11 Nov 2012

Essay Topic: Negligent Tort

Introduction

Negligent torts are the most important torts in contemporary law. Negligent torts do not only concern deliberate actions. Instead, they also occur when entities or people fail to act in a reasonable way to individuals they owe a duty to. The action of negligence found in such tort leads to monetary damages or personal injury. This concept of negligence is based on the principle that all persons have to exercise a certain degree of duty care in order to avoid harming others. Everyone has a responsibility of not only caring about the result of their willful actions, but also mind about injuries they occasion to other people by their desire for normal skill or care when managing their properties or other people. Negligence by itself is not a wrong act; what makes it to be legally wrong is the character that defines that act. This study will mainly focus on analysis of the concepts of negligent torts, duty of care, proximate causation, and the different types of available remedies for finding of negligent tort liability.

The concept of negligent tort is a major section of law in the legal system of United States of America. Some laws consider it a breach of a contract in which the legislation gives a remedy in monetary damages.  Additionally, when the law imposes a specific duty on a given individual, and enforces a duty of care to which every similarly situated people have to adhere to, and those people happen to breach that imposed duty, those people become liable when that breach causes injury. In the same manner, a negligent tort represents immoral that is caused by the failure of an actor in adhering to the duty of care that the law requires it to comply with under specific circumstances.  The duty of care that is imposed by law differs based on the relationship and the actions between the victim of the tort and the actor (Egteren & Smith, 2002).

Whereas various negligent torts have different elements based on the different jurisdiction, four essential elements must be proved to confirm the occurrence of a negligent tort: duty, resulting damages, breach, and causation.  In essence, a negligent tort is constituted when an individual owes a service or duty to a victim; the person that owes the specified duty has to violate the obligation or promise; that violation must cause an injury; and the causes of the injury should have been rationally foreseen because of the neglectful actions of that person.

According to Siliciano (1929), the terms of duty of care imposes certain duties and rights on contracting parties. The duty of care in negligence torts can be imposed explicitly or expressly. It defines the obligation of one individual to another. The duty of care binds humans to one another in the community and provides the front door in recovering incurred loss as a result of negligent torts: all claims of negligence have to go through the “duty portal” connecting the scope of recovery of negligent torts with harms from accidents.

Proximate causation exists in negligent torts when the plaintiff suffers injury because of natural conducts of negligence. The only form of remedy available for finding of tort liability is to ensure the plaintiff establishes both the proximate cause and negligence. It is usually not required for liability that the negligence of the defendant to be the last proximate cause of a particular injury. Various types of remedies are available for finding of tort liability: when the plaintiff’s injury has numerous proximate causes, when causes of the injury occur at the same time, or when the causes of the injury of the plaintiff occur in combination (Mallor, Barnes, Bowers & Langvardt, 2010).

In conclusion, negligent torts are product of people failing to do what is expected of them thus resulting in loss or injury, or doing what they are supposed to do in a worn way that causes loss or injury. Elements such as duty of care, and proximate causation are necessary to determine a negligence tort. In settling disputes arising from this tort, several remedies such as compensation are necessary.

References

Egteren, V.H., Smith, R.T. (2002). “Environmental regulations under simple negligence or strict liability.” Environmental and Resource Economics, 21(4), 367-396.

Mallor, J.P., Barnes, A.J., Bowers, T., & Langvardt, A.W. (2010). Business Law: The ethical, global,and ecommerce environment (14th ed.). New York : Irwin/McGraw Hill. ISBN: 978-0-07-337764-3.

Michael, R & Koenig, T. (2005). “Tort of Negligent Enablement of Cybercrime.” Environmental and Research Journal, 15(3), 45-67.

Siliciano, J. A. (1929). “Negligent Accounting and the Limits of Instrumental Tort Reform.” Hein Journal, 30(4), 56-61.

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23 Jan 2010

Sample Essay: Human Right

Overall context of the differences

Unfair Contact Terms Act 1977 is focusing on negligence of several things which include negligence of any obligation which may arise from the express terms or implied terms based on the contract. When given an obligation to take care of, an individual is expected to take at most logical care in his obligation or they should exercise sensible skill in the presentation of the contracts given to them.

