report Common Law (Assignment 1) (Luật)

Taking the responsibilities of a legal executive of a solicitor firm, I made this report recording claims accomplished with my recommendations to my client (Mr. Winslow) as well as my interpreting in the related problems. During the process of analyzing details in the claims, I applied all my knowledge and the theory about these terms to make the best suggestions for my client. Furthermore, I would like my client to have understanding about their situation to make a right decision and to know more about contract law and its importance in society. Besides, this report is to provide an introduction to the law of contract with a particular focus on the formation and operation of a business contract. In addition, the current report also contains the practical application of standard form contract.

A REPORT OF COMMON LAW IN LAW OF CONTRACT

BANKING ACADEMY OF VIETNAM

Prepared by Student ID:

Class:

No of words: 4488 (Excluding executive summary, introduction, conclusion, table

of contents, appendix and references)

EXECUTIVE SUMMARY

Law provides rules which can or cannot be done in personal lives and in business lives.Contracts can appear in simple situations in daily life, but modern society operates by people andcompanies exchanging goods and services and contracts are evidence for the human civilization

in their activities The law of contract helps to give a structure to measure and evaluate them inparticular situations

The law of contract is part of Private Law, so it is concerned with relationships between parties

It helps us to decide what a valid contract is In addition, the Law of Contract is also part of CivilLaw, so it is concerned with remedies It helps us if the other party in a contract does not keep tothe agreement The presence of contract law is a good tool for business activities in aimingclarity and fairness and contributes to economic growth of each country as well Therefore,contract law increasingly plays a more and more important role in common law system fromwhich it can originally be traced Moreover, most of transactions in society, no matter forbusiness purposes or common needs, relate to contract law Based on equal, voluntary, agreeableand responsible rules between two or more parties, contract law is identified to ensure thefreedom for participants and this is only limited by some exceptions to ensure public order or therights for the third party

Taking the responsibilities of a legal executive of a solicitor firm, I made this report recordingclaims accomplished with my recommendations to my client (Mr Winslow) as well as myinterpreting in the related problems During the process of analyzing details in the claims, Iapplied all my knowledge and the theory about these terms to make the best suggestions for myclient Furthermore, I would like my client to have understanding about their situation to make aright decision and to know more about contract law and its importance in society Besides, thisreport is to provide an introduction to the law of contract with a particular focus on the formationand operation of a business contract In addition, the current report also contains the practicalapplication of standard form contract

Based on the claims and legal issues relating to problems surrounding Mr Winslow, I play a role

as a consultant about law especially contract law for him to deal with those problems and givehim useful recommendations By all of my effort for investing time to study principles ofcontract law and legal legislations to analyze these problems, I asserted the rights that my client

is worth getting and the strengths he was holding In other words, I tried to find all means toshow evidence contradicting the claims Mr Winslow require me to justify

By making a detail about the problems and what I have done, this report could become a goodreference for me in the future Moreover, it is also a proof which determines my level in this field

to be better and more confident to deal with similar problems This is also a good experience for

me to improve my knowledge about the essential elements of a valid and legally binding contractand its role in business context as well as the significance of specific terms in a business contract.After dealing with these problems, I believe that I could be more flexible in considering claimsand applying contract law on my future work in term of economic field

TABLE OF CONTENTS

Cover sheet 1

Title page 4

Executive summary 5

Table of contents 6

1 Introduction 1.1 Basic concept of Contract Law

1.2 The aims, purposes, scopes

1.3 Sources of information

1.4 Limitation of weakness

9 9 10 10 1a TYPES OF BUSINESS AGREEMENT AND THE IMPORTANCE OF THE KEY ELEMENTS IN A VALID CONTRACT 1a.1 EXPLANATION OF CONTRACT

