Contract Laws Consensual Theory

Question: Describe about the Contract Laws Consensual Theory. Answer: 1. The implied terms in fact tend to arise on the backing of either the common law or the contract laws consensual theory. These are inserted in by the court when it is necessary to insert these to ensure that the contract works as outlined in the judgement of the Equitable Life Assurance Society v Hyman (2002) 1 AC 408. However, these are also inserted when it is way too obvious to be present and also when the insertion of the term is customary in particular type of contracts. The above is in contrast with the term implied in law which are inserted to fill the gaps that exist in the given contract. These are inserted only when the contracting parties have not made any express agreement about a particular matter. Also, it is imperative that the underlying contract in which such an exercise is carried out is common enough for the court to clearly understand the contractual obligations arising. Besides, unlike implied terms in fact, these are inserted without considering the intention of contracting parties and also their consent is not sought for the same. 2. The relevant area of law applicable in this case is Contract Law. Asas in the given situation could make a legal case if it is able to prove the usage of economic duress by Classic. In order to establish the same, the following need to be established. There was pressure and as a result there was no choice left to the victim but to agree with the unreasonable demand of the defendant. The demand to be entertained through pressure was illegal and not in terms with the contract agreement in place. Further, it was only under pressure that the plaintiff actually agreed to comply with the demand and in the absence of the same would never have complied with the same. Presence of pressure specially in the form of contract breach which leads to contract execution. The above conditions are in line with the judgement of the DSDN Subsea Ltd. v Petroleum Geo-Services ASA [2000] BLR 530 case. Based on the given case facts, it is apparent that the economic duress is indeed present in the given case as the above mentioned legal requirements are fulfilled. Asas did not initially agree to pay the amount demanded of GBP 2 million as the same was illegal. However, in the event of non-payment, there was threat of breach of contract as the scheduled deadline would have been breached. Asas did not had any other option but to make the payment as the relief from court was not an option and the delay in the electrical works would have brought in huge losses for Asas. Asas eventually made the payment of GBP 2 million and executed the contract. The contract would be held void by the court, if the claim is successful. 3. The concept of burden of proof tends to highlight which party has to tender proof for what in the court of law. As a result, if a given party has to bear the proof, it implies it has to give evidence to as to establish the truth behind the claim made. While there are three types of burden, but in civil cases, legal burden is the significant variant. The rule governing burden of proof has been extended in the Honda Motor Co Ltd v David Silver Spares Ltd [2010] EWHC 1973 (Ch) [2010] FSR 40 case. This concept is exceptionally useful for the court to reach verdict in cases when the evidence provided by the parties involved is quite balanced. Additionally, it also provides useful directions to the parties involved in relation to what they need to prove and thus the parties could present their case based on this guidance. The parties know which points they need to prove and which to defend which leads to clarity and more chances of a just outcome without confusion. 4. Scenario A B Garage in Manchester The garage owes a duty to care to Adrian and also the other people that may be present in the proximity. This may be established by the application tripartite test.as advocated in the Caparo Industries plc v Dickman case. This is because, the damage caused to Juen was foreseeable and also it is fair for the law to establish such as relation. Clearly, since the tyre came off despite no extra load from Adrian, it indicates of possible negligence on the part of the garage which has led to direct damages to Juen. Hence, Juen could claim damages from the garage. However, for Pedro, the remoteness of damage needs to be ascertained. By applying the reasonable foreseeability test, it is apparent that the as the garage owner it is difficult to predict the damage caused to Pedro. Hence, in line with the judgement of the Overseas Tankship (UK) Ltd. v Morts Dock and Engineering Co. (The Wagon Mound (No.1) case, Pedro cannot claim damages from the garage. Adrian- Adrian owes a duty to care towards the pedestrians nearby and hence this extends to Juen and Pedro also. This may be established by the application tripartite test.as advocated in the Caparo Industries plc v Dickman case. This is because, the damage caused to Juen was foreseeable and also it is fair for the law to establish such as relation. In the given case, there is no information about any potential negligence while driving for Adrian. Hence, in relation to the wheel coming off, assuming no negligence has been undertaken by Adrian, Juen cannot claim any damages on account of negligence from Adrian as reasonable precautions were taken by him. However, in relation with Pedro, Adrian to some extent is responsible as he should not have grabbed Pedro by the neck and thrown him on the ground as this could potentially cause foreseeable damage. However, with regards to the damage caused by conduct of George, the principle of novus actus interveniens would be applicable. It is apparent that the chain of causation has been broken and hence Pedro can claim damages but to the extent of the damage suffered by direct assault from Adrian. George When Pedro fell near George, then he had the duty to care in accordance with the proximate relation and the tripartite test.as advocated in the Caparo Industries plc v Dickman case. However, the damage from Georges conduct was quite foreseeable considering that Pedro was already physically hurt by Adrian and hence was vulnerable. In such a scenario, George acted in a negligent manner and is directly responsible for the head injury sustained by Pedro. Hence, Pedro can claim damages from George for the severe head injury suffered. Scenario C Garage at Manchester Due to remoteness of the damage caused by Judith, the garage at Manchester could not be held liable for the damages caused to Pedro. Adrian The principle of novus actus interveniens would be applicable. It is apparent that the chain of causation has been broken and hence damages for the misconduct of Judith could not be claimed from Adrian by Pedro. George - The principle of novus actus interveniens would be applicable. It is apparent that the chain of causation has been broken and hence damages for the misconduct of Judith could not be claimed from George by Pedro. Judith Judith is a doctor and has a duty to care towards the patients as is apparent from the the tripartite test.as advocated in the Caparo Industries plc v Dickman case. It is apparent in the case that damage to Pedro due to negligence was foreseeable and also Judith was present in proximate relationship with Pedro. Clearly, being a doctor, conduct of Judith amounts to negligence which is directly responsible for severe brain damage suffered by Pedro which in absence of negligence by Judith could have been avoided, Hence, Judith would be liable to bear damages for the severe damage caused to Pedro on account of negligence. 5. The principles in relation to common duties of employer relating to safety and health are highlighted below. Duty of the employer to take reasonable measures for employees safety Applicable Case: English v Wilsons and Clyde Coal Co [1937] SC (HL) 46 Ensure that workers are provided with properly functioning machinery and appliances along with secure workplace and to maintain these on an ongoing basis Applicable Case: Latimer v. AEC LTD [1953] AC 643 Ensure that competent staff are hired who are safe to work with as lack of competency may trigger accidents and threaten safety of workers and workplaces. Applicable Case: Dusek v StormHarbour Securities LLP [2016] EWCA Civ 604 Ensure that system of work should be safe which refers to the physical layout and manner in which the work is performed. Applicable Case: General Cleaning Contractors v Christmas [1953] AC 180