The other negligence that this act is based on is the negligence of any common law duty so as to take sound care during the handling of the contract or they may exercise realistic skill. This was created to help avoid stricter motives[1]. The last major section about the part one of this Unfair Contract Terms Act is that, negligence should also come in at the level of the common duty provided to an individual. It requires that common duty should be done at the level imposed by the Occupiers Liability Act.

On the other hand The Unfair Terms in Consumer regulations of the 1999 deals with the regulations of the unfair terms conducted in contracts that have been accomplished amid a retailer and a dealer or a dealer and a customer but the regulations are not applying to contractual terms[2]. The contractual terms reflect that there should be obligatory statutory or authoritarian provisions which include provisions which are under the law in Community legislation. It also reflects on the necessities and principles of global conferences in which the Community are party. [3]

The Unfair and Negligence Acts

The Unfair Contract Terms Act of 1977 has a clause on negligence legal responsibility where it states that a person cannot eliminate or limit his liability for a personal injury in consequential of negligence from positions resulting from any agreement terms. The negligence also comes in the case of loss or damage where an individual cannot keep out his liability for the negligence, with the exception of the terms or notice that satisfies the requirement of sensibleness. The other is that when a contract term claim to confine liability for negligence, a person’s awareness of the act should not to be taken as showing his voluntary approval of any risk. While the Unfair Terms in Consumer Regulations has a clause related to this known as unfair Terms,

It shows that contractual tenure that has not been negotiated individually shall be seen as unfair since it is contrary to the good faith requirements. It therefore results in a major inequity in the parties’ civil liberties and responsibilities that arise under the contract to the disadvantage of the consumer[4]. The negligence clause also states that a term will be viewed as not having been discussed independently when it has been created prior the consumers knowledge and therefore not been able to have an influence in the substance of the term.

The fact that the contract was negotiated alone in the absence of the consumer is a fact that will lead to the full implementation of the regulations. Therefore they will apply it to the rest of the agreement, if a general judgment is done it will indicates that it is a pre-structured standard agreement. It is therefore necessary for any seller or supplier who agues that a term was independently agreed to illustrate and indicate it was not so as to continue with the contract. The regulation encloses indicative items which are regarded as unfair.

Liability and Assessment of Unfair Terms

The Unfair Terms in Consumer Regulations engages itself deep into assessment of unfair terms without prejudice to directives. This assessment will take into account the form of the goods or services that the contract concluded referred to at the time of conclusion of its conclusion. It will also look at the circumstances that were present at the time of termination of the contract or any other contract in which it was dependent. The assessment of fairness of the contract will not relate to the description of the main area under discussion of the contract or to the sufficiency of the cost or compensation, as in opposition to the goods or services given in exchange[5].

On the other hand liability arising in the contract provided for in the Unfair Contract Terms Act applies between the parties having the contract where one of them deals as customer or on the other person’s indicated conditions of business. Thus the consumer as being against the party, he cannot restrict any liability by reference to any contract term. If he does this he is in breach of the contract. The seller cannot also claim to be entitled to give an agreement considerably dissimilar from that which was realistically anticipated of him and also in admiration to any part of his contractual responsibility so as to give no performance at all except in any of the issues mentioned in this subsection so that the agreed term may please the necessity of being reasonable.

Indemnity clause and Choice of law clause

Indemnity which comes form the unfair contract terms stats that a person identified as a consumer cannot indemnify another person even in reference to any other contract terms, this is whether he is a party to the contract or not. It is provided in reverence with the liability that may have been incurred by the other party for the breach of contract, except when the term satisfies the requirement of the contract. The section provided will apply whether the liability in question is much directs to that that of the person who is going to be indemnified or whether the person is dealing as a consumer or dealing as somebody else.