1a.1.1 DEFINITION OF CONTRACT

1a.1.2 EXAMPLES FOR DIFFERENT TYPES OF CONTRACTS

1a.1.3 SITUATIONS TO ENTER INTO A CONTRACT

1a.2 TYPES OF BUSINESS AGREEMENT

1a.2.1 AGREEMENT …

1a.2.2 EXAMPLES OF TYPES OF BUSINESS AGREEMENT

1a.3 THE IMPORTANCE OF KEY ELEMENTS IN A CONTRACT

1a.3.1 THE ESSENTIAL ELEMENTS TO FORM A CONTRACT

1a.3.2 EFFECT OF CONTRACT WHEN KEY ELEMENTS ARE

ABSENT

1a.3.3 EFFECT ON AFFECTED PARTIES

11 11 11 12 13 13 13 14 14 14 15 1b ANALYSIS OF THE SCENARIO FROM THE PERSPECTIVE OF THE LAW OF CONTRACT AND APPLICATION OF OFFER AND ACCEPTANCE’S RULES IN A GIVEN SCENARIO AND THE IMPACT OF NEW TECHNOLOGY 1b.1 ONLINE TRANSACTION

1b.2 DEFENCE AGAINST WINSLOW

1b.3 DEFENCE AGAINST CHARLENE

16 16 17

1b.4 HOW TO PREVENT A SIMILAR INCIDENT FROM HAPPENING

AGAIN IN THE FUTURE 17

1c ASSESSION FOR THE IMPORTANCE OF THE RULES OF INTENTION AND CONSIDERATION OF THE PARTIES TO THE AGREEMENT 1c.1 The importance of intention

1c.2 The importance of consideration

1c.3 Mr Winslow V Mrs Winslow

1c.4 Legal intention for a room rental contract

1c.5 Seeking to increase rent

18 18 19 19 20 1d THE IMPORTANCE OF THE CONTRACTING PARTIES HAVING THE APPROPRIATE LEGAL CAPACITY TO ENTER A MINOR AND ANOTHER PARTY 1d.1 Different groups of contracts between a minor and another party

1d.2 betting contract

1d.3 Share contract

1d.4 Fake gold chain contract

20 21 22 23 2a SPECIFIC CONTRACT TERMS WITH REFERENCE TO THEIR IMPORTANCE AND IMPACT IF THESE TERMS ARE BOKEN 2a.1 Terms of existing contract

2a.2 Restraint of trade and remedies

2a.3 Exemption clause

23 24 25 2b STANDARD FORM CONTRACT 2b.1 Definition of standard form contract

2b.2 Validity of the contract 2b.3 Express terms

25 25

2b.3.1 Conditions

2b.3.2 Warranty

2b.4 Implied terms

2b.5 Exemption clause

2b.6 Main purpose rule

2b.7 Fundamental breach

2b.8 Unfair Contract Terms Act 1977

26 26 27 27 28 28 28 2c EFFECT OF EXEMPTION CLAUSES IN ATTEMPTING TO EXCLUDE CONTRACTUAL LIABILITY 2c.1 Exclusion clause

2c.2 Exclusion clause 1: Newport Service can accept no responsibility for any

damage caused as a consequence of repairs carried out on these premises

2c.3 Exclusion clause 2: The exclusion clause of the Newport which claims ‘these premises are dangerous Clients enter these premises at their own risk and Newport Service accepts no responsibility for any damage or injury sustain

29 29 31 CONCLUSION 33

REFERENCE 34

APPENDICES 37

1 INTRODUCTION

1.1 Basic concept of Contract Law

By the different overview from different aspects, the basic concepts of contract law are

known variously As far as the basic requirements to make a contract are concerned, the

basic concepts include an agreement, consideration, intention to create legal relation,certainty as the terms of the agreement and capacity to contract However, they are alsoclassified into five popular areas involved in formal contracts, simple contracts, apparentsimple contracts (intention, agreement and consideration), elements of simple contractswhich may affect validity (capacity, certainty and legality) and simple contracts-forms.

