THE LAW SCHOOL
Postgraduate
Coursework
Assignment

MARK/GRADE

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Student No.   1712247

 

Name:           Muhammad Farhan  

 

Address:       P.O
BOX 285145

                    Riyadh,
Saudi Arabia-11323 

                                                                                     

         

 

         

DATE DUE:     1PM
on 8th January 2018 (UK Time)

                                                                                     

COURSE:       LLM/MSC
Construction Law and Arbitration          

 

MODULE:       BSM743:
Law of Obligation and Evidence   

 

TUTOR :        Mr. Olayinka Lewis

 

Mode of Attendance

FT

 

PT Yr1

 

PT Yr2

 

DL

X

 

 

I Confirm
(a)  That
the work undertaken for this assignment is entirely my own and that I have
not made use of any
      unauthorised assistance.
(b)  The sources
of all referenced material have been properly acknowledged.
(c)  A statement
of word count is included on the front of my work.  An electronic copy of my work has been put
into the drop box on the Moodle Campus. 
I agree that this may be subject to random testing by staff.
(d)  I have
read all notes on pages 1 & 2 of this document.
 

Signed:

Date:

 

 

1.    Notice of coursework submission dates and
times will be made available to students at the start of each semester when
details of the coursework requirements are distributed to the students by the
relevant staff.  Any changes to the
assessment schedule will be notified in writing, via the Moodle Campus or by
e-mail.

 

2.    All coursework must have this standard
coursework cover attached to the front of each document fully completed.

 

3.    Coursework received late after the specified
submission date & time will receive an NS grade, and one of the 2
assessment opportunities will be lost.

 

4.    EXTENSION REQUESTS: You MUST complete
a ‘Request for Coursework Extension Form’, available on the Moodle  Campus – see the Course Handbook. This must be
completed and submitted, together with supporting evidence, to the Module
Co-ordinator prior to the
original submission deadline.  Full
details on Extension Requests are contained in the Course Handbook.

 

5.    Students must retain a copy of their coursework
and the assessed document until the end of the Session, as it may be
required for Assessment Board purposes.

 

6.    Students will be informed of the expected
time scale for the return of marked coursework, normally 4 working weeks from
the submission date, and will also be informed of any delays in the return of
this coursework.

 

7.    UNDER
NO CIRCUMSTANCE SHOULD COURSEWORK BE COLLECTED ON BEHALF OF ANOTHER STUDENT.

 

 

EXTRACT – Academic Regulations, Section A3 Student Conduct, Appeals and
Complaints

 

7.1      
        Categories
of Academic Misconduct

 

(i)        
Plagiarism is the practice of presenting the thoughts, writings or other output of
another or others as original, without acknowledgement of their source(s).  All material used to support a piece of work,
whether a printed publication or from electronic media, should be appropriately
identified and referenced and should not normally copied directly unless as an
acknowledged quote.  Text translated into
the words of the individual student should in all cases acknowledge the source.

(ii)       
Falsification or fabrication of data consists of the misrepresentation of the results of
experimental work or the presentation of fictitious results.

(iii)      
Collusion involves two or more students working together, without the prior
authorisation of the Course Leader, Tutor or Supervisor, to produce the same
piece of work, and then attempting to present this work as entirely their own
work.  Collusion may also be suspected
when one student copies work from another student, without the knowledge of the
first student.

(iv)     
Bribery is the paying, offering or attempted exchange of an inducement for
information or material intended to advantage the recipient in an assessment.

(v)       Personating consists of a
substitute taking the place of a student in an examination or undertaking an
assessment on behalf of another.

 

A student who aids and abets a fellow student to commit academic
misconduct shall be deemed to have committed academic misconduct and will be
dealt with accordingly.

 

Academic Regulations can be viewed at
http://www.rgu.ac.uk/academicaffairs/quality/

 

FOR UNIVERSITY USE ONLY

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Question:

Sean,
the Sales Director at BIMSoft, is approached by Will, the project manager of
NewDay Construction Limited (ND) who explained that ND has submitted a number
of bids for projects which require the company to be fully compliant with the
Building Information Modelling (BIM) Level 2 and ask Sean to quote a price for
the installation of BIMSoft’s ‘state-of- the- art’ BIM Generation and
Management software. Sean, eager to reach his monthly sale’s quota, replies: ‘I
am sure that for a business of your size and the likely prospects of future
business we can guarantee a price of £10,500 covering installation cost and
appropriate staff training. I can only hold that price for a week’.

