Distinguish between slander, libel, defamation, deceit, and trade slander, indicating the instances each would apply and the significance of the dissimilarity.
For a statement to be actionable and considered to be defamation, it has to be published, false, and derogatory and must refer to a specific person. If it refers to a group of people, it is not defamation. A defaming statement cannot be complimentary even if not true. It must also have the effect of disadvantaging the individual, in that it has to be told to a third party possibly the media causing other people to avoid the plaintiff.
Slander is the spoken form of defamation. It is defamation that is spoken to a third party that has the attributes described above. Trade slander is also referred to as product defamation. As suggested by the name, it occurs when the target of defamation is another’s business or product.
Libel refers to written defamation. It involves a more deliberate act of defamation targeted at an individual. Since it is written, it considered to be premeditated. Libel is easily proven due to the existence of a permanent form of defamation.
Deceit is an intentional act of fraud that misleads another person causing harm. For deceit to be proven, the person making the statement does not have to know it to be incorrect, he or she just needs to not believe in it.
Imprisonment can take the form of confinement, arrest, or submission to authority. Explain the differences and determine what is necessary to sue for false imprisonment.
Confinement refers to the state of an individual being restrained, lawfully or unlawfully, in a bounded area for a period of time. The individual’s freedom of movement is restricted. It may be in a cell or room. The lawfulness of the confinement is determined by the nature of the confinement and the authority of the holding party.
False imprisonment is where an individual is intentionally held in confinement against his or her will, and involving a person without the lawful authority to do so. It includes false arrests. A person can sue for unlawful imprisonment if his or her freedom of movement at will is restrained without lawful cause for this action.
Distinguish between assault and battery. Discuss the right of self-defense with regards to assault and battery. Discuss how doctors avoid liability when they operate on or otherwise treat patients.
An assault is an action that threatens the physical wellness of an individual. It involves intentionally interfering with a person physically, against his or her will. An assault is considered to be any action that invokes fear in an individual, such as threatening him or her with a handgun.
An assault is usually, but not always, a precursor of a battery. A battery occurs when an individual’s physical wellness is actually compromised through contact. An example is when an individual is shot or punched. Even though assault and battery do not always lead to injury of the plaintiff, they are both actionable under law.
The law allows individuals being attacked to defend themselves during an assault or battery with reasonable force. Their statements of facts during the ordeal are considered when determination of reasonability of the force used is done.
A patient under treatment of a doctor is expected to consent to the treatment. This consent acts as the protection of doctors against liability in the event of disability, death or other negative outcomes of a treatment. The doctor however, cannot exceed the restraints of the consent by the patient. It is also essential to note that the individual must be informed of all possible outcomes and the process of treatment before being allowed to consent to the treatment. If the doctor exceeds these confines, he or she is liable to suits by the patient.
What are the necessary elements that must be present for a person to be classified as a trespasser? Consider the context of a homeowner with unruly guests or a business with unruly patrons. Apply the Trespass to Property Act in your answer.
A trespasser is an individual who enters the property of another without lawful authority or permission from the owner. Trespass of land is actionable, whether or not the individual is aware of the trespass and whether or not there was any damage to property or injury to occupants. It is, however, not considered trespass when the individual is not in control of his or her presence in the land or property.
An indirect trespass constitutes the incursion of property using inanimate objects, such as when one throws a ball onto someone else’s property. An injury occurring as a result of indirect trespass is actionable. It is notable that a trespasser injured on the property has no claim against the owner.
In the case of a homeowner or business, where guests are welcomed, the owner is allowed to ask any guest to leave his or her property. The visitors are there with the implied right by the owner. If unruly guests refuse to leave on the request of the owner, they are considered trespassers. The law allows the owner of the business or home to eject the trespassers using reasonable force.
Explain, with reference to decided cases, what a person must do to establish negligence. Expand on the tests which may be applied and discuss what remedies and defenses are available. How does negligence relate to professional liability?
Acts of careless conduct, intentional or unintentional, which cause injury or damage to other individuals or their property, are referred to as negligence. To establish the tort of negligence, an individual has to show above doubt, the following aspects:
- The plaintiff is owed duty of care. Negligence entails an aspect of failure by an individual to carry out necessary duties or measures on an item or for an individual. For a court to establish negligence, it carries out a reasonable foreseeability test. This test establishes whether there is a duty of care on the part of the defendant. The test shows that if the circumstance was reasonably foreseeable, the defendant has a duty. This shows that the neglect is actionable. In Donoghue v. Stevenson, the court applied this test.