No matter how contract law is interpreted into the basic concepts, it is thoroughlyexamined with the aid of real life cases, the rights and obligations that contracts createand which the law will enforce

1.2 The aims, purposes, scopes

This report mentions to the principles that makes a valid contract through providing anintroduction to the fundamental facts that anyone should know about the Law ofContract My purpose in the process of writing the current report are to record myknowledge and understanding of the main principles of the law of contract Besides, italso supports me with a sound foundation for the study of other subjects based upon orinvolving the law of contract Based on my experience in recommending my client, Icould develop skills of legal analysis and problem solving Therefore, this is a good startfor my effort for my further future

1.3 Sources of information

To support my analysis and evaluations for particular situations, I collected information

from the Internet which contains various sources of information from different

viewpoints Moreover, I found data from the course book Common Law I (Mandatory

Unit 5) to support my explanations Furthermore, in order to make my arguments morepersuadable, I made use of books from the library of Banking Academy Above all, Iused all of my experience and understanding about this field to solve problems and recordthem into this report

1.4 Limitation of weakness

The current report is a result of my careful and hard effort but it cannot avoid limitations

during the process making this report Because of word account that only allows no morethan 3000 words, I have trouble in going in details with my explanations and analysis.The other difficulty that I had to deal with is my weakness in solving the claims to givethe best advice for the client I think that in the next time I will be more confident andcleverer to make a good impression on the clients and hopefully I could get usefulsuggestions from you for my greater improvement

1a TYPES OF BUSINESS AGREEMENT AND THE IMPORTANCE OF THE KEY ELEMENTS IN A VALID CONTRACT

1a.1 EXPLANATION OF CONTRACT

1a.1.1 DEFINITION OF CONTRACT

According to the American Law Institute "a contract is a promise or a set of

promises for the breach of which the law gives a remedy or the performance of which the law in some way recognizes as a duty”.

1a.1.2 EXAMPLES FOR DIFFERENT TYPES OF CONTRACTS

1 Bilateral contract involves an exchange of

promises- a promise for a promise Thornton v Shoe Lane Parking Ltd

(1971) (Appendix 1a.1.1a, p37)

2 Unilateral contract involves an

exchange of an act for a promise

Lefkowitz v Great Minneapolis Surplus Store (1957) (Appendix 1a.1.1b, p37)

3 Express contract is one in which the terms

are expressed verbally, either orally or in

writing

Bovell Vs Voorheis (1879) (Appendix

1a.1.1c, p38)

4 Implied contracts is one in which the

circumstances imply that parties have

reached an agreement.

Clarke v Dunraven (1897) (Appendix 1a.1.1d, p39)

5 Promissory estoppel : a party can rely on

a promise made by another party despite

the nonexistence of a formal , or even

Central London Property Trust Ltd V High Trees House Ltd [1947] (appendix 1a.1.1e, p40)

implied contract.

6 Quasi contracts are obligations imposed

by law to avoid injustice

Callano v Oakwood Park Homes Corp (1966) (appendix 1a.1.1f, p41)

7 Simple contract is any contract other than

a formal contract

8 Specialty contract is under seal contract

9 Standard form the standard document

prepared by many large organizations and

setting out the terms on which they

contract with their customers

Labor contract ( appendix 1a.1.1i, p41)

1a.1.3 SITUATIONS TO ENTER INTO A CONTRACT WITH SOMEONE

You enter into a contract with someone when you open an account in a bank,

when you hire a flat and when you borrow money from someone

1a.2 TYPES OF BUSINESS AGREEMENT

1a.2.1 AGREEMENT

Agreement exists when an offeror makes an offer to an offeree that is accepted

by the offeree Agreement which is the first requirement for a valid contract

contains an ‘offer’ and an ‘acceptance’

Offer is a definite promise to be bound on specific terms and acceptance is the

unqualified agreement to the terms of the offeror Both offer and acceptance are important because they are a useful technique for the courts in assessing at whatpoint an agreement should be binding If there is missing one of them, the agreement does not exist and then the contract is invalid

Applying to the case to open an account in a bank, you make an agreement with the bank about amount of the loan, repayment terms, and insurance against non-payment and so on

1a.2.2 EXAMPLES OF TYPES OF BUSINESS AGREEMENT

There are many kinds of business agreement like employment contract, franchising contract or renting a property Taking a case example for renting a property contract (appendix 1a.2.2, p… ), the offeror is San Miguel House and renter is the offeree for the terms of security deposit, general policies, care and maintenance and so on