On the other hand, when we take into account the choice of law clause of the unfair terms of the consumer contract regulation provided in 1999, we are told that a person selling or buying anything from the other shall ensure that any written conditions of a contract is provided for in direct and intelligible language. When there is doubt about the meaning of some of the written terms, the understanding which is most suitable to the consumer will take center stage.

In case of the existence of contract in the unfair terms concluded by a seller to the customer, the trader shall not be obligated to the customer and when it is fair the contract terms will continue to bind the parties only when it is capable of continuing to exist without the unfair terms[6]. The other section which corresponds to this the choice of law clause shows that regulations will pertain when it is notwithstanding any contract term. The contract terms asserts to relate the law of a non-member state where when the contract has a closer link with the border of the Member States.

The inequitable terms in customer contracts system, includes a clause on the considerations of complains by the director where it is stated that it is therefore the responsibility of the administrator to judge in great length any grievance addressed to him that any agreement term created up for a common use is unjust, only if the grievance appears to the Director to be a joker or on the other hand a qualifying body has notified the Director that it did agree to put the copy into consideration[7]. The director shall thus give reasons for his choice to apply or not to apply because the case can be an embargo under guidelines in relation to any grievance which the regulations may require him to consider. Deciding whether to apply for an injunction or not, the director may think that it is unfair if he believes that it suitable to do so. He may also have regards to any undertakings given to on behalf of any person so as to continue to use terms in contracts completed with consumers.

Consumer goods and sale on higher purchase

Unfair contract terms act provides guarantee of consumer goods. It specifies In the case of goods type that customarily supplied consumption for private use. Hence losses may arise from the goods proving to be defective while in consumers custody, others losses may result from the slackness of an individual concerned in the produce or in the distribution of these goods, liability on the other hand deals with losses or damages that cannot be barred by reference to any agreement s or notice enclosed in reference to a guarantee of the goods produced.

Under this clause, when a person uses some products, the goods are referred to as “in consumer use”, this can also be when the customer is in possession of the goods, these ideas are purposefully for doing business and it states that whatever thing in writing is an assurance that it has or imply to contain some promise or assurance. The defects will be finished as good by being complete or having partial replacement through repair or containing monetary compensation. The last section of this does not apply to be pursuance of which rights of possession of the goods was passed.

In relation to the unjust agreement terms, unfair terms in buyer agreement rules creates injunctions to prevent continued use of unfair terms. Injunctions can be applied by the director under the subject matter of a paragraph or any qualifying body or institution may apply for an injunction in this case it will include an interim injunction that may be put against any person who appears to the directive body as recommending the use of unfair terms drawn up for universal use in agreements finished with consumers[8].

In application for an injunction, a qualified body has to notify the Director of its intention to apply for it, at least fourteen days prior to the date in which the application is made. The injunction will begin the date in which the notification was given and then the director approves to the application being made within a shorter period. The court thereafter, regarding the request under such guidelines may grant an injunction on such terms only if it thinks fit. An injunction may at times relate to not only a particular contract term drawn up for all-purpose use but to any comparable terms or a term having like effects suggested for use by any person.

Further on, unfair contract terms act of 1977 has a clause on the sale and hire purchase which include liability for a violation of the duties that may arise from the transaction of Goods Act of 1979 which implies to the sellers undertakings as to title. Others in terms of the Supply of Goods cannot be excluded by reference to any contract term. The liability for a breach of obligation can be against a person who is acting as a consumer therefore these liabilities for breach of the obligation may arise from seller’s implied activities as to conformity of supplies with an account or sample fitness directed in a particular purpose.

The corresponding ideals in relation to hire-purchase cannot be eliminated or limited by orientation to any agreement term. The breach will also arise as being against a person handling the goods directly other than a person acting as consumer, the legal responsibility specified above are excluded or may be limited in orientation to a contract term that only in so far may satisfy the requirements of being reasonable.

