Issue: Whether Marie and Lame Duck entered into any contract?

Issue:

Whether Marie and lame Duck entered into any contract?

Law:

Valid contract between two or more parties consist agreement, and valid agreement includes offer, acceptance, intention to create legal relations, and consideration. In other words, essential elements must be present be present for making the contract valid. These essential elements are stated below:

• Offer is considered as communication through which one party make promise to the other party to do something or refrain from doing something if other party does something or refrain from doing something. It is not necessary that offer can be made to single person only, but it can be made to the world at large. It must be noted that there is difference between invitation to deal and offer, and this difference can be understood through case law Pharmaceutical Society of Great Britain v Boots, Court of Appeal [1953] 1 QB 401; [1953] EWCA Civ 6; [1953] 1 All ER 482, [1953] 2 WLR 427[1].
• Other essential element of contract is acceptance, and it is considered as statement through which offer given by offeror is accepted by offeree. It can be understood through case law Crown v Clarke, (1927) 40 CLR 227[2].
• Consideration is considered as most important element of contract, and it is the price which is demand by the offeror in lieu of offer directed to offeree. In other words, it is considered as price for promise.
• Intention to create legal relations must be present to form valid contract at the time when parties entered into contract. In other words, parties while entering into contract must intended to create legal relations between them. Evidence related to this element is presence of consideration[3].

In this case, Lame Duck made offer through the quotation and such offer is accepted by Marie. Consideration and intention to create legal relations are also present in this case. Therefore, in this valid contract exists between the parties.

Conclusion:

Both Marie and Lam entered into valid contract.

Issue:

Whether mistake is occurred in the contract which exists between Marie and Lame Duck?

Law:

There are number of contracts which are affected by mistakes, and it is considered as complex area of contract law. Usually, it is not possible for arties to cancel or rectify the contract on the grounds of mistake. Contract cannot be cancelled even though mistake is occurred to some fundamental aspect of contract.

If only one party to the contract commit any mistake in relation to any element of the contract, but other party is not mistaken then such mistake is known as unilateral mistake. For unilateral mistake no remedy is stated by common law, but equity provides remedy for the same. Remedy provided by equity is subject to the condition that other party who has not being mistaken must conduct some action which is improper in nature. This can be understood like; party other than mistaken party must conduct any action which is not proper such as it restrict the ways through which another party known about their mistake. It must be noted that if unmistaken party involves in any misleading party then superior remedies are provided by Equity. However, in case of normal mistakes equity only provides actionable remedies such as remedy of rescission or rectification[4].

In this case, wrong quotation was send by Lame Duck to the Marie and Marie accepts that quotation. Contract between Lame Duck and Marie is affected by unilateral mistake, and mistake is occurred in relation to fundamental terms of the contract that is price of the contract. This can be understood through case law Smith v Hughes[5]. In this case, court decided that contract exists between the parties because both the parties intended to purchase and sell the oats but element related to meeting of minds was not present in this case. Exact results are not provided by this case, and this matter was also decided in case law Taylor v Johnson[6]. In this case, Court stated that if unmistaken party engaged in any improper conduct then mistaken party can rescind the contract.

Law: Valid contract requirements

However, in present case it is not possible for Lame Duck to rectify or rescind the contract because there is no unconscionable conduct on the part of Marie.

Conclusion:

Contract between Marie and lame Duck is affected from unilateral mistake, and it is not possible for Lame Duck to ignore its obligation on the basis of unilateral mistake.

Issue:

Whether Marie can seek remedies if Lame duck ignore and rejects its obligations under the contract?

Law:

It is possible for non-breaching party to terminate the contract, if other party breach the terms of the contract by not performing the contract. Non-breaching party has right to cancel the contract on the basis of below stated grounds:

• Breach of contract by party is of serious nature.
• Other party terminates the contract because party fails to fulfill its obligations stated under the contract.
• Contract included the terms which allowed the parties to discharge the contract in some specific situations.

Some remedies are provided by parties in case of breach of contract:

• Common law provides the remedy of damages, which are considered as substitute for performance. Damages are usually provided for the purpose of putting the plaintiff in the similar situation in which plaintiff would have been if contract was performed.
• On the other hand, common law also provides the remedy of specific performance, and under this Court issued an order for the purpose of directing the breaching party to perform its stated obligations under the contract. Court only order specific performance if damages are not the adequate remedy. However, it must be noted that this remedy is also provided in case of contract of personal services[7].

In this case, Marie can seek damages and specific performance, if Lame Duck breach the terms of the contract.

Conclusion:

Marie has right to seek damages and specific performance as remedy to the contract.