1a.3 THE IMPORTANCE OF KEY ELEMENTS IN A CONTRACT

1a.3.1 THE ESSENTIAL ELEMENTS TO FORM A CONTRACT

Agreement, consideration and intention to create legal relations are three

essential elements for forming a contract Following that, agreement is formed when the offer is accepted and consideration which is an exchange of value must be real, legal and inadequate Intention to create legal relations means

the parties entering into a contract must have an intention to create a legal relationship

Besides, there are validity factors affecting on making a binding contracts The

first one is form which states a contract may be in any form (written or oral) and then a genuine consent means the validity of a contract can be affected if a person has been mislead into a contract Capacity says the parties must be legally capable of entering into a contract and the content of a contract must be complete and precise in its terms and legality means the purpose of the

agreement must not be illegal or contrary to public policies

1a.3.2 EFFECT OF CONTRACT WHEN KEY ELEMENTS ARE ABSENT

In order to be valid and enforceable by the law, a contract must contain these

essential elements; otherwise there is no contract, but the legal effect of contracts falls into 4 categories: valid, void, voidable or unenforceable

contracts

1a.3.3 EFFECT ON AFFECTED PARTIES

Vitiating factors which make a contract void or voidable are mistake, misrepresentation, duress, undue influence and public policy Following that,

with a void contract, there is no legal effect at any time: neither party can obtain rights or obligations under it, while a voidable contract is valid unless and until it is avoided Besides, an unenforceable contract is one which is

valid but which cannot be enforced by either of the parties should something go wrong

By giving case examples to support the explanation of the different types of business agreement and the importance of the key elements required for the formation of a valid contract, this part provides a basic understanding about business contract

1b ANALYSIS OF THE SCENARIO FROM THE PERSPECTIVE OF THE LAW OF CONTRACT AND APPLICATION OF OFFER AND ACCEPTANCE’S RULES IN A GIVEN SCENARIO AND THE IMPACT OF NEW TECHNOLOGY

1b.1 ONLINE TRANSACTION

According to formation and validity of contracts under s.11 of the Electronic

Transaction Act Cap 88, an offer and the acceptance may be expressed by means of

electronic communications Case example: Chwee Kin Keong v Digilandmall Pte Ltd

(appendix 1b.1, p….)

Also, considered as the effectiveness of contract between parties on an electroniccommunication, a declaration of intent or other statement shall not be denied legaleffect, validity or enforceability

Besides, the webside that contains the details and the prices of the goods is confirmed

as an invitation to treat based on s.14 Invitation to make offer under the Electronic

Transactions Act, Caps 88

Based on the case scenario, there was an error in electronic communications and

following that selling Iphone4 of M5 was an invitation to treat Nevertheless, Winslowoffered and M5 got benefits from that which is considered as an acceptance, so betweenWinslow and M5, there was an agreement that made the contract binding.

1b.2 DEFENCE AGAINST WINSLOW

If M5 failed to deliver iphones to Winslow, he would breach the contract because

there was a valid contract between M5 and Winslow However, being an owner of ahandphone shop, he knows M5’s mistake in the price (only $ 588) which should have

been $ 1,180 Therefore, Winslow violated the contract by taking advantage from

M5’s mistake.

The iphone price was changed due to M5’s mistake; they did not know this changing

So according to the unilateral mistake rule, the contract is void and is not bound of

this online transaction Therefore, M5 does not have to deliver iphones to Winslow

Case example: Taylor v Johnson (1983) (appendix 1b.2, p… )

1b.3 DEFENCE AGAINST CHARLENE

M5 will breach the contract if they do not deliver the set of handphone to Charlene, the university student Following that M5 defense is weaker than Charlene The reason is that there is a valid contract between M5 and Charlene Moreover, M5 does not know about their mistake for the iphone price and Charlene, a university student also has no idea about this mistake Therefore, there is a common mistake in this case that keeps the contract valid and M5 has to buy the iphone to Charlene Case

example: Leaf v International Galleries (1950) (appendix 1b.3, p )

1b.4 HOW TO PREVENT A SIMILAR INCIDENT FROM HAPPENING AGAIN

transaction, M5 should reply that transaction is in processing and it depends on available goods condition and others With this method, M5 could void mistake by using available good condition to reply their customers after they already confirm the transaction.

