Aveneu Park, Starling, Australia

ESSAY that ND has submitted a number of

 

ESSAY 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’.

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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).

Issue:

The Will, Project Manager of NewDay
Construction Limited (hereafter ‘ND’) has approached and ask Sean, Sales
Director at BIMSoft (hereafter ‘BS’) to quote a price for the installation of
BIM generation and Management software in order to full fill the condition for
the company to be full compliant with the Building Information Modelling
(hereafter’ BIM) Level 2. Sean offered the price £10,500 including the
installation of cost of software and appropriate staff training with the
validity of price for one week.

Will also receive an advert by email from
the Auto BIM Ltd for Level 2 compliant at a price £9000, Will call to Auto and
place an order but after further discussion with one of technical staff, Will
withdraws the his order due as actual of installation exceed £12000.

After one, Will called to ‘BS’ and accept
the offer of £10500 given by Sean with the additional question that whether the
cost also include the on-site training for any new staff which to be recruited
within six months of the commencement of  Contract.

Will was unsure about the his decision (
as was not sure contract to be awarded or not) and cancel his order via
telephone to ‘BS’ (After how many days) but came to know through the secretary
that  recordings on the answering machine
has already been given to Sean, and he will be listening to them shortly, and
she will make a note of his withdrawal wish

Through Scenario it is also determine
that ‘BS’ has a system which triggers automatic messages to their engineering
team when order is placed , and team making primary inspecting the premises of
the Customer for the installation of software. And this routine is carried
after Will order is placed.

In the other part when Vishnu, an
engineer from the BS left the toolbox near to entrance of a pedestrian walkway
and Sarah, A student lived nearby, fell awkwardly and injured her right ankle,
shoulder and neck, Sarah also suffered further injuries to her ribs when being
transport to hospital due to the hard padding on the stretcher and bumpy rude
and as per doctor assessment at least Sarah cannot play football as he was the
member of football team and also will not be able to complete her school
semester.     

 

Area of Law

Formation of Contract which involve
offer, acceptance, counter offer, revocation of offer. Invitation to treat

Legal Issue:

The facts tells us that The Will,
Project Manager of NewDay Construction Limited (hereafter ‘ND’) has approached
and ask Sean, Sales Director at BIMSoft (hereafter ‘BS’) to quote a price for
the installation of BIM generation and Management software in order to full
fill the condition for the company to be fully compliant with the Building
Information Modelling (hereafter’ BIM) Level 2. Sean offered the price £10,500
including the installation of cost of software and appropriate staff training
with the validity of price for one week.

Will also receive an advert by email from
the Auto BIM Ltd for Level 2 compliant at a price £9000, Will call to Auto and
place an order but after further discussion with one of technical staff, Will
withdraws the his order due as actual of installation exceed £12000.

After one, Will called to ‘BS’ and accept
the offer of £10500 given by Sean with the additional question that whether the
cost also include the on-site training for any new staff which to be recruited
within six months of the commencement of  Contract.

Will was unsure about the his decision (
as was not sure contract to be awarded or not) and cancel his order via
telephone to ‘BS’ (After how many days) but came to know through the secretary
that  recordings on the answering machine
has already been given to Sean, and he will be listening to them shortly, and
she will make a note of his withdrawal wish

Through Scenario it is also determine
that ‘BS’ has a system which triggers automatic messages to their engineering
team when order is placed , and team making primary inspecting the premises of
the Customer for the installation of software. And this routine is carried
after Will order is placed.

In the other part when Vishnu, an
engineer from the BS left the toolbox near to entrance of a pedestrian walkway
and Sarah, A student lived nearby, fell awkwardly and injured her right ankle,
shoulder and neck, Sarah also suffered further injuries to her ribs when being
transport to hospital due to the hard padding on the stretcher and bumpy rude
and as per doctor assessment at least Sarah cannot play football as he was the
member of football team and also will not be able to complete her school
semester.    

The facts of question poses that whether
the contract was formed between Will and BS or AS on the basis of element of
contracts.

