIMsoft to make an offer.Sean replied to theinvitation to treat by making an offer, he offered a lump sum price of 10,500for the installation, including appropriate staff training. The question to beaddressed is whether the offer made by Sean legally binds ND and whether theparties entered into a contract.

As indicated above Will’s request to quote aprice was not an offer. Willes, J. held that the absence of any specificwording such as “and we undertake to sell to the highest bidder”rebutted any presumption that the Defendants had intended to be bound by acontract.iiiThus,in this stage, the offer was not conclusive as such; ND acceptance is needed. Unquestionably, as a generalproposition, when an offer is made, it is necessary in order to make a bindingcontract, not only that it should be accepted, but that the acceptance shouldbe notified.iv Inthis earlier stage there is no acceptance, let alone a communication. Meresilence does not amount to acceptance. vTherefore,no contract was concluded.

Subsequently, on the sameday, Will received an advert by email from AutoBIM Ltd offering their cuttingedge BIM software at a price guaranteed not to exceed _9,000. Will immediatelyplaced an order by telephone. Having a discussion afterwards with one of thetechnical staff of AutoBIM, the cost of installation turned out to be higherthan it was advertised. At which point, Will withdrew his order. The issue isto establish whether a contract is concluded between ND and AutoBIM.

The communication of theadvert by e-mail does not constitute an issue as a contract can be agreed to inthe form of e-mail., but this won’t be elaborated upon. However, it is arguableto consider whether the advert received amounts to an offer.Lord Parker CJ said:vi”I think when one is dealing with advertisements and circulars, unless theyindeed come from manufacturers, there is business sense in their beingconstrued as invitations to treat and not offers for sale.”.

Furthermore, the generalrule is that it must be reasonable under the circumstances for the recipient tobelieve that the communication is an offer. The communication should bedefinite, i.e. spells out,as a minimum, who are the parties, what is thesubject matter as quantity and quality, what is the price and what is thetimeframe. In the current communication, the price is not clear as it onlyspecifies the upper threshold. The quantity and quality lack precisedefinition. The recipient (Will) cannot understand the breakdown of the priceand whether the said price includes installation, staff training, maintenance andon how many computers can be installed.

The communication is less than an offerand tantamount to a mere invitation to treat. On top of that, the advert statesthat AutoBIM ‘can offer’ software. This expression cannot be regarded as anoffer to sell, capable of acceptance, so as to constitute a contract.

viiIf Will had not placed an order (or had thought before placing the order), thematter would have been straight forward; no legal binding is established. However,the placement of the order by Will through a telephone communication is likelyto be considered as a communicated acceptance.viiiTo amount to an effective acceptance, the acceptance is needed to becommunicated to the offeree.ixIn the case in study, the ‘postal rule’xdoesnot apply as the communication of acceptance, in this case, is considered asinstantaneous communication.

xiSeemingly, ED is bound to AutoBIM and the contract is concluded.Notwithstanding the apparently legal binding, Will, after having contact withAutoBIM technical staff, withdrew his order. Three scenarios could happen.Firstly, the court could take AutoBIM´s communication as an offer (unlikely tohappen), and as in the case of instantaneous acceptance, retracting is not possiblethen, and ED would  be liable to AutoBIM.The latter is entitled to be compensated for the foreseeable losses that theyare not too remote, pursuant the remoteness of damage rule.xiiSecondly,the court would take AutoBIM´s communication as an offer (unlikely to happen).The acceptance was communicated for a price not exceeding 9,000.

Later theprice becomes more than 12,000; higher than the initial offer which ED actedupon.. Therefore, the acceptance does not match the offer anymore; consequentlythere is not contract at all.xiiiThirdly, likely the court could consider that the communication made by AutoBIMdoes not tantamount to an offer; it is an invitation to treat (as discussedabove). Thus the offeror shifts from AutoBIM to ED and the former becomes theofferee. Will withdrew the offer before it was accepted. To be effective therevocation has to be received by the offeree.

xivThat what Will did.The day after, Will communicated toBIMSoft his acceptance of the offer made by Sean. In his offer, Sean placed atime limit; he stated that the price could be held only for a week. An offerorcan place a time limit on his offer and prevent the offeree from acceptingafter that time, the offer lapses after that time.xv Will’s purported communication conformedto the timeframe of the offer as it was made the day after.