- The plaintiff has to show a breach of duty. There is an existing standard of care, expected of a person responsible for certain duties. After establishing that the defendant has a duty, the plaintiff has to show that there was a breach of duty. The reasonable person test indicates whether the defendant carried out the expected level of his or her duty. This test was used in Maccabe v. Westloack.
- The plaintiff has to prove cause. For negligence to be actionable, there has to be a loss on the part of the plaintiff, whether personal or in form of property. This loss has to be as a direct result of the careless conduct of the defendant. The court uses the “but for” test to establish causation of the loss. This test indicates whether the loss could have happened, if the caress conduct was not involved. The court may also establish causation based on the reasonable foreseeability test. This determines whether the danger involved should have been reasonably foreseen by the defendant. It also shows whether, this type of injury should have been foreseen.
- The plaintiff has to show damage. As indicated above, negligence is only actionable if there is loss or damage to the plaintiff or his or her property. The plaintiff has to show that there is damage and that it was directly caused by the negligence. This was shown in Joslyn & oslen contracting Ltd. V. Bouey.
Contributory negligence is where the plaintiff is proven to have been careless and hence leading to the losses. In case contributory negligence is proven, the plaintiff loses the right to be compensated.
In cases of professional liability, negligence is an instrumental aspect. A professional has to provide services in line with the appropriate standard expected of him or her. Failure to do this could live him or her liable to suits.
List and explain the elements that are required for an agreement to be a contract. In your answer, consider void and voidable contracts, formal and parol contracts, unenforceable and illegal contracts, implied terms, unilateral contracts, gratuitous promise, seals, offer, acceptance, and consideration.
- Consideration. This is the price each party agrees to pay.
- Consensus. Every party involved must be in mutual agreement to the terms of the contract.
- Capacity. All parties involved must have the capacity to understand and legally enter into the agreement. This eliminates any minors, intoxicated individuals, insane or aliens.
- Intention. Each party must intend to result in the legally enforceable obligations stipulated in the contract.
- Legality. The contract must involve legal activities.
A void contract is one which is missing any of the above elements. It is not enforceable by law. Voidable contracts are those where one of the parties has the authority to end the contract.
A formal contract is written and authenticated by all parties, while a parol contract is verbal and not sealed.
An express contract features an agreement by the parties whether verbal or written. If some parts of the contract are missing, they may be considered as implied by all the parties (Cheeseman 48).
An unenforceable contract is one which does not follow the required rules of a contract. An illegal contract is that which refers to an unlawful activity.
A gratuitous promise contract is a one sided agreement that is not enforceable by the law due to its one-sidedness.
A unilateral contract involves a promise followed by an act. One party carries out an act without receiving a promise from the other.
A seal is an impression imprinted on a contract to make it formal. Consideration is not a necessity in the presence of a seal on the contract.
An offer and an acceptance are required at consensus stage. The offer includes all the terms to be accepted by parties involved. It outlines what terms the parties are bound to if consent is received. The terms have to be clear and avoid ambiguity.
Explain the circumstances in which a minor, mental incompetent or drunk person may escape liability for a contract and the circumstances in which they or their guardian may be bound or become bound by the contact.
Minors involved in contractual agreements are not liable to the contracts they are involved in. However, the adults involved in the agreement are liable to their contractual obligations.
Minors are expected to reach their obligation in contracts involving acquisition of necessities, such as food and clothing. If a minor ratifies a contract on becoming an adult, he or she loses the right to avoid the contractual obligations of the contract. Unless parents are specifically included in the contract involving their children, they are not liable for the minors’ contractual obligations.
Like minors, individuals who are insane or mentally incompetent are not liable to contracts they get into. However, it must be proven that the insane person was not aware of his or her acts. That said, in order for a mentally incapacitated individual to escape contractual obligations, he or she must prove that the other party was aware of this incapacity (Cheeseman 51).
The incapacity created by intoxication has to be proven for an intoxicated individual to avoid contractual obligations entered into when intoxicated. As with the insane, the other party has to be shown to have known of the intoxication. Moreover, the intoxicated individual must show that he or she rejected the contract on becoming sober.
