business law asigment

8/14/2019 Business Law Asigment

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Student name : Nguyen thi hoai thuongClass : BTEC 23Module : aspects of contract and negligence for businessLecture : M !eff Lau

Task 1"n # $une 2%#3 & Ms 'aren (ng & the business manager of S)N*+TELL ,TE LT-recei.ed brochures from S(MSEN* ,TE LT- & ad.ertising the latest limited edition ofiN"TE / smart phone for sale at 0#%% per set

Ms (ng felt that it is good deal & so she sent an e1mail to S(MSEN* ,te on hehaftS)N*+TELL ,te stating & e are glad to place an order for #%% set & on 3%1day creditterm"n 2 $un 2%#3 S(MSEN* pte ltd replied by e1mail that they could deli.er #%% set & on4cash on deli.ery 4terms

"n 3 $un 2%#3 & Ms (ng &sent out a letter on behalf of S)N*+TLL ,lt Ltd informingS(MSEN* ,tl Ltd that they ere agree to paying cash on deli.ery of the i"NE /smartphone 5 this letter reached S(MSEN* pte Ltd on 6 $une 2%#3

"n 7 $une 2%#3 S(MSEN* ,TE Ltd e1mailed S)N*+TELL ,te Ltd that stating that theyere unable to deli.er the i"NE / smartphone as they had run out of stoc8 5due to

o.er helming demand

1.1 In order to help SING & TELL Pte management team understand the case ,explain the importance o the essential elements re!uired or the ormation o a

"alid contract9hat is contract ( contract is an agreement bet een t o or more parties made into riting designed to

protect each parties 5 "ne of the most essential re;uirement of a .alid contract is that itmust be signed by the parties in.ol.ed5(nd there


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after a reasonable time in the circumstances)n.itation to treat(n in.itation to treat is a mere declaration of illingness to enter into negotiations> it isnot an offer& and cannot be accepted so as to form a binding contract5 (n agreement is notcreated if there is an acceptance of the in.itation to treat5

(n in.itation to treat is part of the preliminaries of negotiation& hereas an offer islegally binding once accepted& sub$ect to compliance ith the terms of the offer5


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-)


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E=ample: D offers to sell his car to for s5 #&%%&%%%5 accepts D s offer5 )f thecar has not yet been deli.ered by D and the price has not yet been paid by & it is ane=ecutory contract5

?c@ ,artly E=ecuted and ,artly E=ecutory Contract )t is a contract here one of the

parties to the contract has performed his obligation and the other party has still to performhis obligation5

E=ample: D offers to sell his car to for s5 #&%%&%%% on a credit of one month5 accepts D s offer5 D deli.ers the car to 5 Gere& the contract is e=ecuted as to D ande=ecutory as to 5

?d@ nilateral Contract (n nilateral contract is one sided contract in hich only one party has to perform his promise or obligation to do or forebear5

?e@ Bilateral Contract ( Bilateral Contract is one in hich both the parties ha.e to

perform their respecti.e promises or obligations to do or forebear5

Contracts on the Basis on Enforceability"n the basis of enforceability& the contracts may be classified as under :

?a@ Halid Contract : ( contract hich satisfies all the condition& prescribed by la is a.alid contract5

E=ample: D offers to marry 5 accepts D s offer5 This is a .alid contract5

?b@ Hoid Contract : Section 2?$@ of the )ndian Contract (ct& #IJ2& ( contract hichceases to be enforceable by la becomes .oid hen it ceases to be enforceable5F )n other

ords& a .oid contract is a contract hich as .alid hen entered into but hichsubse;uently became .oid due to impossibility of performance& change of la or someother reason5

E=ample: D offers to marry 5 accepts D s offer5 Later on dies5 This contract as.alid at the time of its formation but became .oid on the death of 5

?c@ Hoid (greement (ccording to Section 2?g@& (n agreement not enforceable byla is said to be .oid5F Such agreements are .oid1ab1initio hich means that they areunenforceable right from the time they are made5

E=ample: (n agreement ith a minor or a person of unsound mind is .oid1ab1initio because a minor or a person of unsound mind is incompetent to contract5