1c ASSESSION FOR THE IMPORTANCE OF THE RULES OF INTENTION AND CONSIDERATION OF THE PARTIES TO THE AGREEMENT

1c.1 The importance of intention

The requirement of intention to create legal relations in contract law is to sift out the

cases and to identify a binding contract as an essential element of a contract’sformation In order to determine which agreements are legally binding and have an

intention to create legal relations, the law draws a distinction between domestic

arrangements and commercial agreements.

1c.2 The importance of consideration

The essence of a valid contract is also the idea of the ‘exchange of value’ between

parties when each side receives something from the other Therefore, the rule of

consideration is that it must be sufficient, must not be past but need not be adequate,

because past consideration means there is no contract Based on that, consideration is

divided into two kinds including executory and executed consideration When there is

an exchange of promise to perform acts in the future, consideration is called

‘executory’ and when the act performance is completed, it is ‘executed’ consideration

1c.3 Mr Winslow V Mrs Winslow

According to Domestic Arrangements between husband and wife, in Winslow’s case,

there was no intention to create legal relations Case example: Balfour v Balfour [1919] (appendix 1c.3.1, p… )

However, as far as the property matters are concerned, between Mr and Mrs Winslowthere is an existence of a legal intention, so there is a valid contract Case example :

Merritt v Merritt [1970] (appendix 1c.3.2, p… ) In short, there is a valid contract

between Mr and Mrs Winslow

1c.4 Legal intention for a room rental contract

It is presumed in commercial agreement that there is a intention to create legal relation

by both parties Case example: Edwards v Skyways [1964] (appendix 1c.4, p……)

In the given case, between Mrs Winslow and Coco, there was a legal sufficiency ofconsideration because Mrs Winslow got benefit renting out the room to Coco to keep

up her monthly payment to the bank Besides, there was also an adequacy ofconsideration which was proven by the agreement of Coco with the rent of £150 percalendar month Therefore, a binding contract was created

After Coco had voluntarily installed new air con and changed the wardrobe, Mrs.Winslow promised to reduce the rent by £50 per month and at this time the promise

was made after performance, so past consideration existed Based on the rule, there

was no consideration in the case that means Mrs Winslow’s promise will not be

enforced at law Case example: Roscorla v Thomas (1842) (Appendix 1c.4, p )

sach Trang p 303

1c.5 Seeking to increase rent

In existing contract, Coco had to pay £150 per month for rent to Mrs Winslow, butnow Mrs Winslow is seeking to increase rent to £200 per month when there is an

existing contract According to the unsupported fresh consideration rule, increasing

to £200 is a further promise which makes no contract arise Hence, Coco does not have

to pay extra money for the rent

Besides, based on mirror image rule which says acceptance must match exactly with

the offer to make an agreement, while there was a modification in this case at the timethe contract is existing For that reason, Mrs Winslow was not entitled to increase ordecrease the rent and also if Coco does not pay the exact amount of rent in existingcontract, she could be sued by Mrs Winslow

1d THE IMPORTANCE OF THE CONTRACTING PARTIES HAVING THE

APPROPRIATE LEGAL CAPACITY TO ENTER A MINOR AND ANOTHER PARTY 1d.1 Different groups of contracts between a minor and another party

Three different main groups of contracts between a minor and another party include

valid contract, voidable contract and unenforceable contract.

The only contracts which are binding on a minor are contracts for supply of necessary

goods and services (case example: Chapple v Cooper (1844) (appendix 1d.1, p….)) and service contract for minor’s benefit (case example: Roberts v Gray (1913)

(appendix 1d.1, p…)) However, if the minor sets himself up in business, he will not

be bound by his trading contracts, even though they are for his benefit

The contracts with minors could be voidable if they relate to leases of land,

partnerships and purchase of shares At these situations, these contract are valid whenthey are made, but can be terminated by a minor at any time before becoming 18

Case example: Corpe v Overton (1833) (appendix 1d.1, p……….)