 

Later
that day, Will receives an advert by email from AutoBIM Ltd which states: ‘We
can offer our “cutting edge” BIM software for contractors seeking to be BIM
Level 2 compliant at a price guaranteed not to exceed £9000’. Will immediately
telephones AutoBIM and places an order. However, after discussing the matter
further with one of the technical staff of AutoBIM, it becomes apparent that
the actual cost of installation will exceed £12000. Will thereupon withdraws
his order.

 

Next
day, Will telephones BIMSoft. He leaves a message on the answering machine
accepting the offer of £10,500 made by Sean, at the same time asking whether
the cost could also include on-site training for any new staff ND will recruit
within six months of the commencement of the contract. Subsequently, Will is
unsure if he is making the right decision and telephones BIMSoft to cancel his
order. The secretary on duty informs Will that she has passed on all the
recordings on the answering machine to Sean, who will be listening to them
shortly, but that she will make a note of his withdrawal wish.

 

In
the meantime, BIMSoft has a system which triggers automatic messages to their
engineering team when an order is placed. The team will usually then visit the
premises of the customer for a preliminary check on the suitability of the
premises for installation of the software. This routine is followed soon after
Will’s order is placed. Whilst waiting in an adjacent car park, Vishnu, one of
the engineers of BIMSoft, left a toolbox close to the entrance of a pedestrian
walkway. Sarah, a twenty year old University student on holidays who lives
nearby tripped on the toolbox, fell awkwardly and injured her right ankle,
shoulders and neck. Whilst being transported to the Hospital, Sarah suffered
additional injuries to her ribs due to the hard padding on the stretcher and
the ‘bumpy ride’. Initial assessment of medical experts taking care of Sarah is
that she will need at least three months recovery time. Sarah is a member of a
professional football team. She will neither be able to complete her second
semester school work at the University nor play in her football team for the
next few months.

 

(a)
Advise Will whether he has concluded a contract with BIMSoft and or AutoBIM
and, if so on what terms? (Weighting: 55%)

(b)
Identify and address the various tort-related issues in the above scenario and
advise Sarah as to her potential legal claims. (Weighting: 45%)

(NB: Please
focus only on the legal issues. Also remember to consider counterarguments,
where necessary, before drawing conclusions).

 

 

 

 

 

 

 

 

 

 

 

Answer (a): 1,941
words

The
advice to New Day Construction (hereafter will be referred as ND) considering
the facts of current scenario should essentially answer a similar question of
concluding a legal binding contract but with two different parties. Issue of
terms upon which the contract/s has been concluded is important but is
secondary as it will be superfluous to discuss them in absence of a legal
binding contract. Facts are pointing the area of law and governing rules to be
analysed regarding formation of contract which is elementarily based on an offer,
acceptance, consideration, legal capacity and intention to create legal
relations. Differing events and happenings with BIMSoft and AutoBIM Ltd. (hereafter
will be referred as AutoBIM) clearly demands somewhat similar but separate analysis
of legal issues and possible counterarguments to reach conclusion. An
additional liability may exist by virtue of timing if in case ND forms contract/s
either as mutually exclusive events or non-mutually exclusive events.   

 

As
applicable legal jurisdiction is not clearly mentioned, any advice should cover
both the law of England and Wales (hereafter will be referred as E) and
Scotland. Generally this area of law is not much different in both
jurisdictions hence advice will explicitly cover only varying aspects.

 

The
first stage in contract formulation is to answer few basic questions like whether
there exists an offer? If ‘yes’ then probing the character whether it is a unilateral
offer or mere an invitation to treat? Whether offer has been communicated and
how it was communicated? Is there an attempt for revocation of that offer? If
‘yes’ was it successful?

 

 In Law an offer is an expression of interest
from one party to another with terms either fixed or capable of being fixed at
the time offer was made and hence it just requires an acceptance to create a
legal binding contract.1 An
invitation to treat is a pre offer or pre contract communication which falls
short of an offer and is meant to open the negotiations instead of making an
offer.2 Advertisements
are usually considered as invitation to treat but occasionally they tantamount
to a unilateral offer.3 Firstly
an advertisement amounting to a unilateral offer is actually an offer to the
whole world and secondly depending on how it has been written or published it
sometime waives the requirement of acceptance and acceptance is being done
through the performance, further such an offer cannot be withdrawn while
performance is underway.4 Where
construction is required by the court to distinguish between an invitation to
treat and an offer courts apply principle of party freedom (where advertiser
has right to reject a party responding) or principle of promisor objectivity (determination
of context and intention of advertisement with practical and commercial
consequences of deciding it as an invitation to treat or an offer).5 While
applying above ND approaching to BIMSoft was clearly an invitation to treat and
BIMSoft reply was an offer with defined terms of price, covering installation
and appropriate training. On the other hand AutoBIM advert while considering
its wordings ‘we can offer’ makes it crystal clear that it was an invitation to
treat leaving no room for a counter argument by AutoBIM to consider it as a unilateral
offer. AutoBIM counter argument if put forwarded will be requesting court to
consider promisor objectivity (party freedom is out of question as naturally
AutoBIM will be wishful to have business with ND) to construe their act as
unilateral offer. It will definitely fail when court will determine the intent
as wording “we can offer” is clearly showing intention of mere invitation. Consequently
ND reply through telephone to AutoBIM placing order will be regarded as ND’s
offer and under the light of available facts it is based on same terms as
proposed by AutoBIM in their invitation to treat.

