Lawcan be described as a set of regulations, developed over a long period of clip that regulates interactions that people have with each other, and which sets criterions of behavior between persons and between persons and the authorities and which are enforceable through countenance, as described in Business Law ( Lee and Detta, 2009, p. 2 ) .Business jurisprudence, as one of a subdivision of Torahs, shapes commercial endeavor and is relevant to all members of society.
The rubric of this assignment isThe Law and Its Elementss. There are two scenarios and four undertakings. Task one and two ( scenario one ) will be coveringThe Law of Contract, while undertaking three and four ( scenario two ) will be coveringThe Law of Tort.
2.0 House Renting Contract
The word ‘contract’ ( Lee and Detta, 2009, p. 132 ) may be defined as ‘an understanding enforceable by law’ . House leasing contract can be referred as occupancy understanding. A occupancy understanding ( gov.uk, 2014 ) is a contract between an person or more with a landlord.
There aresix basic elementsof a contract shown below:
- Credence of the offer
- Purpose to make legal dealingss
2.1 Offer and Acceptance of the Offer
By and large, there must be a matching offer and credence between the offerer and the offeree. Under the Contracts Act 1950 and English Law, an offer is something which is capable of being converted into an understanding by its credence. Then, the communicating of a proposal is complete when it comes to the cognition of the individual to whom it is made – subdivision 4 ( 1 ) of the Contracts Act 1950.
Acceptance of an offer must be communicated and must follow with the footings of offer. Section 2 ( B ) of the Contracts Act 1950 provides that when the individual to whom the proposal or offer is made signifies his assent thereto, the offer is said to hold been accepted.
2.2 Intention to make Legal Relations
Harmonizing to Business Law ( Judge, 1999, p.68 ) , there must be an purpose by the parties that their understanding was to give rise to a legal relationship. Cases where no purpose to come in into legal dealingss can be imputed such as the instance ofMerritt v. Merritt [ 1970 ] 2 All ER 760the fact that an understanding between hubby and married woman refering belongings and care was concluded when they were already separated and was in authorship was grounds of legal purpose.
Valuable consideration has been an ‘essential’ of a valid contract sinceEastwood v. Kenyon ( 1840 ) 11 Ad & A ; El 438. Section 26 of the Contracts Act 1950 provides that, as a general regulation, an understanding without consideration is null. The best definition ( Judge, 1999, p. 63 ) , of consideration is by Sir Frederick Pollock: ‘ ( a ) An act or patience of one party, or ( B ) the promise thereof, is the monetary value for which the promise of the other is bought, and the promise therefore given for value is enforceable.’
The footings of an understanding can non be obscure but must be certain. An understanding which is unsure or is non capable of being made certain is null. InKaruppan Chetty V Suah Thian [ 1916 ] FM SLR 300, the demand of certainty was non met when the parties agreed upon the granting of a rental ‘at RM35.00 per month for every bit long as he likes’ .
The parties come ining into a contract ( Lee and Detta, 2009, p. 156 ) should besides be competent to contract, for illustration, they must hold the legal capacity to make so. Capacity refers to the ability of the parties to a contract to to the full understand its footings and duties.
Section 11 of the Contracts Act 1950 reads:
Who are competent to contract.
11. Every individual is competent to contract who is of the age of bulk harmonizing to the jurisprudence to which he is capable, and who is of sound head, and is non disqualified from undertaking by any jurisprudence to which he is capable.
2.6 Briefing of chief elements to manager
Harmonizing to ( Smallbusiness.wa.gov.au, 2014 ) , an understanding must incorporate four indispensable elements to organize a contract. Any of these losing will non be lawfully adhering. That would be offer, credence, purpose of legal dealingss and consideration. Below is the house leasing contract that explained these few chief elements of the contract.