BIMSoft did notprescribe any mode of communicationxvi this gave the opportunity to Will tocommunicate his acceptance in any form. Will telephoned BIMSoft and left amessage on the answering machine. In cases of instantaneous communication, thecontract is only complete when the acceptance is received by the offeror;receipt rule.xviiTherefore, it is of paramount importance to verify whether the communication reachedthe offeror (Sean). . Denning LJ in Entores case clarified the issue of theacceptance, he said “…that if the line went dead when the purported acceptancewas sent there would be no contract because the sender would know that thecommunication would be not successful…”.xviiiHowever, in the case of Will the line did no go dead and likely the offerorreceived the acceptance.At the same time, Willasked whether the cost comprised training for further staff to be contractedwithin six months from the date the contract came into force.

The issue iswhether Will’s question amounts to counter-offer or whether it is tantamount toa simple request for further information. As a general rule, an acceptance hasto be a mirror image of the offer to reflect the ‘consensus ad idem’ of the parties.A counter-offer or as it is sometimes called a qualified acceptance destroysthe original offer and replaces it. In the case of Hyde v Wrenchxix,Lord Langdale ruled that any counter-offer cancels the original offer, therefore,there exists no obligation of any sort between the parties. An inquiry forinformation, by contrast, does not intend to reject an offer ready foracceptance.

In Stevenson, Jaques & Co. v McLeanxx,it was held that the complainant was only inquiring for more information aboutwhether the terms of the offer could be changed; there was no specific wordingto indicate that it was a counter offer or rejection. This was in contrast toHyde v Wrench. This meant that the offer made by the defendant was still validand the second telegram by the complainant formed a binding contract. On onehand, Will’s request could be understood as an inquiry for clarification, asthe offer covers appropriate staff training but without further details. Inthis case the inquiry does not imply a counter-offer, thus the offer is stillopen for acceptance.

On the other hand, Will’s inquiry could be considered acounter-offer as it changed the quantity of the offer. In fact, Will sought toinclude on-site training for new staff. In this case, the inquiry killed offthe offer immediately. Consequently, there was no contract. “The severity ofthis approach depends on how the courts distinguish counter-offers and inquiries…Drawing the line between an inquiry which implies a counter-offer and one whichdoes not is a difficult job.”xxiLikely courts would consider that Will’s request had not amounted to acounter-offer.  Will was uncertain abouthis action; he communicated his decision to cancel his order, in other words hewanted to withdraw his acceptance.

As general rule, an acceptance delivered byinstantaneous communication is binding when it is received. As mentionedearlier, BIMSoflt likely received the communication, therefore it is binding.Therefore Will cannot revoke his acceptation.

However, “Even with instantaneouscommunications, the courts have flexibly interpreted the meaning of ‘received’in order to reached their preferred conclusion.”xxiiBIMSoft’s secretary on duty confirmed that recordings on the answering machineswere passed to Sean to listen to them. In addition she took note of Will’swithdrawal wish.

This confirms that likely the withdrawal will be communicated   after the actual reception of theacceptance. Moreover, the acceptance was already received by the technicalstaff as the system trigger automatic messages when an order is placed. Seemingly,the contract was concluded and the revocation will constitute a breach of thecontract. Likely there is no room to the courts, in this case, to interpret themeaning of ‘received’ to reach a different conclusion.Irrespective of whether EDconcluded a contract with BIMSoft or not, the latter has an artificialintelligence system which detects placed orders and notifies engineers so theycan act upon them. The first operation is to check the appropriateness of thepremises for the installation of the product ordered. The injured student onholiday may sue Vishnu or, more likely, his employer (BIMSoft), in tort fornegligence.

xxiiiFor a claim to succeed in negligence in common law, Sarah must show that Vishnuowed her a duty of care, that Vishnu broke that duty, that the breach of duty causedher harm and the harm is not too remote. The first issue to determine iswhether or not Vishnu owed Sarah a duty of care. The test which Lord Atkinemployed for the existence of duty of care is known as the ‘neighbour principle’.xxivDuty of care can be broken down into two questionsxxv:First, is this a case to which the law of negligence is applicable?xxviThe second is was it foreseeable that this claimant would be harmed by thedefendant’s act?xxviiThe test of duty of care which is currently regarded as definitive was statedin the case of Caparo Industries plc v Dickman.