Issue:

Whether there is any tort of negligence?

Law:

If duty of care is owned by one person towards the another person and such person fails to perform his duty of care and such failure cause loss or injury to another person then such act of former person is considered as act of negligence. For the purpose of determining the act of negligence following factors are considered by the Court:

• Whether any duty of care is owned by defendant towards the plaintiff?
• Whether breach of duty of care is occurred?
• Whether such breach is occurred by the defendant?
• Because of such breach whether plaintiff suffered any damages or loss[8]?

In this case, the entire essential factors of negligence are satisfied which proved that tort of negligence is present:

• Duty of care is owned by Johnny towards the resident of the building.
• Johnny fails to take any reasonable care as he only drop letter of warning in the letter box of residents which cannot be considered reasonable standard of care.
• As breach of duty on part of Johnny cause injury to the resident of the building.

This can be understood through case law Donoghue v Stevenson 1932 AC 562[9]. In this case, all essential elements off negligence are present because of which Court held that manufacturer is liable towards the consumer for under tort of negligence. In the present case, also all essential factors related to negligence are present which prove that negligence is occurred.

Conclusion:

Tort of negligence is occurred in this case.

Issue:

Whether any liability of Johnny arise because of the negligence occurred by his gardener?

Law:

It must be noted that employer is vicariously liable for the acts of its employees, and this liability is occurred when person bears the liability of the negligent actions done by another person. as stated, this liability is generally bears by the employers for the acts of their employees,, and court impose liability on the employer for the negligent act of its employees. If following elements are present then only this liability is imposed on employer:

• Defendant and tortfeasor must share requisite relationship.
• Act committed by tortfeasor must fall in the scope of employment, and authority related to such act must be given by employer to employee.
• Whether there is any tortious conduct in the action of tortfeasor[10].

Application of the law

In this case, Gardener is the employee of the Johnny because of which Johnny is vicariously liable for the acts of the gardener. This matter was also discussed in case law Hollis v Vabu (2001) 207 CLR 21[11]. However, all the essential elements related to vicarious liability is present in this case:

• Gardener and Johnny share requisite relationship.
• Act committed by gardener is fall in the scope of employment, and authority related to such act must is given to gardener by Johnny.
• There is tortious conduct in the action of gardener.

Conclusion:

There is vicarious liability on Johnny for the act of gardener.

Issue:

What damages can be paid by Johnny to resident?

Law:

If plaintiff suffered injuries because of negligence on part of defendant then plaintiff has right to claim two types of damages and both the damages are stated below:

Special damages- generally, these damages are known as out of pocket expenses which include expenses related to medical treatment and other kind of similar expenses. It must be noted that it is easy to calculate these damages.

General damages- these damages include amount related to loss of earning capacity of plaintiff in future and other loss related to enjoyment. It must be noted that it is not easy to calculate these damages[12].

In this case, both general and special damages are paid by Johnny to the resident, and resident can seek claim related to following amounts:

• Plaintiff can seek special damages in lieu of medical expenses.
• Plaintiff can seek general damages in lieu of loss of holiday.

Conclusion:

Both medical expenses and amount related to loss of holiday is paid by the Johnny to the resident. 

References

ACL, Agreement, < https://www.australiancontractlaw.com/law/formation-agreement.html>, Accessed on 16^th September 2017.

ACL, Mistake, < https://www.australiancontractlaw.com/law/avoidance-mistake.html>, accessed on 16^th September 2017.

ACL, Remedies, < https://www.australiancontractlaw.com/law/remedies.html>, Accessed on 16^th September 2017.

Law Vision, The Law of Torts, < https://www.lawvision.com.au/uploads/PDFs/Tort%20Law%20.pdf>, Accessed on 16^th September 2017.

Uni Study Guides, Vicarious liability, < https://www.unistudyguides.com/wiki/Vicarious_liability>, Accessed on 16^th September 2017.

Hollis v Vabu (2001) 207 CLR 21.

Lawhand book 2017, Negligence, liability and damages, < https://www.lawhandbook.org.au/10_01_01_negligence_liability_and_damages/>, Accessed on 16^th September 2017.

Pharmaceutical Society of Great Britain v Boots, Court of Appeal [1953] 1 QB 401; [1953] EWCA Civ 6; [1953] 1 All ER 482, [1953] 2 WLR 427.

Crown v Clarke, (1927) 40 CLR 227.

Smith v Hughes, Court of Queen’s Bench [1871] LR 6 QB 597.

Taylor v Johnson (1983) 151 CLR 422.

Donoghue v Stevenson 1932 AC 562.