Thus& a .oid agreement ne.er matures into a contract5


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?d@ Hoidable Contract (ccording to Section 2?i@ of the )ndian Contract (ct& #IJ2& anagreement hich is enforceable by la at the option of one or more of the parties thereon

but not at the option of the other or othersF& is a .oidable contract5 )n other ords& (.oidable contract is one hich can be set aside or repudiated or a.oided at the option ofthe aggrie.ed party5F ntil the contract is set aside or repudiated by the aggrie.ed party&

it remains a .alid contract5


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Ms (ng felt that it is good deal& so she sent an e1mail to S(MSEN* ,te on behalf ofS)N*+TELL ,te stating& e are glad to place an order for #%% set& on 3%1day creditterm 5 This is an offer& because they are indicating the conditions and descriptions of thesales5

"n 2 $un 2%#3 S(MSEN* ,te Ltd replied by e1mail that they could deli.er #%% set& on4cash on deli.ery 4terms5 This is counter offer because they ha.e proposed a necondition for the sales& hich is Cash on -eli.ery5

"n 3 $un 2%#3 & Ms (ng &sent out a letter on behalf of S)N*+TeLL ,lt Ltd informingS(MSEN* ,tl Ltd that they agreed to paying cash on deli.ery of the i"NE /smartphone 5 this letter reached S(MSEN* pte Ltd on 6 $une 2%#3

)f according to ,ostal rule& this ill e;ual to an acceptance by post because according to,ostal ule& the acceptance is completed the moment the letter is being posted5

"n 7 $une 2%#3 S(MSEN* ,TE Ltd e1mailed S)N*+TELL ,te Ltd that stating that theyere unable to deli.er the i"NE / smartphone as they had run out of stoc8 5due to

o.er helming demand 5

)f according to ,ostal ule& S(MSEN* ,TE LT- ill ha.e to fulfill the contract as theContract has been accepted as soon as the letter is being ,osted5 Go e.er& they candispute the acceptance because there are no indication of acceptance must be completed

by ,ost5 Moreo.er& during the negotiation process& email has been the defaultcommunication5


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#.1 )nal$(e the rights and o%ligations o *r -ustin lur%lur , super ast car rentalsPte Ltd and reall$ asts car Pte Ltd in respect o the rented %ridal car . 'hat are the

speci ic contract terms 'ith re erence to their importance and impact it these termare %roken/

a. representation and misrepresentation 0 term ( representation is a statement of fact made by one party to the contract ?the

representor@ to the other ?the representee@ hich& hile not forming a term of thecontract& is yet one of the reasons that induces the representee to enter into thecontract5 ( misrepresentation is simply a representation that is untrue5 GalsburyAsLa s of England has a hole boo8 on Misrepresentation5 )t describesmisrepresentation as follo s:

( misrepresentation is a positi.e statement of fact& hich is made or adopted by a party to a contract and is untrue5 )t may be made fraudulently& carelessly orinnocently5

Misrepresentation 9here one person ?the representor@ ma8es a misrepresentation toanother ?the representee@ hich has the ob$ect and result of inducing the representeeto enter into a contract 555 ith him& the representee may generally elect to regard thecontract as rescinded5

)n these circumstances& he may in.o8e the aid of the Court& hich may confirm bydeclaration his entitlement to so regard the contract& and grant him other relief as mayflo directly from the fact of rescission& for e=ample& the return of money paid orchattels deli.ered by him pursuant to the terms of the contract5

(lternati.ely& he may set up his entitlement to regard the contract as rescinded byay of a defence in any proceedings brought against him in order to enforce its

terms5

(lmost since time immemorial& misrepresentation often lur8s hen goods are sold byasserti.e salesmen& al ays ready and prepared to trump their ares& and close thedeal> innocent e=aggeration or contractual misrepresentation

Because of that constant pressure& and the ine;uities that ha.e& from time to time&resulted& the common la and e;uity ha.e been smitten ith misrepresentationresulting in a comple= set of rules to apply in any attempt to determine in eachindi.idual case& hether grounds for rescission e=ists or not5


