What is the importance of implied terms to the contract of employment
What is the importance of implied terms to the contract of employment? A contract of employment comes into existence once an employee's offer of services had been accepted, and the employer is required to issue a written statement of the main terms and conditions of employment1. Because the employment relationship is so extensive it is impossible to capture all the 'intentions' of the parties or 'necessities' of the employment relationship on that statement. This means that the contract of employment - in addition to being represented in other forms2 - is also governed by implied terms, which allow the courts to 'read in' certain terms that are necessary to make the contract of employment work. The test for implication of terms is 'necessity' 3 and not reasonableness4. There are three ways of incorporating implied terms into the contract of employment - by fact, by law, and custom5. A term implied by fact is specific to the particular contract of employment. It would be implied that a doctor working in a hospital holds a medical license to practise. Two tests are used to determine whether there is a term of specific implication - the business efficacy test of whether the term was necessary to make the contract work6, and the officious bystander test of where an officious bystander to suggest the express provision of the term he would have been suppressed with a common
"There are occasions where terms are implied into contracts which have never been discussed by the parties. Critically consider the circumstances in which this is likely to occur"
"There are occasions where terms are implied into contracts which have never been discussed by the parties. Critically consider the circumstances in which this is likely to occur" The attitude of the courts towards terms in contracts has changed significantly from the 19th century up to the 21st century. The law of contract was previously governed by the maxim caveat emptor (let the buyer beware). It was rarely considered that there are circumstances where one party will be of inferior bargaining power. Terms will implied for one of two reasons: because a court in a later dispute is trying to give effect to a presumed intention of the parties, even though these intentions have not been expressly stated by the parties (terms implied by fact); or because the law demands that certain obligations are to be included in a contract irrespective of whether the parties have agreed on them or would naturally include them. Usually this will be the result of a statutory provision aimed to protect a particular group or level an imbalance of bargaining power - but it can also be by operation of the common law. Terms implied by fact are usually done so on the basis of individual court cases. The courts have implied term by fact in a variety of circumstances, the first being terms implied by custom or habit. This is governed by an old maxim that custom hardens into right and this was
Case Analysis: Christine Brooks v. Cooke County Hospital District
Case Analysis #3 Christine Brooks v. Cooke County Hospital District Background Christine Brooks was placed on probation in February 1994, after working for ten years with the Cooke County Hospital District ("CCHD"), for exhibiting poor work attitude, breaching patient confidentiality, and engaging in personal business at work. CCHD terminated Brook's employment, while she was on probation, because of additional policy violations. Brooks filed suit against CCHD on December 28, 1994. This case is related to the employer-employee relationship and at-will employment. The big issues in this case seem to be: - Did a contract exist between Brooks and CCHD, as opposed to a traditional at-will employment? - Was there a violation of either the contract or the at-will employment doctrine by CCHD? - Was there a serious violation of policy by Brooks? The sub issues are: - Was there any discrimination or retaliation against Brooks? - Was Brooks being penalized twice for the same cause? - Was Brooks negligent in discussing the situation in an open setting? Christine Brooks' case Christine Brooks had been employed with CCHD for almost ten years. In 1994 she was terminated while on probation. The following text attempts to analyze Brooks' position and the approach that she should take to make her case against CCHD. Brooks' case should focus on proving that her status with CCHD
Aspects of Contract and Business Law Case Studies
Temuulen Od-Ochir Unit 21 Aspects of Contract and Business Law 726073 BTEC Extended Diploma in Business INTRODUCTION Contract law is important for businesses because any promises or agreement made in a business should be binding which according to the law should involve some form of exchanges. It would be impossible to run a business without a contract as that would not make promises binding. For example: suppliers would be very reluctant to supply their product to a retail store if that retail store could suddenly decide they are going to buy from different supplier and do not expect to compensate for the money they put in. The contract law helps the innocent party to recover financially given that the contract has been performed as agreed by them. The law helps the organisation to know what to expect if the agreement is not carried and the law doesn’t allow those who fail to perform get away with their breach. Task 1 Below is a contract for the sale of Solid and Frogged bricks for a company building house. Agreement of supplying Bricks Supplier: Amersham &Wycombe Buyer: Temuulen Date to be delivered : **/**/**** Date of Signing : **/**/**** Material Name Unit Price (per unit) Total Price Solid Bricks 50000 £3.50 175.000 Frogged
Discuss the role of hardship clauses in controlling liability by contract.
TOPIC: DISCUSS THE ROLE OF HARDSHIP CLAUSES IN CONTROLLING LIABILITY BY CONTRACT. Introduction The fundamental principle of the law of contract is that the parties to a contract must carry out their contractual obligations. The principle of hardship operates as a modification of the principle of pacta sunt servanda; it gives relief to a party where performance of a contractual obligation due to change of circumstances becomes extremely onerous. This essay will discuss the role of hardship clauses in controlling liability by contract. The first part briefly states the key elements of hardship clauses. The second part considers the role of hardship clauses in controlling liability from a theoretical perspective whilst the third part undertakes an analysis of the elements of hardship clauses with a view to finding out when such clauses can be used to limit liability under a contract. The fourth part discusses the obligation to renegotiate, and some sanctions for failure to successfully renegotiate a solution in the changed circumstances. . Contents of Hardship Clauses Hardship clauses are usually incorporated in long-term construction contracts, infrastructure projects, joint ventures, management and marketing agreements and other contracts requiring regular performance of services or delivery of goods from a particular source of supply. Though the details of hardship
Detail the possible rights and obligations of both Tenant and Landlord.Use examples and case law. Be as comprehensive as possible as to the possible options.