Discuss in detail the requirement of writing, including reference to decided cases, statutes, and the common law.
In limited occasions, the law requires that contracts be written. Under the Statute of Frauds, the following contracts require written agreements:
- Land dealings. All dealings in land must be in written form in order to be enforceable.
- Guarantees and Indemnities. This is required by the law and equity act of British Colombia.
- Contracts which require more than a year to be fulfilled.
- For a sale to be enforceable there has to be a written evidence of the sale. This is entailed in the Sale of Goods Act and affects sales exceeding certain minimums. This was entailed in Megill Stephenson Co. v. Woo.
Discuss the concept of “intention to be bound”, in the nature of commercial and non-commercial contracts, having regard to the necessity of writing, how the courts view agreements, and the tests used to determine intention.
The courts may respond differently to different cases involving the problem of intention:
- The court honors any contract where the contract clearly states that the obligations are not to be enforceable by law.
- In the absence of any clear instructions stating that a commercial contract is not legally binding, the court presumes the intention to be bound by law.
- In cases involving social and commercial relations, the courts use the reasonable person test in determining whether the parties wanting to enforce the agreement would have thought that a legally binding contract was instituted.
- In cases of exaggerated claims such as those used by merchants in advertisements, courts use the reasonable person test.
- Agreements between family members or friends that are not commercial in nature are presumed to not be legally binding unless there is a formal contract in place. The court presumes that the parties did not intend the agreement to be legally binding.
In this case, Campbell and Gibson are in a contractual agreement. The case entails the intricacies of a contractual relationship and the idea of breach of contract.
It is essential to note that the Monday night contract is valid since it has met all the requirements of a valid contract. In this case, Campbell has breached the contract with Gibson. Campbell and Gibson agree on a $24000 price for a desk with Campbell offering and Gibson considering it. Campbell agrees to hold the desk until Friday, a period within which Gibson would accept or deny the offer. Gibson accepts the offer by sending a letter to Campbell of Monday evening. In the meanwhile, on Tuesday, Campbell receives an offer for the desk from Mackay for $25000. He writes to Gibson to cancel the earlier offer made. Gibson receives this letter on Thursday. The court finds that the contractual agreement takes effect when Gibson accepts the offer on Monday evening.
Although the ensuing events lead to the uncontrollable destruction of the desk by fire, there is a breach of contract on the part of Campbell for failing to deliver the desk. Unless the desk was insured, Campbell will suffer the cost of the loss.
In this case, the plaintiff has to prove that the defendant had a duty of care, breached this duty, presence of causation and that damage occurred. The case involves negligence.
Francis and Evan have a duty of care. Francis has breached this duty by allowing his minor son to operate and automobile. A reasonable person test is used to determine whether Francis had a duty of care and breached this duty.
In order to prove causation, George must prove beyond reasonable doubt that if Evan had not been driving the automobile, he would not have been hurt. In this case, I think that Francis could be ordered to pay compensation to George for the negligence. It is, however, plausible that the defense could bring up the issue of contributory neglect, since George was not appropriately dressed.
This case also brings up professional liability. The doctors involved, Foote and Cutter both breached fiduciary duty and were negligent. Dr. Foote diagnosed George incorrectly and Dr. Cutter amputated the wrong leg. The employer in this case could be held liable due to the vicarious liability.
This case presents the issue of a void contract and its impact on the parties. When a contract is void, the court cannot enforce it. However, if parties presumed that they were bound by the contract and proceeded to perform their obligations, the court tries to put every party to their initial position before the contract.
Macpherson and Holt are in an agreement involving a book in Macpherson’s library. Macpherson has two copies of the same book, one in good condition and another in bad condition. Holt makes an offer to buy the one in bad condition. Macpherson is not aware that both books are displayed in different parts of the library. Holt is also unaware that Macpherson has two copies. This indicates the absence of consensus and voids the contract.
In addition, both parties did not understand the terms of the agreement since they agreed on different books. However, Holt and Macpherson both believed they were bound and went on with the contractual obligation. The court will order Holt to return the book and Macpherson to return the money.
WORKS CITED
Cheeseman Henry. Business Law (8th Edition). New Jersey: Prentice Hall, 2012. Print