2.7 Residential Lease
This Residential Lease shall grounds the complete footings and conditions under which the parties whose signatures appear below have agreed. Landlord, FAN YOKE LING, shall be referred to as “ OWNER ” and Lessee, JUSTIN YEE JUN WEI, shall be referred to as “ RESIDENT. ” As consideration for this understanding, OWNER agrees to rent to RESIDENT and RESIDENT agrees to rent from OWNER for usage of inn for the company’s worker, the premises located at TAMAN CYBER in the metropolis of IPOH.
1. Footing: Resident agrees to pay RM1, 500 per month for the house rental fees and the rental fees should be paid on the 1stof each month by hard currency or check.
2. Duration OF TENDENCY: Resident agrees to subscribe the contract of 2 old ages of inclination of this house.
3. SECURITY DEPOSITS: There will be a RM 2, 000 security sedimentations to given to the proprietor in progress. By terminal of this understanding, the security sedimentations will be refunded to the occupant within 20 yearss.
A ) To pay rent on the due day of the month.
B ) When the contact ends, the occupant must manus back the house to the landlord with its bing installing and buildings, including redevelopments, fixtures and extra fixs.
C ) To be responsible to all the mending for the amendss of the house on the H2O supply, electricity, sewage system and equipment that had been installed in the house.
D ) To purchase insurance policy for the landlord ‘s belongings ( if it’s necessary ) .
Tocopherol ) During the renting period, occupant have to divide contracts for utilizing public-service corporations with the relevant companies and settling up all charges.
5. Destruction OF PREMISES: If the premiss has been destroyed due to the resident’s mistake, the landlord can end the understanding with 3 yearss of notice to the occupant.
6. Assignment: Resident agreed to non reassign the rental understanding to other people until the understanding period ends.
7. JOINTLY AND SEVERALLY: The undersigned RESIDENTS are jointly and independently responsible and apt for all duties under this understanding.
8. Entire Agreement: This Agreement constitutes the full Agreement between OWNER and RESIDENT.
No unwritten understandings have been entered into, and all alterations or notices shall be in composing to be valid.
9. Reception OF AGREEMENT: The undersigned RESIDENTS have read and understand this Agreement and herewith acknowledge reception of a transcript of this Rental Agreement.
SIGNED BY the Landlord }
FAN YOKE LING }
( NRIC NO: 640827-08-5844 ) }
In the presence of: – }
FAN HEW TENG }
( NRIC NO: 920208-08-7360 ) }
SIGNED BY the Tenant }
JUSTIN YEE JUN WEI }
( NRIC NO: 920716-08-5321 ) }
In the presence of: – }
CHAN PING KEI }
( NRIC NO: ) }
3.0 Legal actions by landlord
The landlord claimed that our employee damaged the closet after the one month stayed in the rented house. Referred to ( Lee and Detta, 2009 ) , breach of contract occurs where a party fails to execute their duties as agreed. In this issue, we had failure to follow with a term in the subdivision 7 of the contract. In this affair, if we do non repair the closet, we will be charged of breach of contract. Therefore, compensation has to be given for harm caused by breach of contract based onsubdivision 74 of the Contracts Act 1950. Therefore, there’s an easy ways to work out this job by repairing or mending back the closet for the landlord to avoid acquiring sued by the landlord.
3.1 Fair wear and rupture
Referred to ( Fairtrading.nsw.gov.au, 2014 ) , the renter is non responsible for just wear and rupture to the premises. The significance of just wear and tear is the impairment that occurs after long clip of usage with sensible care to the premises. This sort of impairment is normally caused by clip, exposure and ordinary usage. The occupants are non apt for personal belongings amendss cause by normal just wear and rupture such as bleached drape, scuffed wooden floor, worn kitchen bench top, furniture indentures and so on.
3.2 Act of God
The occupants are non apt for personal belongings amendss caused the act of God. Harmonizing to ( Meena, 2008, p. 213 ) , it is defined to be any accident, due straight and entirely to natural causes without human intercession, which by no sum of foresight, pains or attention, moderately to hold been expected, and could hold been prevented.