LANDLAW AND LANDLORD AND TENANT LAW COURSEWORK ) 1.0 Detail the possible rights and obligations of both Tenant and Landlord. Use examples and case law. Be as comprehensive as possible as to the possible options. Relationships between landlords and tenants are governed by several statutes and court rulings. However, the most important source of information is the rental agreement, whether it is written or oral. Some landlords prefer oral agreements; however it's most common for them to require your signature on a written lease. When a rented property is leased from a landlord for residential use, the arrangement is called a 'residential lease'. Where as if a business leases a rented property, the agreement for the arrangement is called a commercial lease. Reference 1 There are many similarities between the two types of leases, however many differences too. The law often regulates the relationship between a tenant and a landlord under a residential lease. These laws are designed to provide basic requirements for the condition of the rental property, and to protect tenants from dishonest landlords. On the contrary, commercial leases are viewed as being contracts between knowledgeable business people, whom therefore should be able to negotiate the terms of the lease to their respective satisfaction. They are able to contract anything they wish, resulted from 'freedom
Outline the basic rule of the law of contract regarding the effective revocation of an offer.
Outline the basic rule of the law of contract regarding the effective revocation of an offer. [750 words max] In the Law of Contract, there have been five fundamental performances by which an offer can be terminated. Firstly, an offer can be withdrawn. Thus, an offer can be withdrawn by the offeror at anytime before acceptance has taken place. To withdraw an offer, the offeror must bring notice of the withdrawal to the attention of the offeree. This is the general rule for revocation. But, there is however no actual requirement that the offeror himself must be the one to put forward his withdrawal to the attention of the offeree. In Dickinson v. Dodds (1876) 2 Ch D 463, the defendant offered to sell a house to the plaintiff for £800. The offer being left open until Friday. On Thursday the defendant sold the house to a third party. The plaintiff was informed of the situation by someone else. Nevertheless the plaintiff on Friday, decided to send the defendant a letter of acceptance. The plaintiff sued the defendant for breach of contract. The court held no contract had been made between the two parties, because the offer had been withdrawn before it was accepted. Hence the lapse of time for the acceptance to take place (offer was open until Friday) and the revocation which took place on the Thursday before acceptance had taken place and the plaintiff was also informed by the
The first importance is establishing that a valid contract has been made between the two parties, Alfie and Garage
MARIO NARGI BUSINESS AND COMPANY LAW LEVEL 4 20 CREDIT POINTS MODULE LEADER : J.MARSON HAND IN : 25th Jan 2005 Problem 1: 947 words Alfie and the Local Garage Intro: Alfie needs a garage for a new clutch. For Alfie to know to take his car to this garage there must have been an invitation to treat by an advert of some sort displaying what the garage undertakes. Alfie decided to go in, he asked the garage to fix his car, an offer is on the table, the garage person accepts to fix the car and in return for the work of a new clutch, a sum of £400 is to be paid. The first importance is establishing that a valid contract has been made between the two parties, Alfie and Garage. These two parties have committed themselves to carry out specific terms; these are discussed when bringing the car into the garage. The garage has agreed to install a new clutch in the Jaguar XK8, and Alfie has agreed to pay the price given to him of £400. Alfie leaves the car, he has accepted the deal. It is later confirmed by paying the sum of money, even though the amount to be paid increases. Usually when taking a car into a garage and leaving it to be repaired, a written contract is rarely, if ever drafted together. This is because the procedure is a common one and happens many times a day; it would be impractical to perform this everytime. A substitute for this however is in the form of an
Contract law - Case study.
Both the parties in the question have come to a problematic situation which is complicated to resolve. Friend's of the Forest (Friends), represented by Christabel, is involved in a commercial trade with Paper Supplies Pty Ltd (Paper) which is represented by Dee. A contract needs four essential elements to exist. In the situation, it is obvious that the four elements are satisfied. As the details are not fully provided, it is arguable as to when the contract was formed which will affect the legal rights and obligations of both parties. The first main issues to be discussed regarding the contract is whether is the exemption clause binding and enforceable, is the document contractual in nature, and was the exemption clause a term of the contract. It is arguable that the contract was formed only after the goods and delivery note had been delivered, and Christabel retained the goods without making any objection to the conditions on the note. But this did not mean that all conditions contained in the note were terms of the contract. It was not possible for Christabel to negotiate the terms in the document as it was delivered by the driver and is reasonable to assume that the driver is not an agent of Paper. Thus, Christabel could not negotiate the terms with Dee.1 Nevertheless, Christabel did sign the document which will become binding as the fact that a person that has signed
Company law
Company law (I)Who have the control of the company Management Control: In this case, Ian, Martin and Peter are directors and so they own the general power of managing the company by acting as the agents of the company. By Table A, Articles 82, the directors may exercise all powers of the company not required by the ordinance or the articles to be exercised by the company in general meeting. Also, if the directors act within the powers given to them by Art 82 (or by some similar article), the courts have generally upheld the view that the directors are not bound to obey resolutions passed by shareholders at a general meeting. This is because the articles constitute a contract by which the members agree that the directors will manage the company and they generally have no right to overrule BOD. As a result, the three directors can ignore resolutions of the general meeting on matters of management unless there is an amendment made in the articles (Automatic Self Cleaning Filter Syndicate Co Ltd v Cuninghame (1906) UK.) However, there are some exceptional situations: . If the directors act beyond the powers given to them by the company's articles, the members may challenge the validity of their decisions (Tang Kam Yip v Yau Kung School (1986)). 2. The directors are unwilling or unable to act or exercise the powers vested in it, the members may do so. (Marshall's Valve Gear