 

Communication
of an offer (which is not a legal issue here) is important and as per law there
will be no contract if it has not been done properly.6 Communication
is of significant importance in case of revocation of an offer. Legal principle
is that any offer is open for revocation before its acceptance provided that
revocation has been communicated properly and receipt is mandatory to make it
effective7. Revocation
can be done either by the offeror, a reliable third party or by implication
(Counter offer or Second offer from original offeree).8
Timing has great influence on outcome. While applying above to the scenario, Will’s
communication with AutoBIM staff making him realized that actual work cannot be
completed within the amount offered to AutoBIM and Will’s subsequent withdrawal
of order is actually revocation of his offer. This revocation will be
successful if there is no counter argument and this will infer that no legal
binding contract has been established between ND and AutoBIM. As explained
earlier that discussing the terms is superfluous in absence of a legal binding
contract.  

 

Though
remote, but AutoBIM can counter argue the receipt of revocation and in that
case ND has to produce evidence to successfully rebut this counter argument. If
ND fails to rebut this counter argument this will indicate that ND’s offer is
still open for AutoBIM to accept and upon acceptance there will be a legally
binding contract upon same terms as indicated by Will in his offer (which in
fact are same as per invitation to treat by AutoBIM). Under the light of
currently available facts ND is advised in their best interest to ensure that
revocation has been completed successfully, if not yet they should immediately
accomplish the same by using the fastest mode of communication considering that
postal rule (communication is considered as delivered/effective upon posting) is
not applicable for revocation of an offer. 

 

The
Second stage in contract formulation is to verify acceptance. General questions
which require answers here are; is offer valid or lapsed at the time acceptance
reached to its effectiveness? If ‘yes’ is acceptance in line with the terms of subject
offer? If “No” then can it be treated as a counter offer or just an inquiry? How
acceptance has been communicated and when it gets effective? Is there an
attempt to retract the acceptance before it gets effective?

 

The
character of Acceptance should be such that it should reflect or mirror an
offer in its entirety in general but its terms in particular. It can acquire
any desired form unless explicitly stipulated in the offer otherwise.9 A
time bound offer will lapse and will not remain open for acceptance after its
expiry.10 If
an offeree accepts an offer in principle but inserts a new term or replace an
existing term then this act in law will be treated as counter offer.11 A
counter offer must be distinguished from an inquiry or request for information
where the offeree’s intention is only to clarify a term or to negotiate for a
better available option for a term while maintaining the essence of the term.12 Method
of communication for acceptance usually raises issues where it essentially
requires determining that at what point in time acceptance has reached its
effectiveness, at what place (sender country or receivers country) it gets
effective and whether it gets effective on physical receipt disregarding to the
fact that is has not been read, listened or understood by the receiver13. In Entores
Ltd v Miles Far East Corporation receipt rule has been adopted by the court
for telex being analogues to the simplest model of communication between two
persons, but in Entores the question was ‘place’ not the time which is
the subject matter here14. In
The Brimnes though the communication was not acceptance rather it was a
notice of withdrawal but it was held that it was effective when received at
recipient telex during office hours disregarding the fact that it was read the next
day.15 Retraction
of acceptance is possible before acceptance gets effective. While applying
above to the scenario, Firstly there is no question of offer expiry as Sean
offer was valid for a week and all what happened was just next day. Secondly, Will’s
message on answering machine accepting Sean’s offer can be viewed both ways
i.e. an acceptance with inquiry of a term already existed in the offer
(Appropriate Training) or a counter offer where the offeree is enhancing a term
of an offer. There is a problem with latter argument due to the wording ‘at the
same time asking whether’ giving rise to an inquiry/clarification rather than a
proposal. It will remain a matter of construction for courts during litigation
to decide between a counter offer and inquiry.