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"ne of the many detours of the la in this area is a class of contracts in hich thecourts ill loo8 more harshly upon any misrepresentation 1 merely because of thenature of the contract or the po er1relationship bet een the parties to the contract to

hich& lea.ing the la e.en more remote to the non1la yer& they ha.e gi.en a Latinname: uberrmae fidei5

Cheshire& or both& then& if other ise he ould be entitled to rescind thecontract ithout alleging fraud& he shall be so entitled& sub$ect to the pro.isions ofthis (ct& not ithstanding the matters mentioned ?abo.e@5

9here a person has entered into a contract after a misrepresentation has been madeto him by another party thereto and as a result thereof he has suffered loss& then& if the

person ma8ing the misrepresentation ould be liable to damages in respect thereofhad the misrepresentation been made fraudulently& that person shall be so liablenot ithstanding that the misrepresentation as not made fraudulently& unless he

pro.es that he had reasonable ground to belie.e and did belie.e up to the time thecontract as made the facts represented ere true5

9here a person has entered into a contract after a misrepresentation has been madeto him other ise than fraudulently& and he ould be entitled& by reason of themisrepresentation& to rescind the contract& then& if it is claimed& in any proceedingsarising out of the contract& that the contract ought to be or has been rescinded& thecourt or arbitrator may declare the contract subsisting and a ard damages in lieu ofrescission& if of opinion that it ould be e;uitable to do so& ha.ing regard to thenature of the misrepresentation and the loss that ould be caused by it if the contract

ere upheld& as ell as to the loss that rescission ould cause to the other party5http:PP 5duhaime5orgPLegal-ictionaryPMPMisrepresentation5asp=

%. Importance o Terms, conditions and 'arrantiesToday s ;uality systems mandate contract re.ie as an integral part of an enterprise scritical business system5 Terms and conditions are seldom gi.en the criticale=amination that they deser.e5 9hile they are often thought of as mere contingency
http://www.duhaime.org/LegalDictionary/M/Misrepresentation.aspxhttp://www.duhaime.org/LegalDictionary/M/Misrepresentation.aspx


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details& the day may come hen the contingency has arri.ed5 Go has yourorganiQation implemented contract re.ie

9arranty e=clusions& remedy limitations and indemnification language are only a fe

possible points of concern5 (fter a contract is formedRregardless of hether itAsritten or oralRa battle of the formsF can ensue hen t o companies trade purchase orders and sales proposals or confirmations ith preprinted terms andconditions5 Each companyAs form ill contain terms and conditions& many of hichare contradictory to those of the other party5

(n offer to ma8e a contract can be accepted by any method that is reasonable underthe circumstances5 (n offer to buy goods can be accepted by a prompt promise toship or by the current shipment of conforming goods5 (ny acceptance or rittenconfirmation that indicates an intention to enter into a contract ill be effecti.e as an

acceptance& as long as it is sent ithin reasonable time5 This is true e.en if theacceptance states different terms for the contract unless the acceptance is e=presslyconditional on assent to the acceptance terms5

)f different terms and conditions are sent in return& additional terms ill be added tothe contract unless they ha.e a material ad.erse affect on it5 )n the e.ent of a conflict&

both terms ill be eliminated and the terms of the CC ill be applied5

)f you are a seller& here are some strategies to help you a.oid the battle of the forms:

)nsist on ritten agreements& either in the form of a formal contract or a purchaseorder5

se a process that ensures that the other party ac8no ledges in riting that yourterms and conditions supersede their terms and conditions5)f you are the buyer& use a process that ensures that you 8no hat terms andconditions are go.erning your agreement to buy5The CC is still a rele.ant source for understanding and resol.ing sales contract la 5

our companyAs contract re.ie process is animportant business practice designed to help 8eep you from ha.ing to learn too muchabout the CC5

ConditionsF are terms that the parties consider so important that it must be performed5 )f a party fails to perform a condition& the other party is entitled to treatthe contract as being at an end5 "nce the breach of a condition has been established&the innocent party may choose to either:

Terminate the contract and sue for damages& or (ffirm the contract ?i5e5 the innocent party continues to perform its contractualobligations@& sue for damages and pursue other remedies li8e in$unctions or specific

performance5


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)nal$sis o 2ase


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Terms implied by the courtsThe courts may determine that the parties intended a term to be included in the contract based on the facts& e.en if it as not specifically e=pressed inthe contract5The courts may also imply a term in the contract if they consider that the laimplies such a term into the contract based on common la decisions5