In this section, the liabilities are not only the trade liabilities defined by section but include liabilities that may arise under any contract of hire-purchase accord[9]. The unjust terms in customer contract system on the other hand has a clause on the sale and hire-purchase, here the liability for the breach of obligations may arise from a seller implied undertaking in conjunction to the provided title and it further corresponds to things in relation to hire-purchase and thus cannot be restricted by suggestion to any contract term as against an individual dealing as consumer for violation of the obligations. The liabilities here are not only business liabilities also include those arising from any contract of sale of goods or the goods sold on a hire-purchase agreement.

Unfair terms in consumer protection act also bring in to account the powers of the directors and qualifying bodies so as to obtain documents and information. In this section, the director may exercise the power conferred to him by this regulation so as to facilitate his consideration of a complaint that the contract drawn up for the general use is unfair. The term also claims that whether a person has abide by the undertaking of the court order may exercise the authority conferred to him by this regulation so as to help him facilitate the consideration of a protest that a contract term written up for broad use is unfair and still, it will ascertain whether an individual has abide by the undertakings given to the project or to the court going after an application by that body[10].

Further on, a court order prepared on an application by that body as to the constant use of terms in contracts completed by consumers. On the other hand the Director may need any individual to provide to him a copy of any file which that person has recommended for use at the time of the notice. This can also happen when the qualifying body may require any person to supply information or suggestion for use the document provided. The power conferred will thus help to regulate a notice in writing which may be used to stipulate the method in which it is to be conformed with and also be revoked by a subsequent notice. Nothing in this guideline compels an individual to provide any information which he would be entitled to reject to create a civil trial before the court.

Unfair contract terms act of 1977 provides temporary provisions for sea carriage of passengers. This part applies to an agreement of passengers being carried across the sea including their luggage. In relation to this contract a person is not prohibited to the restricting liability for loss or damage. In other cases, a person is not barred from restricting liability for that loss or damage so far as the restriction would have been effective

This includes doing any of those things in relation to the liabilities in the previous sections. One of them is the Athens Convention which means that Athens Convention relate to the Carriage of Passengers and their Luggage by Sea and it is prescribed by means provided by the Secretary of State by regulations made by statutory instrument which contains the regulations that are subject to annulment in pursuance of a resolution of either House of Parliament[11].

Before the year 1977, there were few laws regulating the relationship of suppliers or sellers and consumers and there was a distinct lack of adequate legal framework to shield the consumer from exploitation by the seller in the normal course of exchange. These laws saw a new era in commerce where consumers who felt that prices charged for various goods and services were exploitative could institute legal measures to cause remedy where they feel that they were unfairly charged for the same.

The Unfair contract act was enacted by the British parliament in 1977 as way of regulating various contracts by limiting the extent and indeed the legality of various terms used in the contractual process. It is mostly used to disallow the avoidance of liability by businesses while trading their goods and services to consumers. The act nullifies terms seeking to avoid liability by inserting disclaimers in the contract which in their very nature can be deemed to be unreasonable or aimed at causing harm to a consumer[12]. This act is only enforceable where one of the contracting parties is a consumer and the other is in the course of doing business and liability is only exempted if it can be proved that the plaintiff was not a consumer.

The Unfair Contract Terms Act 1977 on the other hand was a bill passed in 1999 and makes ineffective various terms in a contract that are deemed to be unfair to the consumer.

The criteria for determining what may be considered unfair is based on analyzing whether the contact was negotiated by both parties in person, whether it leads to one parties rights being undermined and whether it contravenes the principle of good faith. The British Government (1999) asserted that where an unfair term has been proved, the implication of such a term shall not bind a consumer[13].

Different reasons leading to the enactment of the two bills

There are different reasons that led to the enactment of the two acts though in some cases they may seem to overlap. These acts were formed after several cases occurred where the common consumer suffered immense loss and failed to get compensation since the contacts one entered into was cleverly written to avoid liability. It becomes necessary therefore to examine some cases and by evaluating their implications see how the two acts differed in their motivation for formation.

