Law of obligation (Tort law and Contract law)
Category : Contract Law, Law Case Study Sample, Law Essay Sample
Question 1: In relation to contract law, explain the difference between an offer and an invitation to treat. ii) " The postal rule of acceptance of an offer should be abolished as it can lead to unfairbess." Do you agree with this observation? In your answer, you should cite any relevant case law
In contract law, there are aspects like the offer and invitation to treat context. Accordingly, invitation to treat commonly known as the bargain came from the Latin phrase invitatio ad offerendum which means an "inviting an offer" or as written by Andrew Burrows as an expression of willingness to negotiate. An individual that makes invitation to treat does not intend to be bound as soon as it is accepted by the other party to who it is addressed. Contract lawyers have been able to identify this from a binding offer that can be accepted to form a contract. Accordingly, the distinction between an offer as well as invitation to treat is best understood through the classifications that the courts established. Invitations to treat compose of the display of products or goods, the price advertisement or an auction and an invitation for tenders (or competitive bids). However, there are also statutory or complementary obligations, so customer protection laws forbids misleading advertisements and at auctions without reservations, there is always an obligation to sell to the highest bona fide bidder to get the good or products.
Advertisements are commonly known as invitations to treat, which permit the sellers to refuse to sell products at prices that were marked incorrectly. In addition, it can also be noted as offers in some case. Auctions on one hand are sometimes invitations to treat which permits the seller to consider bids and choose which to accept. Nonetheless, if the seller states that there is no reserve price for the specific product or the reserve price has been attained, the auction will be considered an offer accepted by the highest bidder. One of the examples of invitation to treat is the tender process which can be illustrated by the case of Spencer v. Harding (1870) LR 5 CP 561, in which the defendants offered to sell by tender their stock and in this case, the court held that they had not undertaken to sell to the individual who completed the highest tender, but were inviting offers which they could then reject or accept as they saw correctly. In some cases, though, an invitation for tenders may also be considered as an offer. The clearest example of this was seen in the case of Harvela Investments Ltd v. Royal Trust of Canada (CI) Ltd  AC 207, in which the defendants had made it apparent that they were going to admit the highest tender.
Accordingly, negligence is a very common term in legal system. Negligence is being defined as the failure to do or the doing of something which other individuals would or would not do. This implies that if someone does or fail to do something which causes one harm, those individuals are negligent. In the case presented, the driver of the minibus can be considered as negligent.
In this case, speedy Man, can be considered as a negligent driver and he is responsible for a duty of care in law. In this case, the investigation shows that speedy man has responsibilities on the accident and all the damages caused by such accidents. In this case, Speedy man has monetary liabilities on the victims of the accidents who get injured and lose their jobs. In this regard, Speedy Man is responsible for compensating the victim. In this case, the damages caused by the negligence of the driver are compensatory and not punitive in nature.
In the case of Tomoko who was killed instantly, Speedy man has criminal liability and it is punishable by law. If in this case, it was proven that Speedy man is using his mobile phone while driving; there are other criminal liabilities to be given. In the case of Annie, Macy and Christina, compensatory liability should be given for the driver, especially if they are working like Macy. In this regard, the amount to be paid should match the claimant’s actual loss in cases which involve physical injury, in which the amount awarded must aim to compensate the suffering and pain.
In this case, other aspect to consider is nervous shock. This is a term used in denoting psychiatric illness or injury inflicted upon a person by negligent or intentional actions or omissions of another. This case is most often applied to psychiatric disorders triggered by witnessing an accident, like what had happened in Handy Lam in the accident caused by speedy many. This term is used to describe "inaccurate" and "misleading" actions. The possibility of recovering damages for nervous shock, specifically caused by negligence, however, is still limited in English law. In this case, there is a vicarious liability to be considered.
The primary victims in the case of Speedy Man are those who suffered physical injury. In this regard, there is a liability to be considered. On one hand, the secondary victim, like Handy man is those individuals who suffer nervous shock witnessing the danger. In several decisions, the courts have determined strict requirements for the identification of a duty of care not to cause nervous shock and the remoteness and causation. In this regard, claims for mental distress under the accident compensation regime or now for nervous shock.
In this regard, the accident caused by speedy Man with his negligent actions has caused damages which is compensatory and punitive as a whole because of the damages and loss it caused for the family and individuals who were victims of the entire accident.