)n The Moorcoc8 #II the o ners of a ship entered into a contract ith the harfoperators to ground their ship at the harf5 The ship suffered damage5The ship o nerssued for breach of contract and the harf operators argued that no term of the contracthad been breached5GeldThe Court of (ppeal held that there as an implied term in the contract thatreasonable care ould be ta8en by the harf operators to enable the ship to moor safely5(lso& in Scally . Southern Gealth and Social Ser.ices Board ?Northern )reland@ # 2thecourt ruled that defendants should ha.e ta8en reasonable steps to inform a doctor of hisne pension rights5 (lthough the contract did not state that such steps should be ta8en&the court stated that it could be implied in lahttp:PP;uiQlet5comP##J3 JI#Pcontract1la 1e=press1and1implied1terms1flash1cardsP

? cai tren 8 duoc co the dung thu cai duoi http:PPla e=ams5comPimplied1contracts@%. 3hat is standard orm contract, its ad"antages and disad"antages

( standard1form contract is other ise 8no n as standardiQed contract5 Standard1formcontract is usually a preprinted contract containing set clauses5 Such contract is mostlyused by a business or ithin a particular industry by ma8ing slight additions ormodifications in order to meet the specific situation5 Since a standard1form contractfa.ors the drafting party& they can amount to adhesion contracts5 nforeseeablecontingencies affecting performance& such as stri8es& fire& and transportation difficultiescan be ta8en care of ith the help of standard1form contract5 Some ad"antages and disad"antages are as %elo'(d.antages

Sa.e TimeSa.e time by using a standard form contract in your ne=t business transaction5 ,ull out a

preprinted contract and fill in the blan8s5 ou can use this for real estate transactions&such as a rental agreement& here both parties agree on the basics of the contract andmost of the terms5


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reduction negotiating

educe time you may spend negotiating each of the terms of the standard form contract5

-etermine hich terms are necessary for a smooth business transaction and concentrateyour negotiation on those terms5 Cross out the terms hich are inapplicable and rite inother applicable terms not co.ered in the standard form5 e.ie terms such as arbitrationor a.ailability of attorney fees for dispute clauses& application of state la s clauses& andtermination clauses to determine if these terms are acceptable5

Eliminate (ttorney


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regarding an action that you feel you should not be obligated to perform& as8 that it bechanged to may5


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complaint as made ithin the time stated& and this ould not ha.e been fair to the buyers5

(nother case of St (lbans City and -C . )nternational Computers ?# 7@& the courtdecided that there as a breach of contract by the defendants ?)nternational Computers@&

that there as negligence on the part of the defendants& and the clause as seen asunreasonable5

)n the case of ".erland Shoes Ltd . Schen8ers ?# I@& the re;uirements under the nfairContract Terms (ct # JJ had been fulfilled5 This as appealed by the defendants> thecourt decided the defendants could not claim that the clause as unfair or unreasonable5

)n the case of *eorge Mitchell .


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V. onepage+; fairnessW2%ofW2%e=emptionW2%clauseW2%andW2%unfairW2%contractW2%termW2%act+f false@

c. Exemption o lia%ilities protected %$ Sales o Goods )ct

4 )ction to claim damages or un air contract terms

Misrepresentation in English la is an area of English contract la & hich allo s a person to escape a contractual obligation or claim compensation for losses5 )f one personcan sho that he entered an agreement because of another personAs false assurances& thenthe other person ill be unable to enforce the agreement against him& and may ha.e to

pay him damages5 ( misrepresentation can be an outright lie ?fraud@& an unintentional butcareless falsehood ?negligence@& or an innocent slip of the tongue5 )n most casesX#YEnglish la allo s escape from the bargain hen a misrepresentation as made& becauseit holds that people should only assume contractual obligations hen they ha.e gi.entheir true consent5