Moreover,

·        
Whether there is
issue of Counter offer

·        
Whether Will offer
is revoked when he called to Secretary although will message for already
recorded

·        
Sean offered rate is
offer or not 

·        
Advert by email is
offer

·        
Will read the email
and by telephone places the order then Contract is formed or not

·        
When Will placed the
order can he withdraws his order, is there is any binding for Will,

·        
Is will contract is
cancelled by withdrawing the order.

·        
Is offer can be
accepted leaving the message on fax machine (placing of order)

·        
Bid is to be
accepted first then six months are required for the deployment of staff. Its
means duration may reach of 9 months.

Weather Will concluded the contract with
BS and AUTO SOFT (AS)

1.    Is offer can be accepted leaving the message on
fax machine (placing of order)

2.    Bid is to be accepted first then six months are
required for the deployment of staff. Its means duration may reach of 9 months.

3.    Weather Will concluded the contract with BS and
AUTO SOFT (AS)

Missing Part

What were the quotation in result the
price is increased, may be training of staff who will joing after six
month 

Contract formation,

A Contract will come into existence if an
agreement has been concluded. The test whether an agreement has been reached is
depend on external evidence, the court will consider the circumstances of case when
a reasonable man would think that an agreement has been reached and a contract
was created1

A Contract is an exchange of the promises
that constitutes a legally binding agreement between individuals or corporate
entities or a mixture of both. Agreement will be concluded when an offer by one
party (the offeror2)
to another (the offeree), that indicated that offeror willingness to enter into
a contract an certain terms without further negotiations, and accepted by the person
to whom it is addressed (offeree). There must be meeting of minds (consensus in
idem) on all relevant point in each contract.

In the formation of Contract the basic
principal is that there must be an offer, followed by an acceptance meeting the
terms of the offer. A Contract can be made verbally, In writing or by conduct
but in all cases, the proof of a valid offer and acceptance must exist, generally
the England, Wales and Scotland courts does not require contracts to be in
writing.

In order to formed the valid contact, the
following must exist

·        
Offer.

·        
Acceptance which
should meets the offer requirement.

·        
Consideration.

·        
Intention to create
the legal relations.  

An offer must be communicated to the
other party. An offer is a proposal from one party with the intention to
legally bond with definite terms like if it is accepted legally binding
contract will be concluded.

An offer must be distinguished from an
invitation to treat which is mainly an expression of willingness to negotiate.
An invitation to treat is not offer and cannot be accepted in law as invitation
to treat can be described as an invitation to enter into negotiations. The
offer can be accepted or rejected3. An
Advertisement in website, newspaper, a magazine or on TV also comprise an
invitation to Treat4     

An acceptance will b effective only when
it has been communicated to the offeror. There are different mode for the
communication by here it is has been communicated by Telex recording
machine.  The general rule of acceptance
is offer will be accepted when received by the offeror means when acceptance
intimated5

Termination of Offer:

Refusal or acceptance: When a acceptance
exist a contract is formed

Counter offer: Any attempt by the offeree
to introduce a new term will serve as counter offer. The counter offer will
destroy the original offer. 

Other modes:

If the Time is lapsed:

In case of Death

Revocation

The offer can be revoked at any time
before acceptance to be made. The rule applies even when offeror has promised
to keep the offer after open for a particular period of time. Authority has
been established in Case of Payne v Cave 1789 and Routledge v Grant (1828),
in order to effective, the renovation of an offer must be communicated to the
offeree6.The
revocation can be communicated by a reliable third party as per fact
established in case Dickinson v Dodds (1870)

Counter offer:

When an offer will be established, it is
essential to ascertain whether valid contract has been taken place. A counter
offer will occur when the offeree attempts to vary the terms of the offer7 

Information Request

Some request are required some further
information, for example if any person ask’ Can I pay by Cheque, Will you
accept the payment by credit card such information will not treated counter offer.
However if the question pertains to the manner in which contract will be
performed as in Hyde v Wrench. 

