Category : Articles
Case Study 1
In this case study, John is not legally bonded to sell his property to both Adam and Bill. Thus, the transaction between John and Charles is valid.
Principle of Acceptance
In this case study, John offered to sell his house at $2 million dollars. Adam offers to buy the house for $1.8 million dollars and John said nothing to this transaction. According to the principles of acceptance, an acceptance must be positive and not passive. Meaning to say, the party accepting the contract must actively accept the offer. Offeror is not allowed to impose acceptance merely because the offeree does not reject the offer. In this scenario, John remained silent. In the principles of acceptance it was stated clearly that silence does not constitute acceptance. Hence, Adam wanting to take legal action against John will not be valid, as there is no form of accepted offer either by writing or orally. (Felthouse v bindley 1862)
A silent agreement is only agreeable when both parties have agreed that the offeree??™s silence is to be construed as his acceptance. And for this to be effective, both parties must agree to it. In this case, John did not agree that being silent means acknowledging this contract. (Souter ocean ship building V Deutsche bank AG 1993)
Subject to Contract
In Bill??™s case, Bill offer to pay $2 million dollars for the property which is the amount John has been targeting for. However, Bill mentioned that the transaction to be ???subject to contract??? and John agrees to it. To be subjected to a contract means that both parties is agreeable to the terms of the offer but propose that both parties negotiate a formal contract on the basis of the offer. According to the case Yap Eng Thong V Faber Union, the court found that the agreement to sell the house subjected to contract was not binding. Thus, making negotiations to ???subject to contract??? is a very useful tool to make sure that everyone is only bound to the contract when they sign up and not before. (Yap Eng Thong V Faber Union)
Conclusion for Case study 1
To conclude case study 1, John is legally permitted to sell his house to Charles. Both Adam and Bill??™s legal action against John are not valid. Silence cannot be taken as consent, unless both parties agree that John being silent is agreement and acknowledgement to this contract. In the principles of acceptance it was stated clearly that silence does not constitute acceptance. Thus Adam is unable to take legal action against John. In Bill??™s case, the ???subject to contract??? agreement comes into place. John has the free will to sell his house to any one as long as a formal contract has not been set up between John and Bill. ???Subject to contract??? is not binding.
Case study 2:
Tort of Negligence
In this case study, Alice??™s 82 year old mother died of heart attack due to the fact that the dogs own by Peter attempted to inflict damage to Alice and her mother. Although both women suffered no physical injuries from the dogs, Alice??™s mother died of heart attack as a result of her shock.
Under the law of Tort, a Tort is a civil wrong. Such wrongs may include negligence, nuisance and defamation. The law of Torts represents the means whereby individuals may protect their private interests and obtain compensation from those who violate them.
Duty of Care
For Alice??™s case, we can conclude that this is a Tort of Negligence on the part of Peter. In the duty of care, it is a legal obligation imposed on an individual which requires them to adhere to a standard of reasonable care during when they perform any acts that could foreseeably harm others. In this scenario, Peter did not adhere to this rule by not locking his gate with dangerous pets as well as not keeping his pets under proper control.
Underlying the concept of duty of care is the ???neighbor principle???. Our neighbor in law will be any person who are so closely and directly affected by ones act that one ought reasonable to have them in contemplation as long as so affected when one am directing his or her mind to the acts or omissions that are called in questions. In law, we should not injure our neighbors. And in this case, Peter??™s dog, although not physically but still have cause the death of a neighbor, is guilty of not providing duty of care to his neighbors. Hence, Peter has breached the first essential among the three for Alice to be successful in suing Peter for an action of Tort. (Donoghue V Stevenson)
Breach of duty
A Breach of duty is not restricted to any professionals or persons under written or oral contact. All members of society have a duty to exercise reasonable care towards others and their property. A breach of duty must be settled and tested, when the defendant who knowingly expose the claimant to a substantial risk of loss, breach his duty. A defendant who fail to realize the substantial risk of loss to the claimant, which any reasonable person in the same situation would clearly have realized, also breach the duty. For Peter??™s case, he seemingly breached the second condition, in which he clearly know that not locking the lock to his gate could result in the escape of his pets. In this scenario, allowing an exit for the dogs to head out of the house to do damage to the public. (Birmingham V Waterworks)
The third requirement of the Tort of Negligence will be the Damage element, in which the plaintiff must show that he suffered damage as a result of the defendant??™s breach. There are two aspects to be considered and they are the Causation and Remoteness factor.
A common test use to determine causation is the ???but for??? test. According to this test, the plantiff would not have suffered from damage ???but for??? a certain event that caused the damage. In this scenario, Alice??™s mother would not have suffered an heart attack if not for the dogs that came out of the unlocked gate.
Locking a gate is a simply thing to do. Using the Reasonable Foreseeability test, Peter should have foreseen that the unlock gate could serve as an exit for the dogs. It is clear that if Peter have foreseen this happening and prevented the risk, then it must be followed that the appellants are liable in damages. (The wagon Mound No 2 1967)
Conclusion for Case study 2
To conclude case study 2, Alice legal action against Peter is valid. Base on the Tort of Negligence which comprises three parts. The duty of care in which Peter did not take into considerations the neighbor principle. Peter knowing the danger of his dogs, did not lock up his gate signifies that he did not provide his duty of care to his neighbors. A breach of duty must be settled and tested, when Peter who knowingly expose his neighbors to a substantial risk of loss, breached his duty. And the third and last factor to consider for the Tort of Negligence is the Damage element, in which consist of the Causation and Remoteness factors. Alice??™s mother would not have died if not for the event that happened after Peter failed to lock his gate speaks for the causation factor. The Reasonable Foreseeability test also put Peter in the spot, since locking the gate if you have dangerous pets is a common and simple thing to do, and yet Peter failed to do so.