xxviiiLord Bridge introduced a third element, ‘fair, just and reasonable’, the testbecame known as the Caparo ‘three-stage test’. There is no need to foresee theprecise nature of the injury, only the general loss should be foreseeable.xxix Moreover, Sarah was directly affected by the Vishnu’s negligentact; there is obvious closeness in time and space, and no need of relationshipproximity.

xxx Theissue now is whether it is fair, just and reasonable to impose a duty. Inapplying the third stage of the Caparo test, of fair, just and reasonable, thecourts take certain policy factors into account such as loss allocation,floodgates and the practical effect of imposing liability. In Sarah’s case, thecourt would likely impose liability on Vishnu and/or his employer as it is just,fair and reasonable.

The burden is on Sarah toprove that a reasonable man of ordinary intelligence and experience, in theposition of Vishnu would have foreseen that injury to a passer-by could haveresulted from his action. It is not always easy to reasonably foresee injuryxxxi.In Sarah’s case a reasonable man would have said that leaving a toolbox closeto the entrance of a pedestrian walkway was likely to cause an accident to a pedestrianand would not have left an object close to the entrance. The toolbox shouldhave been left in the engineer’s car and then carried straight to the worksite. It is a general rule that pedestrian paths must be clear of any obstacle.

Consequently, there is little doubt that Vishnu fell below the standard of carerequired.xxxiiTherefore, it is clear that Vishnu breached his duty.Sarahmust also prove on the balance of probabilities that the breach of duty causedher harm. Applying the ‘but for’ testxxxiii Sarah should be ableto establish the causal link between the breach and her loss as a matter offact.

Otherwise, her claim would fail.xxxiv Causation isestablished by satisfying the ‘but for’ test that is, would Sarah have sufferedthe losses but for Vishnu’s breach of duty. The answer is obviously “No”, asSarah tripped over the toolbox and ‘but for’ Vishnu’s breach the accident wouldnot have occurred. Sarah injured her right ankle, shoulders and neck. Furtherinjuries were suffered by Sarah whilst transported to the hospital. The issuenow is how much of Sarah’s loss should be attributable to Vishnu and whetherthe harm is the foreseeable consequence of the breach of duty.xxxv It was foreseeable to usean ambulance to transport an injured person to the hospital, it was alsoforeseeable that a complication or an accident could happen while the injuredwas being transported.

It could be argued that the way the further injuries occurredwas unexpectedxxxvibut in any case they were foreseeable. It is unlikely that courts wouldconsider that the intervening act broke the chain of causation. The transportwas not unreasonable or extraneous or extrinsic.xxxvii It was demonstratedthat Vishnu was liable to Sarah. However, Vishnu was a BIMSoft’s employee; heis one of the engineers of BIMSoft and therefore, an employer/employeerelationship does exist. Thus, likely BIMSoft is vicariously liable for Vishnu’snegligence.

Vishnu’s negligence was committed whilst he was in the course ofhis employment. To determine this with certainty, courts use two tests, namely the’Salmond’ testxxxviiiand the ‘close connection’ test established in Lister v Hesley Hall Ltd.xxxix Even though the closeconnection test in Lister was initially adopted in Scotland, in the case ofWilson v Excel UK Limited,xl the Kirby principles wereused.

Thus, Vishnu and his employer are likely to be held liable; therefore,Sarah should not bring any action against anyone other than Vishnu’s employerxli as the chain ofcausation does not seem to be broken.BIMSoftcould argue that Sarah voluntarily assumed the risk, ‘volonti non fit injura’.xlii If their argument wassuccessful, it would be a complete defence; so if it was established, it wouldrelieve BIMSoft from all liability. BIMSoft could sustain that Sarah should havetaken reasonable care for her own safety. If she had been keeping a proper lookout, she could have observed and avoided tripping over the toolbox. She was notwatching where she was going. BIMSoft could argue that there was contributorynegligencexliii(partial defence), so that damages may be reduced under the ContributoryNegligence Act 1945.