Cases necessitating formation of the unfair contract act of 1977

There arose a constitutional problem when it became apparent that there was a need to protect consumers from harm or loss brought about by the negligence of sellers in the provision of services or the sale of goods. This problem emanated from the present constitution which called for a complete respect of contractual terms as entered to by willing parties. However, it came to light to educated legislators that there was inequality among such parties whereby some are more knowledgeable on matters regarding contracts and may use this knowledge to exploit the other[14]. This awareness was brought about by various incidences and cases that made it impossible to continue with the status quo and necessitate an amendment to the constitution to allow for the enactment of the unfair contract act.

In the notorious case of Thompson v London Midland and Scottish Railway (1930), an old and illiterate lady purchased a railway ticket which was printed the railway firm’s rules and terms of service. On this list of terms included one that asserted that the firm will not accept liability resulting from liability. As the train came to a stop it became apparent that it was too long to be level with the platform and this resulted to a big drop from the carriage the old woman was traveling and the floor. As the lady disembarked from the train she broke her leg and sued the firm for negligence but to the sheer amazement of all the court ruled in the favor of the railway firm. The court had argued that the lady though illiterate had the freedom to choose not to travel with the train .This case led the country to believe that some form of governmental intervention was necessary.

Differences in the application of the two acts

The two acts may overlap in some cases but in majority of instances they are applied separately. This is clear as we have realized in our evaluations of the differences between the two acts. In this case we seek to evaluate actual cases and how these cases called for the evocation of either the unfair contracts act or the unfair terms in consumer regulation.

Cases where involving the application of the unfair contract act of 1977

In 1990 Judge Baker made a landmark ruling granting Albany’s council.3 million pounds against UCL Software Company in the case Albany council vs. International computer limited. The council had contracted the company to design a computer to facilitate for the fast and efficient of a new tax being introduced. The ICL contract stipulated that liability owing from any fault cannot exceed the charge of the contracted item or 100,000 pounds whichever is bigger. The company delivered a product which was defective and the council took the firm to court seeking 1.3 million in damages under the unfair contract act[15]. The judged awarded the council 1.3 million in damages citing the unfair contract act that invalidated the liability clause in the firm’s contract .

Cases involving the application of unfair terms in consumer regulations 1999

In 18th December 2003, a member of public filed a civil proceeding against Tesco.net alleging unfair contract terms and he based the validity of his case under The Unfair Terms in Consumer Regulations act. The firm had a clause stating that it could terminate its services at whichever time it saw fit and the court considered this unfair since it allowed the supplier to terminate his services without possibly informing the client in good time of his intentions. Tesco therefore had to agree to delete the affected paragraph

Differences between the Unfair Contract Act 1977 and the Unfair Terms in Consumer Regulations 1999

The unfair contract act 1997 deals specifically with contracts that involve consumers and businesses. The act defines a consumer as any `natural person’ who is not in pursuit of a normal course of business. On the other hand the phrase `natural person’ indicates that only people, not businesses, can benefit from unfair terms of trade. There is, therefore, a difference between the meanings of the term `consumer’ for unfair contract terms act’s purposes and for unfair terms of consumer regulations act’s purposes[16].

It is likely that there would be a great numeral of cases in which whether an individual was a `customer or not would be decided the same way for both unjust agreement act and inequitable terms in consumer regulations act; but there are cases where it would be different. For instance, in the unfair terms in consumer regulations act, a person who purchases goods at an auction is classified as not being a consumer. However, there is no provision in the unfair terms of consumer regulation that prevents a person buying goods from being a consumer.

Second, unfair terms of consumer regulation act contract not only with barring clauses, but any other `unjust term.

An unfair term is any clause that imbalances rights and obligations significantly causing harm to a consumer. Like the unfair contracts act’s notion of `reasonableness’, `unfair’ is not defined, but it provides guidelines. The unfair contracts act does not forbid a contract containing terms that allow one party to vary its obligations. However, unfair terms in consumer regulation act do nothing to control unfair terms in non-consumer contracts. This means that the defendants in a case where by the contract gives rise to huge penalty would not be able to rely on it to escape paying huge damages. Third, the unfair terms in consumer regulation act applies to the conditions that have not been independently focused amid the parties. Fourth the explanation of unfairness in the unfair terms in consumer regulation act constitute the term “contrary to the requirements of good faith” [17] .