All other contracts entered into by a minor are described as unenforceable, which

means the minor is not bound but the other party is bound

1d.2 Betting contract

Between Benny and bookmaker, there is a void contract and applying Act No.7, 2004National Gambling Act, 2004 (s12), a minor must not engage in, conduct or make available gambling activity Applying rule of gambling act, all the betting with minor

is void Case example: Mercantile Union v Ball (1937) (appendix 1d.2.1, p ).

Under common law and gambling act 2004, it is a void contract for Benny to enter the William Hill Betting PLC and placed a bet That means the contract can be

enforced if Benny ratifies it within a reasonable time after turning 18 Based on that, Benny will receive nothing even his capital from this betting, because of the void contract between Benny and the bookmaker

1d.3 Shares contract

Purchasing share is a legal activity for Benny and there is a difference betweenpurchasing share which involves a permanent or continuous interest, while gamblinginvolves intermediate benefits or risks Based on that, it is a voidable contract forBenny and unenforceable contract for the stockbrokers

Applying the rule of voidable contract, the contract is binding on Benny until hedecides to reject it before becoming 18 In other words, if Benny repudiates thecontract at presence, he will receive nothing of value in return Case example:

Steinberg v Scala (1923) (appendix 1d.3, p )

Applying the rule of unenforceable contract, the stockbrokers are bound at law butBenny was not Therefore, the stockbrokers cannot force Benny to pay up for theprice of share, on the other hand Benny is able to sue the stockbroker on the contractfor the lack of payment it he sells the shares Based on that, it is likely for Benny toenforce the contract

Because of voidable contract on Benny and unenforceable contract on stockbrokers,Benny was not bound at law but he was entitled to sue stockbrokers to get his interestfor the shares if he really pays money for the share Actually Benny just phoned tostockbrokers to take in advance for the share, so he will not have rights to sue thestockbrokers

1d.4 Fake gold chain contract

According to the caveat emptor Latin for "let the buyer beware." The consumers are

at your own risk and should personally examine and test for obvious defects and imperfections of products they buy Applying this rule to the case, Thomas has responsibilities to check the quality of the gold chain Moreover, Benny intentionally provides Thomas with fake gold chain which is misrepresentation Thomas still has topay Benny with this fake golden chain However, he could sue Benny if he could prove that Benny continues buying fake golden chain In this first time, Benny is not bound at law, but in the other time, he would be responsible for this trade

2a SPECIFIC CONTRACT TERMS WITH REFERENCE TO THEIR

IMPORTANCE AND IMPACT OF THESE TERMS

2a.1 Terms of existing contract

The terms of a contract describe the duty and obligations that each party assumes under their agreement In the case of Winslow and Cindy, there are two existing terms and both of them are express term Express term is a clear stipulation in the contract and it

is classified as conditions- terms that are crucial to the operation of a contract; or warranties – terms that are less important While implied terms may be divided by: custom, the Courts or the Statute

For these reasons, contracts that contain restraint of trade clauses will be void unless they are reasonable and in the public interest Following that, the court will examine theclause in regard to the type of trade or business Besides, remedies are the legal means

of correcting loss and damage

2a.2 Restraint of trade and remedies

There is a possibility to have exclusive agreement to give attention to restraint trade in

order to protect Cindy’s interest Case example Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co (1894) (appendix 2a.2, p )

The restraints of trade will be valid if they are reasonable According to the test ofreasonableness (s.11), restraint clause in a contract is accepted if it involves aconsideration of the interests of the parties Besides, the court will consider whethercustomers could have been entered into similar contract with another party withoutagreeing the first claim If Winslow terminates the contract, Cindy will have to sufferfrom lost of sale which leads to loss of profits Therefore, with the recovery action asremedy, Cindy use this clause

To make it reasonable and fair for Winslow to meet the clause 1, Winslow needs to get benefits in price or quality of service However, Winslow does not receive any benefits from the agreement with this clause in which Cindy does not undertake as to quality of the materials used and good workmanship