 

 If it’s decided to be an inquiry/clarification
then Will’s message on answering machine will not be regarded as acceptance as
held in Stevenson v Mc Lean. It will amount to rejection of an offer even
upon effective physical delivery on answer machine system (disregarding whether
it has been listened or not). Thus a legal binding contract will not be
established between ND and BIMSoft while the offer will still remain open
for Will to accept. On the contrary if its decided as counter offer then again
there will be no legal binding contract between ND and BIMSoft  unless Sean provides an acceptance to Will’s
counter offer which is still open for BIMSoft to establish a legal binding
contract on Will’s terms. Alternatively Will can also send a revocation of his
offer before Sean’s acceptance.

 

If Stevension
v Mc Lean is not applied by court during litigation and Wills
attempt on answering machine is regarded as acceptance by the court then there
still remains analysis of issues related to time at which delivery of
acceptance was made and Will’s attempt of retraction of his acceptance. In the
light of legal principles explained above it does not matter that whether Sean
has listened to Will’s note on answering machine, what matter is whether Will’s
note has been delivered to Sean’s answering machine to make acceptance as
effective. By the time Will has established the call with Sean’s secretary to
retract his offer, it appears that messages on answering machine have been
received at BIMSoft and have been provided to Sean for listening indicating
that a legal binding contract has already been established between ND and
BIMSoft on terms of original offer given by BIMSoft. There is a remote
possibility if somehow message sent by Will has not been received in BIMSoft
answering machine system at the time when Will has established call with the
Secretary and has communicated his retraction of earlier acceptance. In this
case retraction will be successful as secretary being the qualified 3rd
party and this will not result in a legal binding contract between ND and
BIMSoft. An expert witness may be required by the court during litigation
to evidence answers to the questions like when Will’s message was exactly
received in BIMSoft answering machine system? 
When exactly Sean has listened to Will’s message? At what point of time
Will has established call with secretary to retract acceptance? Etc.  

 

There
may arise in an issue of enforceability of a contract after successful formulation
if it can be evidenced that intention to create legal relations does not exists16. This
can be a counter argument raised by any party who wish to oppose the contract
if it has been legally formulated. Legally commercial agreements are those in
which any one party acts in its commercial capacity and to such an agreement
law applies a very strong presumption in favour of intention to create legal
relations, unless contrary is proven17. This
presumption will successfully apply on the scenario as all parties acted in
their commercial capacity. Any argument opposing the presumption will fail as
contrary cannot be proved.18     

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Answer (b):
1350 words

The
advice to Sarah for her potential legal claims requires a succinct analysis of
relevant tortious principles and potential counterarguments.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Bibliography

The
advice to  

 

 

 

1Gibson v Manchester City Council 1979 1 WLR 294; Gard
Gjensidig v International Oil Pollution Compensation Fund

2014 EWHC 3369 (Comm); J Poole Textbook on Contract Law (12th edn,
Oxford 2014) 36; R Stone The Modern Law of Contract
(11th edn, Routledge 2015) 37.

2 Fisher v Bell 1961 1 QB
394; Partridge v Crittenden 1968 1 WLR 1204; R Stone The Modern Law of Contract (11th edn, Routledge 2015) 38.

3 Carlill v The Carbolic Smoke Ball Co. Ltd 1893 1 QB 256.

4 Errington v Errington & Woods 1952 1 KB 290; Chris Turner, Key Cases Contract Law (2nd edn, Hodder
Education 2011) 1

5 Partridge v Crittenden 1968 1 WLR 1204; Harris v Nickerson
(1873) LR 8 QB 286; R Stone The Modern Law of Contract (11th edn, Routledge
2015) 44.

6 Taylor v Laird (1856) 25 LJ Ex 329

7 Routledge v Grant (1828) 4 Bing 653; Byrne v Tienhoven (1880) 5
CPD 344.

8 Dickinson v Dodds (1876) 2 Ch
D 463; Henthorn v Fraser 1892 2 Ch 27

9 Manchester Diocesan Council of Education v Commercial
& General Investments Ltd. 1970 1
WLR 241.

10 Ramsgate
Victoria Hotel Co. Ltd v Montefiore (1866) LR 1 Ex 109

11 1984 SLT 100; Hyde v Wrench 1840 49 ER 132

12 Stevenson v
McLean (1880) 5 QBD
346

13 R Stone The Modern Law of Contract (11th edn,
Routledge 2015) 66.

14 Entores Ltd
v Miles Far East Corporation 1955 2 QB 327

15 The Brimnes 1975 QB 929

16 R Stone The Modern Law of Contract (11th edn,
Routledge 2015) 141.

17 Parker v Clarke 1960 1 WLR 286; Merritt v Merritt 1970 1 WLR 1211 (Non Commercial
Agreements)

18 Rose and Frank Co. v J R Crompton & Bros 1923 2 KB 261; 1925 AC 445

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