This leads the implication that the person writing the consumer contract has an obligation to do so in good faith, an idea that is quite hard to come by. Unfair terms in consumer regulation act come from the European commission and the idea of contracting in good faith is quite common in other parts of the larger Europe. There is practically very little literature about what is actually meant by good faith and therefore it is a term of consumer contract that adds little to our understanding of unfairness.

Consequences for the drafting of commercial contracts

The period before the enactment of the two acts had seen firms shield themselves from responsibility resulting from negligence and ostensibly passing all the bulk of this cost to the consumer. This allowed errant producers to manufacture goods that did not meet the necessary quality and therefore the consumer ended up with defective goods that further caused him loss. However the introduction of the two acts prevents sellers from avoiding liability with the inclusion of exclusion clauses[18]. This means that contracts will be drawn in a manner that is fair to both parties since there is no room for exploitation or avoidance of liability. Furthermore firms will strive to bring to the attention of consumers all particular clauses so that all contractual relationships benefits all without necessitating legal redress.

Unfair Contract Terms Act 1977 is a British act of parliament which restricts operations of contracts used along side Unfair Terms in Consumer Regulations.. It states that, a person cannot by any chance have an excuse of neglecting his responsibility as stated in the contract as a result of carelessness or simply because of perverseness. Notwithstanding, a person cannot neglect his responsibility even if faced with losses or damages unless the terms agrees to the status of the condition. Where a contract term or notice intends to eliminate or limit responsibility for carelessness does not mean that a person’s acceptance of the contract’s terms is an acceptance of any risk that may come with it [19]

While the Unfair Terms in Consumer Contracts Regulations, states that a contract that has not been negotiated by an individual consumer is unfair and that the consumer is not bound to any contract given to him whatsoever. Thus in case of any complaint about unfairness by the consumer, the office of fair trade (OFT) is answerable. They have the authority to inquire about anybody who is dealing on unfair terms and if possible they can impose tough measures on those using unfair terms. An unfair term simply means contractual stipulations that are not yet negotiated on by the consumer[20].

The (UTCR) 1999, regulations relates to unfair term of contract made between a seller and the consumer. The regulations do not apply to the contractual terms that tend to be compulsory and rigid to the consumer as it may be automatically termed to be unfair. whereas in UCTA 1977, applies to two parties who agree on a contract, where one of the parties operates as consumer or on other written terms of business. This act restricts a party from neglecting the terms himself especially when he violates the contract. Neither can he submit a considerably different performance contract from that anticipated on him. Nor is he expected to give out no performance contract at if he was expected to do so as per the contractual terms except when the terms satisfies that the excuse fits the prerequisite of the contract.

Unfair terms;

According to the (UTCR) 1999, an unfair term is considered to be that contractual term that has not been agreed upon by the consumer, especially if the contract was drafted earlier and the consumer did not have any power over the contractual terms. Albeit that, the conditions provided in the contract will be valid when a specific term has been negotiated by an individual and an overall judgment of it shows that it is a pre-formulated form of contract. An unfair term can also be considered to exist in cases where a supplier claims that the terms were individually negotiated especially when it favors only the consumer[21].

In addition, the (UTCR) 1999, gauges discrimination to unfairness, this occurs when transactions are not well done as per the terms of contract i.e., the prices of goods are unreasonably hiked. This is contrary to the Unfair Contract Terms Act 1977, which terms unfair terms as; a party in a contract decides to consciously or unconsciously neglect his responsibility on the contract. Negligence of performing the required duty as a result of a damage or loss is considered to be unfair because the terms do not cover the unreasonable excuses. Unfairness is also considered when one party decides to breach the contract himself, or even failing to submit a qualitative contractual performance that is expected of him as was agreed in the contract. Lastly according to (UCTA, 1977) a person is considered to be contractually unfair when, he does not perform the contract assigned to him at all (Myer 1977)

Effect of breach;

In UTCR)1999,when a person does not provide a concrete reason that satisfies the terms, then the contract may be terminated, also, where the contract has been breached, then the consumer  or the party has the right to treat the contract as rejected or terminated. While in UCTA 1977, an unfair condition that is signed in by the supplier without the acceptance of the consumer is not obliged to any term. The contract shall go on with binding the parties if it is capable of continuing in survival without the unfair term.