Because of these reasons, the restraint of trade is unreasonable which leads to be void

in the contract and it is unlikely to be valid, so Cindy has no rights to prevent Winslow from buying elsewhere

2a.3 Exemption clause

The term for exemption clause is the express term which is condition Applying sale of

Goods Act 1979, s.13 (1), s.14(2) and s.14(3), the contract for sale of goods cannot exclude liability for breach of condition relating to quality, while the second of clause claims in no undertaken the liability for service quality and this is unreasonable term.Also applying UTCA act, Avoidance of liability for breach of contract s.3(a), Cindy fails

to perform the condition term in the contract which does not allow Cindy to restrict her liability for her own breach of condition

Based on the analysis, Winslow did not breach the contract to go on another contract

because the exemption clauses are unlikely to be successful and Cindy has to suffer from all loss

2b Standard form contract (labor contract)

2b.1 Definition of standard form contract

Standard form contract is the standard document prepared by many large organizations and setting out the terms on which they contract with their customers

2b.2 The validity of labor contract

This is a valid contract between the offeror_ Van Laack Asia Co., Ltd whose

representative is Ms Kim Thu Huong and the offeree: Truong Minh Tuyen The

contract is formed with the agreement between the employee and the employe The offer is to provide a job and the acceptance is to get the job with the sign of the

contract

2b.3 Express term

In the eye of common law, express term is divided into two categories: conditions and warranties

agreement Following that, the condition terms limit the scope of employees in which it claims the requirements for employees

Breach of conditions

 Assuming that employer cannot fulfill his job undertaken of thiscontract, such as fail to comply production and business orders,cause a damage or loss properties due to his carelessness, negligence

2b.3.2 Warranty

Warranty is a term that is subsidiary to the main purpose of the agreement In this contract, warranty appears to be uniform, salary, bonus, training However, all the information in these terms is unclear in which the bonus is according to

Breach of warranty

 In an assumption of the company faces a loss in their earnings so itcannot pay employee enough salary on time (for example, thecompany only pays 50 USD instead of 53.50 USD) At that time,TUYEN only has the right to claim for his damages caused by thecompany, such as asks for compensation He does not have the right

to terminate the contract

 In the case that employee has a health problem and he needs thehealth insurance from the company, if the company refuses to payinsurance for TUYEN, he can claim for the financial damagescaused by the company But he cannot breach the contract because

of this insurance problem

2b.4 Implied terms

Terms in the contract are implied by statue: labor law and regulations In Rightand benefits of employee, “Time of rest: According to the Company’s LaborRegulation and current labor regulations.” Applying the Working TimeRegulations 1998, regulation 10, a worker is entitled to a rest period of 11consecutive hours rest in each 24 hour period during which he works for hisemployer

2b.5 Exemption clause

Exemption clause: “Compensate to the Company all training expenses and/ormonetary commitment mentioned in the Labor contract and/or in laborregulations of the Company in the case the Employee intentionally terminatesthe Labor contract without approval of the director of the Company.” According

to The contra proferentem rule, the term is vague because it’s hard to define whether the employee intentionally or not The court has to consider the others

are subject to a test of reasonableness under UCTA 1977 rules (s.11) to makedecision

2b.6 Main purpose rule

The main purpose of the contract is to hire employee In the Obligation of

Employee section, the term “employee shall compensate for damage or loss

properties incurred by the Company due to carelessness, negligence or stolen” isinconsistent with the purpose of the contract Applying main purpose rule, thecourt can strike out this exemption clause

2b.7 Fundamental breach

Fundamental breach occurs when there is a failure to perform the contract In

this contract, the job requirements are not clear, which lead to vague offer and it

is difficult for the seller_ employees to meet the particular requirements of the

company This can be easy to get fundamental breach of the contract

2b.8 Unfair Contract Terms Act 1977

UTCA 1977 uses two techniques for controlling exclusion clauses: some types

of clauses are void and test of reasonableness

2c EFFECT OF EXEMPTION CLAUSES IN ATTEMPTING TO EXCLUDE

CONTRACTUAL LIABILITY

2c.1 Exclusion clause

Exclusion clause is a clause which seeks to release one of the parties from liabilities Torely on clause, the person must consider whether the clause is incorporated in which they must show the terms were incorporated into the agreement between the parties when the agreement is formed It forms part of the contract and is incorporated by signature, notice and a course of dealing The clause is also interpreted vagueness against the person at fault so that the meaning of the clause is determined, which is basedon the contra proferentem rule The clauses are also tested under UTCA Act