4.0 Law of Tort
One of the coach drivers met with an accident last weekend and do five riders to be injured in the accident.
Harmonizing to ( Cecp.air.org, 2014 ) , tort Torahs are Torahs that offer remedies to persons harmed by the unreasonable actions of others. Tort claims normally involve province jurisprudence and are based on the legal premiss that persons are apt for the effects of their behavior if it consequences in hurt to others ( McCarthy & A ; Cambron-McCabe, 1992 ) . Tort Torahs involve civil suits, which are actions brought to protect an individual’s private rights.
4.1 Rules and Regulations of Tort Law
Negligenceis the most of import country of civil wrong jurisprudence. Harmonizing to ( Lee and Detta, 2009, p. 230 ) , carelessness is the skip to make something which a sensible individual would make, or making something which a prudent and sensible individual would non make.
4.1.2 Duty to Take Care
Harmonizing to ( Lee and Detta, 2009, p. 231 ) , Not every careless act done by a individual consequences in his being held responsible in jurisprudence. He will merely be apt in carelessness if he is under a legal responsibility to take attention. There can be no legal liability for professional carelessness unless there has been a breach ofresponsibility of attentionowed by the professional to a client or to a 3rd party.
4.1.3 Breach of Duty
Harmonizing to ( E-lawresources.co.uk, 2014 ) ,Breach of responsibilityin carelessness liability may be found to be where the suspect fails to run into the criterion of attention required by jurisprudence. Once it has been established that the suspect owed the claimant a responsibility of attention, the claimant must besides show that the suspect was in breach of responsibility.
To showcausingin civil wrong jurisprudence, the claimant must set up that the loss they have suffered was caused by the suspect. In most instances a simple application of the ‘but for ‘ trial will decide the inquiry of causing in civil wrong jurisprudence. I.e. ‘but for ‘ the suspect ‘s actions, would the claimant have suffered the loss? If yes, the suspect is non apt. If no, the suspect is apt. Causing may be debatable where there exists more than one possible cause. Assorted preparations have evolved to ease the load of turn outing causing in such state of affairss as described in ( E-lawresources.co.uk, 2014 ) .
Harmonizing to ( E-lawresources.co.uk, 2014 ) , Remoteness of harm relates to the demand that the harm must be of a foreseeable type. In carelessness claims, one time the claimant has established that the suspect owes them a responsibility of attention and is in breach of that responsibility which has caused harm, they must besides show that the harm was non excessively distant. Farness of harm must besides be applied to claims under the Occupiers Liability Acts and besides to nuisance claims.Remoteness of harm is frequently viewed as an extra mechanism of commanding tortious liability. Not every loss will be recoverable in civil wrong jurisprudence. Originally a suspect was apt for all losingss which were a direct effect of the suspect ‘s breach of responsibility:
4.2 Vicarious Liability
Harmonizing to ( Findlaw.co.uk, 2014 ) , If an employee injures person in the class of their employment, the employer may be capable to vicarious liability. This merely means that the injured individual may be able to win compensation for the injury from the employer, instead than the employee.
4.2.1 Strict Liability
Harmonizing to ( Cyber.law.harvard.edu, 2014 ) , under a rigorous liability regulation, the suspect pays for the hurt his behavior causes the plaintiff regardless of whether the suspect was negligent. That is, the suspect pays for both negligent and non-negligent hurts.
5.0 Elementss of Negligence
Harmonizing to the Fundamentals of Business Law ( Barron and Webb et al. , 1996, pp. 60-70 ) , three pre-requisites must be present before the civil wrong of carelessness can originate:
- A responsibility of attention must be owed by one individual to another ;
- There must be a breach of that responsibility of attention ;
- Damage must hold been suffered as a consequence of the breach of responsibility.