Choice of law clauses;

There are several clauses that are quite useful to the acts although they differ. When considering UTCR1999, the regulations are used regardless of the contract terms and if in any case the contract has a link to the country of member state then the complaint is subject to deliberation by director. It is the duty of the director to ensure that the complaint raised is dealt with and impose any injunction when unfair contract terms are detected[22]. There are some complaints that have gone through the director and require to be looked at by the qualifying bodies but only after getting a go ahead from the director. The law that guides the imposition of injunctions to minimize the continued use of unfair terms states that the director or any qualifying body may recommend an injunction to that person who continue to use unfair. The qualifying body still has to get the move ahead from the director whom they notify at least 14 days before the date for injunction. The director then consents to the issue hereafter the court endows the injunction upon request through an application. Directors have the powers conferred to them by the regulation to act on a complaint and on the other hand, the qualifying bodies use powers conferred to them by the directors or the terms stated.

As for the UCTA, 1977, they have a clause known as the unreasonable indemnity clauses which ensure the consumer is totally protected. it states that a consumer cannot compensate another person even if he is involved in the contract or not when one has breached a contract or has carelessly handled the signed contract unless the contract regulations  satisfies the condition of fairness. Secondly, there is the law guiding responsibility arising from sale or supply of goods. It gives guarantees of consumer goods, by ensuring that a lot of negligence is reduced. They do not tolerate any irresponsibility that leads to breach of contract when the concerned manufacturer or distributor damaged goods or lost some good in the process [23] .The law becomes very strict when it comes to negligence. However, liability of the obligations arising from sale and hire purchase states that a contract of supplying goods can not be excluded just like other forms of contracts that have been mentioned above.

The person assigned the contract must ensure that there is no mismanagement of good, incase of  wrong description of goods then there should be no excuse of misunderstanding that may have taken place or any other thing that might have led to breach of contract. Nonetheless, avoidance of condition excluding liability for misrepresentation is one of the restrictive laws that do not tolerate any claim of misinterpretation. This may occur after signing of the contract. Incase of misinterpretation, here will be no option for such a person because the contract is already breached unless the conditions justify the claim.

Consequences of U .C. T.A 1977 and the U.T. C.R 1999

The terms renders all the terms exclusive of restrictive liability useless since the term further applies to real contract terms which should not strictly follow the criteria of other contractual terms. This is a big challenge top those who sign other long-term contracts, or lifetime contracts. In relation to the above, some contracts are made to the disadvantage of the consumer or even manufacturer. This is evident in cases where unexpected setback may occur, for instance, a road accident may lead to loss and damage of goods [24] For this matter, there might be no other option if the contract was already signed. At some point it has been reported that assessor’s provision was not favorable and realistic to a client who was powerless to refuse the injunction. For example if one had purchased a good and contract signed then the good is damaged before it’s even used then the consumer might find it difficult and expensive to do another transaction [25].

Alberta, for many years have advocated for plain language use so that the consumers may be in a position to understand the terms and conditions of the contract. But it has been noted that the use of plain language has led to ambiguous instructions that has brought problems of misinterpretation of the contract terms. The law of the two acts states that a contract shall remain binding so long as the two parties are able to stay in the contract without unfair terms, this is quiet a disadvantage to the suppliers because they cannot deal in a contract that rely on unfair terms since they regard such as useless, and a contract consisting of invalid terms continues to put the parties together. Also suppliers are disadvantaged to an extent that they have to compensate for damaged or lost goods because the contract cannot bend the rules unless there is satisfactory reason for that.

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[23] May, Larry. (1996) The Responsive Self: Professional Ethics Social Theory. University of Chicago

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