9hen a misrepresentation has been made and an agreement as ?or at any rate appearedto be@ concluded& the misrepresented ?the one told the lie& falsehood& etc5@ does not ha.eto bring a halt to the deal5 Misrepresentations generally do not render a contract .oid& asdoes the contractual doctrine of common mista8e or frustration5 )t merely means that acontract ill be .oid able at the option of the misrepresented5 This is because not allcontracts entered into on the strength of misrepresentations ill al ays be bad& and it isthought more $ust to gi.e the ronged party the choice about ho to proceed5

emedies are partly regulated by the Misrepresentation (ct # /J5 English la generallyallo s a contract to be un ound& so that both parties are put bac8 into the position beforethe agreement as made5 )t may be that the misrepresentation as incorporated into thecontract as a term& so as an alternati.e one can claim the contract should subsist andclaim for a loss in e=pectations5X2Y )n this case the misrepresented can e;ually sue fordamages as if the misrepresentation had been true5 ( misrepresented may also sue for anylosses hich resulted from her relying on the misrepresentation .

-amagesMonetary compensation that is a arded by a court in a ci.il action to an indi.idual hohas been in$ured through the rongful conduct of another party5

-amages attempt to measure in financial terms the e=tent of harm a plaintiff has suffered because of a defendantAs actions5 -amages are distinguishable from costs& hich are thee=penses incurred as a result of bringing a la suit and hich the court may order thelosing party to pay5 -amages also differ from the .erdict& hich is the final decisionissued by a $ury5

The purpose of damages is to restore an in$ured party to the position the party as in before being harmed5 (s a result& damages are generally regarded as remedial rather than pre.enti.e or puniti.e5 Go e.er& ,uniti.e -amages may be a arded for particular typesof rongful conduct5 Before an indi.idual can reco.er damages& the in$ury suffered must
http://books.google.com.vn/books?id=QflM2mQMGGoC&pg=PA163&lpg=PA163&dq=fairness+of+exemption+clause+and+unfair+contract+term+act&source=bl&ots=L65Ov6HKDJ&sig=aXvPJSeHbqFT1wrL-st8sWF0QR4&hl=vi&sa=X&ei=2gxuUv7bEIOGrQehjYGACQ&ved=0CFEQ6AEwBQ#v=onepage&q=fairness%20of%20exemption%20clause%20and%20unfair%20contract%20term%20act&f=falsehttp://books.google.com.vn/books?id=QflM2mQMGGoC&pg=PA163&lpg=PA163&dq=fairness+of+exemption+clause+and+unfair+contract+term+act&source=bl&ots=L65Ov6HKDJ&sig=aXvPJSeHbqFT1wrL-st8sWF0QR4&hl=vi&sa=X&ei=2gxuUv7bEIOGrQehjYGACQ&ved=0CFEQ6AEwBQ#v=onepage&q=fairness%20of%20exemption%20clause%20and%20unfair%20contract%20term%20act&f=falsehttp://books.google.com.vn/books?id=QflM2mQMGGoC&pg=PA163&lpg=PA163&dq=fairness+of+exemption+clause+and+unfair+contract+term+act&source=bl&ots=L65Ov6HKDJ&sig=aXvPJSeHbqFT1wrL-st8sWF0QR4&hl=vi&sa=X&ei=2gxuUv7bEIOGrQehjYGACQ&ved=0CFEQ6AEwBQ#v=onepage&q=fairness%20of%20exemption%20clause%20and%20unfair%20contract%20term%20act&f=falsehttp://books.google.com.vn/books?id=QflM2mQMGGoC&pg=PA163&lpg=PA163&dq=fairness+of+exemption+clause+and+unfair+contract+term+act&source=bl&ots=L65Ov6HKDJ&sig=aXvPJSeHbqFT1wrL-st8sWF0QR4&hl=vi&sa=X&ei=2gxuUv7bEIOGrQehjYGACQ&ved=0CFEQ6AEwBQ#v=onepage&q=fairness%20of%20exemption%20clause%20and%20unfair%20contract%20term%20act&f=false


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be one recogniQed by la as arranting redress& and must ha.e actually been sustained by the indi.idual5