5.1 The Legal Duty of Care
The possible complainant ( five riders ) must set up that a legal responsibility of attention is owed to him by the suspect ( bus driver ) . A statement by Lord Atkin inDonoghue v. Stevenson [ 1932 ] AC 562: ‘ You must take sensible attention to avoid Acts of the Apostless or skips which you can reasonably anticipate would be probably to wound your neighbour.’ . Lord Atkin defined neighbors as ‘the individuals who are so closely and straight affected by my act that I ought moderately to hold them in contemplation as being so affected when I am directing my head to the Acts of the Apostless or skips which are called into question’ .
5.2 Breach of the Duty of Care
Whether there has been a breach of responsibility of attention is based on the nonsubjective trial of a sensible adult male to the state of affairs. The tribunal takes history of the undermentioned factors:
- The likeliness of injury
- The earnestness of the hazard and the hazard of serious hurt
- The societal importance of the defendant’s activity at the relevant clip
- The relationship between the hazard and the steps taken
As a consequence of the instance ofBlyth v. Birmingham Waterworks Co. [ 1856 ] 11 Ex 781, it is stated that a individual must guard against the normal phenomena of nature, but non against the unusual 1s.
5.3 Injury or Damages ensuing from the Negligent action or Omission
Harmonizing to the instance ofBarnett v. Chealsea & A ; Kensington Management Committee [ 1969 ] 1 QB 428, the harm must be related to the breach of responsibility and non the consequence of something else. In this instance, there is no responsibility owed in regard of economic loss.
5.4 Legal Actions that might be Faced
As stated in Fundamentals of Business Law ( Barron and Webb et al. , 1996, p. 77 ) , all drivers owe other route users a responsibility of attention including the other rider inside the vehicle. If this responsibility is breached and harm is suffered, the civil wrong of carelessness has occurred.
5.5 Occupiers’ Liability
Occupiers’ liability is covered by the Occupiers’ Liability Act 1957 and 1984. Occupiers’ liability is an facet of the jurisprudence of carelessness associating to the occupier’s responsibility to protect people from dangers built-in in premises. The act besides defines premises as ‘any fixed or movable construction, including any vas, vehicle or aircraft’ .
In Wheat v. E Lacon & A ; Co. Ltd [ 1966 ] AC 552, the suspects, the proprietor of a public house, were the residents of the premises in add-on to the director and his married woman, who were in existent business.
As we can see here in this instance, the coach driver was in existent business and the manager, is besides considered as an resident. In other words, both the coach driver and the company manager, can be sued for carelessness under occupiers’ liability if the accident was found occurred due to carelessness of the driver.
5.6 Compensatory Damagess in Tort
Damagess are classified as general amendss and particular amendss based on Business Law ( Judge, 1999, p.142 ) . General amendss are presumed to hold resulted from the tortious act, whereas particular amendss will hold to be specifically proved by the complainant. A individual enduring lasting physical and mental hurt can be awarded amendss under a assortment of caputs.
5.7 Pure Economic Loss
The complainant can retrieve amendss ( I ) for physical hurt, mental agony and nervous daze where the harm is non excessively distant ; and ( two ) for monetory loss caused by physical injury to his/her belongings which is the foreseeable consequence of the defendant’s negligenc. The differentiation in between has shown in instanceSpartan Steel and Alloys Lts. V. Martin & A ; Co. Ltd [ 1973 ] QB 27.
The tribunals had been prepared to let recovery for pure economic loss in civil wrong in two state of affairss: ( I ) liability for negligent misstatement ; and ( two ) liability for loss caused by outgo necessary to forestall at hand danger to life or belongings.
5.8 Damages in Tort
The most obvious application is in the civil wrong of transition, where the suspect derives a benefit from the plaintiff’s belongings or the returns from it. The 2nd damages in Tort is restitutionary amendss that depends on the Court’s determination. The last damages is history of net incomes that is available for violations of rational belongings rights, patents, right of first publications, hallmarks, go throughing off and breach of assurance.