 

 

 

Acceptance;

Acceptance of the offer must be
communicated and is only valid if it is communicated by a person who have the
authority to do so (Powell v lee (1908)). The offeree is responsible for
ensuring that acceptance is communicated to the offeror8.  The acceptance must be unconditional and to
be relevant to the strict terms of the offer, if anything differ to be treated
counter offer , following are the four main important areas which should be
considered in relation of acceptance

Oral

Written

Conduct or silence

Electronic Communication    

 

Communication of acceptance is another
objective concept.

A telephone is clearly instantaneous
communication when you get reply to your telephone calls, most probably voice
mail message is the message I am accepting the offer, communication the person
phone they have blinking red light but some time voice not listen to for a day
or two , the kind to be effective commination and what about other caller when
voice mailed is played this is where is the objective principal takes over although
this area of law, application of law  is
relatively undeveloped, In the given scenario we can say that there is communication
for acceptance or its ought to commination its not dismiss like to ignore voice
mail or not to handle it efficiency but yhere is mucg rome for debate around
communication here, the general principal is that acceptance is effective when
its communicated, most cases involve communication when there is indication of
acceptance and also other statement thinks add to qualification of that
acceptance, the draft common frame of reference to one state to any formal
conduct of offree is an acceptance it its indicat, sent to offeror,
silience  cannot be treat as acceptance,
in looking at the torist case the contract will complete when acceptance is
received by the offeror and the contract is made, placed where is the acceptance
is received that in the case of telex commication, the placed whre the contract
the made is the place where is offeror received the notification of acceptance
by the offeree, in this case English company and ditch company instadam
concluded a contract by the telex system of commination where by message by can
be typed on tele printer one country and recorded in other country, an offer
sent by the telex in England offeror to pay 239 pound for 400 ton japnies
caftoos, this was accepted by telex, the contract made in England and leef
should be given, this based on brinkaponlay case .

 

Whether Sean quote was offer or
invitation to treat.

 

1
Smith V Hughes 1871 , Forddell Estates LTD v Delitte 2014 CSOH 55
(Scotland); Bieber V Teathers Ltd 2014 EWHC 4205 (England and Wales)

2 The
Cambridge dictionary definition of Offeror (‘a person, company, or organization
that offers to buy something from another person, company, or organization’),
Offeree (a person or an organization that is offered something, especially the
opportunity to buy or sell shares’).

3  Harvey v Facey 1853 AC 552 ( Harvey(H) sent
a telegraph to Facey(F) saying; ‘will you sell me bumper Hall pen (BHP)
telegraph lowest cash price, F replied’ lowest price for BHP is £900′ H replied’ we agree to pay £900 for BHP’. F would not go ahead H
brought an action against him, H action failed. The court held that F reply was
response to a request for information and not an offer. He was simply stipulating
the price he would sell at if he decided to sell.

4 See
the case Let us consider Partridge v Crittenden 1968 1 WLR 1204 An
advertisement was placed in a magazine advertising bramble finches for sale at
25 shillings each. The defendant was charged under the protection of Birds Act
1954 for offering live wild birds for sale Held; eld: The advertisement was an
invitation to treat, so the defendant was not guilty. He had not ‘offered’ wild
birds for sale. See other cases; Harris v Nickerson 1873 ; Carlill v Carbolic
Smoke Ball Co 1893 1 QB 256

5
Entores Lts V Miles Far East Corp 19552 All E.r. 493, Brinkibon Ltd V Stahag
Stahl1982 1 All E.r 293         

6
Byrne v Van Tienhoven 918800 5 CPD 344 (The defendant posted a letter in
Cardiff on 1 October offering to sell tinplate to the plaintiffs in New York.
The offer was received on 11 October and immediately accepted by telegram. On 8
October the defendants posted a letter of revocation which arrived with the
plaintiff on 20 October. HELD: he contract came into force when the telegram
was sent on 11 October. The letter of revocation could only be effective upon
receipt. The date of receipt was 20 October. This date fell after acceptance
had taken place.

7
Hyde v Wrench 1840 49 ER 132( Case precedent)

8

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