BIMSoft could hold that Sarah was not taking appropriateaction for her own safety; the toolbox must have been clearly visible to her.  A court would likely find that Sarah acted asa reasonable  prudent man,xliv so, the court wouldlikely not uphold the arguments of the defence as BIMSoft created a foreseeablerisk of injury to pedestrians in leaving a toolbox close to the entrance of apedestrian walkway and did nothing to draw the attention of passers-by to itspresence. Sarahis likely to be successful in claiming damages for her injury, should then beput in the position she would have been in before the injury occurred,xlv there should berestitution to integrum. Sarahshould seek damages for the significant injuries she sustained as well as damagesfor pain and suffering.

Considering the pecuniary damages, Sarah could recoverfor expenses reasonably incurred (medical expenses), the loss of earnings fromher football team (as a professional player) and the interests for the periodbetween the accident and the time receiving the compensation. As indicated bythe diagnostic made by the medical team, Sarah will be unavailable only for afew months. For that reason the calculation of the award would bestraightforward. Regarding the non-pecuniary damages, they would represent,firstly, the effect of the injuries themselves, they are determined using atariff system displayed in a table showing ‘Judicial Studies Board’  guidelinesxlvi, secondly the pain and sufferingand finally the impact of missing the second semester school work at theuniversity.iBurrows, A. (2009).A Casebook on Contract (2nd ed., pp.

5). iiHarveyv Facey 1893 AC 552iiiSpencer v Harding (1870)LR 5 CP 561ivCarlill v CarbolicSmoke Ball Company 1892 EWCA Civ 1v Felthouse v Bindley(1862)viPartridge vCrittenden 1968 1 WLR 1204viiGibson v ManchesterCity Council 1979 UHKL viiiBear Stearns BankPlc v Forum Global Equity Ltd 2007 EWHC 1576ixEntores v Miles Far East 1955 2 QB 327 Court of AppealxAdams v Lindsell(1818) 1B 681xiTaylor xiiHadley v Baxendale (1854) 156 ER145xiiiMathieson  Gee (Ayrshire) Ltd. VQuigley 1952SC (HL) 38xivByrne v Tienhoven(1880) 5 CPD 344.

xv Dickinson v Dodds(1876) LR 2 Ch D 463xvi Holwell Securitiesv Hughes 1974 1 WLR 155xvii Brinkibon Ltd. v Stahag Stahl und Stahlwarenhandelsgesellschaft mbH 1983 2AC 34xviii Taylor, R, Taylor, D, Contract Law Directions 5th edn(OUP 2015)xix 1840 EWCHJ90xx (1880) 5 QBD346xxi Ibid Taylorxxii Ibid Taylorxxiii Winfield’s said’Negligence as a tort is a breach of a legal duty to take care which results indamage to the claimant.’xxiv Donoghue vStevenson 1932  AC 562xxv VeraBermingham ….xxvi General anddetermined as a matter of law and policyxxvii Specific andfact-based question.

xxviii 1990  1 All E R 568 xxix Hughes v Lord Advocate 1963 SC (HL) 31xxx Bourhill v Young (1943)xxxi Smith vLittlewoods 1987 SCLR 489  xxxii Blyth v Birmingham Waterworks Co (1856) 11 Ex 781.xxxiii Barnett v Chelsea & Kensington Hospital 1969 1QB 428xxxiv Pickford v ICI (1998)xxxv Wagon Mound nº1 (1961)xxxvi xxxvii The Oropesa 1943 1 All ER 214 p 32xxxviii J salmond, Law of torts (Sweet andMaxwell,London,1907) 83.      xxxix 2002 1 AC 215. xl 2010 CSIH 35.xli In Dubai Aluminium Co Ltd v Salaam 2002 UKHL 48, itwas stated that employers reap profits so, they should feel the burdens.xlii Nettleship v Weston 1971 2 QB 691 (CA)    xliii …….xliv Jones v Livox Quarries 1952 2 QB 608.xlv Livingstone v Rawtards Coal Co (1880) 5 App Cas 25 xlvi Judicial Studies Board’  guidelines (10th Edition) for the assessmentof general damages in personal injury cases.


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