Throughout the assignment, we have learnt the ways of retriving assorted believable beginnings from books in the library, books in the E-brary, and besides from the Internet.
Overall, the subject of concern jurisprudence is extended and covers many countries of jurisprudence. Through this assignment, we have learnt more about the chapter of Contact Law and Law of Tort.
Bartsch, R. I. C. 2012. International Aviation Law. Farnham: Ashgate Pub.
Cecp.air.org. 2014. What are Tort Laws? . [ on-line ] Available at: hypertext transfer protocol: //cecp.air.org/interact/authoronline/february99/2.htm [ Accessed: 9 Mar 2014 ] .
Cyber.law.harvard.edu. 2014. [ on-line ] Available at: hypertext transfer protocol: //cyber.law.harvard.edu/bridge/LawEconomics/neg-liab.htm [ Accessed: 10 Mar 2014 ] .
E-lawresources.co.uk. 2014. Breach of responsibility. [ on-line ] Available at: hypertext transfer protocol: //www.e-lawresources.co.uk/Breach-of-duty.php [ Accessed: 10 Mar 2014 ] .
E-lawresources.co.uk. 2014. Causing in civil wrong jurisprudence. [ on-line ] Available at: hypertext transfer protocol: //www.e-lawresources.co.uk/Causation.php [ Accessed: 10 Mar 2014 ] .
E-lawresources.co.uk. 2014. Remoteness of harm. [ on-line ] Available at: hypertext transfer protocol: //www.e-lawresources.co.uk/Remoteness-of-damage.php [ Accessed: 10 Mar 2014 ] .
Fairtrading.nsw.gov.au. 2014. Making a bond claim – NSW Fair Trading. [ on-line ] Available at: hypertext transfer protocol: //www.fairtrading.nsw.gov.au/ftw/Tenants_and_home_owners/Being_a_landlord/Ending_a_tenancy/Making_a_bond_claim.page [ Accessed: 8 Mar 2014 ] .
Findlaw.co.uk. 2014. Vicarious liability – Accidents and Injuries. [ on-line ] Available at: hypertext transfer protocol: //www.findlaw.co.uk/law/accidents_and_injuries/accident_claims/500045.html [ Accessed: 9 Mar 2014 ] .
Finkelman, P. and Alexander, R. S. 2012. Justice and legal alteration on the shores of Lake Erie. Athinais: Ohio University Press.
Gov.uk. 2014. Private leasing for renters: occupancy understandings – GOV.UK. [ on-line ] Available at: hypertext transfer protocol: //www.gov.uk/private-renting-tenancy-agreements/overview [ Accessed: 3 Mar 2014 ] .
Judge, S. 1999. Business jurisprudence. Basingstoke: Macmillan.
Lawhandbook.sa.gov.au. 2014.Exclusion Clauses. [ on-line ] Available at: hypertext transfer protocol: //www.lawhandbook.sa.gov.au/ch10s02s06.php [ Accessed: 4 Mar 2014 ] .
Lee, M. P. and Detta, I. J. 2009. Business jurisprudence. Shah Alam: Oxford Fajar/Oxford University Press.
Lianos, I. and Sokol, D. D. 2012. The planetary bounds of competition jurisprudence. Stanford, Calif. : Stanford Law Books.
Meena, R. L. 2008. Textbook on jurisprudence of contract. Delhi: Universal Law Pub. Co
Out-law.com. 2012.Exclusion and restriction clauses. [ on-line ] Available at: hypertext transfer protocol: //www.out-law.com/en/topics/projects — construction/construction-claims/exclusion-and-limitation-clauses/ [ Accessed: 4 Mar 2014 ] .
Smallbusiness.wa.gov.au. 2014.Four Essential Elementss of a Contract. [ on-line ] Available at: hypertext transfer protocol: //www.smallbusiness.wa.gov.au/four-essential-elements-of-a-contract/ [ Accessed: 4 Mar 2014 ] .