The la recogniQes three ma$or categories of damages: Compensatory -amages& hichare intended to restore hat a plaintiff has lost as a result of a defendantAs rongful

conduct> nominal damages& hich consist of a small sum a arded to a plaintiff ho hassuffered no substantial loss or in$ury but has ne.ertheless e=perienced an in.asion ofrights> and puniti.e damages& hich are a arded not to compensate a plaintiff for in$urysuffered but to penaliQe a defendant for particularly egregious& rongful conduct5 )nspecific situations& t o other forms of damages may be a arded: treble and li;uidated5

Compensatory -amages

9ith respect to compensatory damages& a defendant is liable to a plaintiff for all thenatural and direct conse;uences of the defendantAs rongful act5 emote conse;uences ofa defendantAs act or omission cannot form the basis for an a ard of compensatory

damages5Conse;uential damages& a type of compensatory damages& may be a arded hen the losssuffered by a plaintiff is not caused directly or immediately by the rongful conduct of adefendant& but results from the defendantAs action instead5


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( plaintiff may reco.er compensatory damages for both present and future physical painand suffering5 Compensation for future pain is permitted hen there is a reasonableli8elihood that the plaintiff ill e=perience it> the plaintiff is not permitted to reco.er forfuture pain and suffering that is speculati.e5 The $ury has broad discretion to a arddamages for pain and suffering& and its $udgment ill be o.erturned only if it appears that

the $ury abused its discretion in reaching the decision5

Mental pain and suffering can be considered in assessing compensatory damages5 Mental pain and suffering includes fright& ner.ousness& grief& emotional trauma& an=iety&humiliation& and indignity5 Gistorically& a plaintiff could not reco.er damages for mental

pain and suffering ithout an accompanying physical in$ury5 Today& most $urisdictionsha.e modified this rule& allo ing reco.ery for mental anguish alone here the act

precipitating the anguish as illful or intentional& or done ith e=treme care1lessness orrec8lessness5 "rdinarily& mental distress brought on by sympathy for the in$ury of another

ill not arrant an a ard of damages& although some $urisdictions may allo reco.ery ifthe in$ury as caused by the illful or malicious conduct of the defendant5


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in$ured person had the capacity to earn prior to the in$ury and the amount he or she iscapable of earning after the in$ury& in .ie of his or her life e=pectancy5

Loss of profit is another element of compensatory damages& allo ing an indi.idual toreco.er if such a loss can be established ith sufficient certainty and is a direct and

probable result of the defendantAs rongful actions5 E=pected profits that are uncertain orcontingent upon fluctuating conditions ould not be reco.erable& nor ould they bea arded if no e.idence e=isted from hich they could be reasonably determined5

( plaintiff can reco.er all reasonable and necessary e=penses brought about by an in$urycaused by the rongful acts of a defendant5 )n a contract action& for e=ample& the party

ho has been in$ured by anotherAs breach can reco.er compensatory damages that includethe reasonable e=penses that result from reliance on the contract& such as the cost oftransporting perishable goods rongfully refused by the other contracting party5 )n otheractions& e=penses a arded as part of compensatory damages may include medical&nursing& and prescription drug costs> the costs of future medical treatment& if necessary>

or the costs of restoring a damaged .ehicle and of renting another .ehicle hile repairsare performed5

)nterest can be a arded to compensate an in$ured party for money rongfully ithheldfrom her or him& as hen an indi.idual defaults on an obligation to pay money o edunder a contract5 )nterest is ordinarily a arded from the date of default& hich is set bythe time stated in the contract for payment& the date a demand for payment is made& or thedate the la suit alleging the breach of the contract is initiated5http:PPlegal1dictionary5thefreedictionary5comPdamages

)nal$sis o the 2ase

(ssuming that the standard form contract is being used& the e=emption ill probably beone1sided to ards the seller5 )n such cases the e=emption clause may not be fair to the

buyer5

E=emption clause should not be used to omit the liabilities that form the condition or thecore of the contract5

)n the case for !ustin& he need to 8no that the Sales of *oods (ct has pro.ision for thecondition of sales5

#5 *oods must be of ;uality and fit for purpose5Gis


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)n conclusion& the e=emption clause is unfair to him because his basic rights are not being protected5 Therefore& he can .oid both contract and then as8 for compensation5

business law asigment

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