1977 and UTCCR 1999 which restrict and control the clause’s scope

2c.2 Exclusion clause 1: Newport Service can accept no responsibility for any damage caused as a consequence of repairs carried out on these premises

The above exclusion clause was incorporated by notice Based on the rule of prior information, this notice is insufficient to be binding because Winslow recognized it after Winslow had entered

However, this clause is against the main purpose rule of the contract because this contract’s purpose is to repair Winslow’s car but Newport claimed not to be responsiblefor any damage caused as a consequence of repairs carried out Because of this, the court can strike out this exemption clause On the other hand, Newport also made

subsequent major damage which leads to fundamental breach (fail to perform the

contract altogether).(Case example: Karsales (Harrow) Ltd v Wallis [1956])

Furthermore, based on the Newport’s failure to perform the main purpose for the quality of service, Newport breached the condition of their contract, following that Winslow has rights to repudiate the contract and claim damages

Apply UTCA act 1977, avoidance of liability for negligence (s3), Newport cannot restrict liability for their fundamental breach and non performance

Also based on Sale and supply of goods (ss.6-7), Newport cannot restrict liability for their breach of condition relating to the quality of their service

Applying the test of reasonableness (s11), the court will consider this clause based on the satisfaction of the customers with his requirement and in this case, Newport fails to get this point Under UTCCR 1999, for Winslow, there was an inducement to use this service because it is much cheaper than Oldport and without agreeing to that term, Winslow may enter a similar contract

Besides, the clause was not contained in a contractual document because receipt only acknowledges payment leading that Winslow would not assume to contain contractual

terms (Case Parker v South Eastern Raiway co 1877) Therefore, the receipt is

insufficient

For these reasons, Newport cannot exclude their liability and Winslow is likely to be successful in his claim with Newport Service

2c.3 Exclusion clause 2: The exclusion clause of the Newport which claims ‘ these premises are dangerous Clients enter these premises at their own risk and Newport Service accepts no responsibility for any damage or injury sustain

The clause above was an unsigned document which was incorporated by notice The first condition for an exemption clause to be valid is that a reasonable person would

assume the clause to be part of contract (case example Causer v Browne 1952,p376)

Notice must be given before creating a contract and Winslow noticed the exclusion clause which proclaimed in large letter before he entered into Newport

For the court, the exemption clause should be in clear words on the front of any

document (case: Thornton v Shoe Lane Parking (1971)) and the Notice is a

contractual document with clear words

The notice contains no treat, no encouragement for customers to use service, so it will not make misrepresentation and reasonably the notice is sufficient (case: Curtis v Chemical cleaning co 1951) This leads to the notice will be bound at law

The exclusion clause was considered to be incorporated so applying rules for UCTA act1977; avoidance of liability for negligence (s2) on this exemption clause which is reasonable, Newport cannot exclude their liability for personal injury or death resulting from negligence of their employee

Therefore, Newport has to be responsible for Winslow’s severe injury caused by one of Newport employees negligently and Winslow could succeed in claiming for Newport’s responsibility with him

Contract law claims to be about enforcing obligations which the parties have voluntarily

assumed Considered as an important role in business and daily activities, law of contract is a good reference for people who have concern in this field With the providing the knowledge in formation of a contract, I give basic concepts as well as essential factors to form a contract Besides, I also use a lot of rules and legal provisions in different acts including UTCA 1977, UTCCR 1999 to apply with the claims of Winslow and have recommendations for his cases By writing this report, I have improved my knowledge about law of contract as well as practical experience for each claim in the current report This report and context and requirements of common law helped me to increase my skills in analyzing logically based on recognized and legal information