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Lesson 2 Contractual Obligations

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18 views30 pages

Lesson 2 Contractual Obligations

Uploaded by

Gloria Cherotich
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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PROFESSIONAL ETHICS AND LESSON 2:

PRACTICE

CONTRACTUAL OBLIGATIONS

Professional Ethics and Practice


• Course Description:
• Engineering Ethics. Fundamental principles of
engineering practice.
• Rules of practice. Professional obligations.
• Engineering Consultancy.
• The nature and sources of contract. The law of
tort.
• Intellectual property laws.
• Contractual obligations.
• The Engineers Registration Act. Engineers
Professional Societies.
Professional Ethics and Practice
1
• The engineer as a consultant. The engineer as a
contractor.
• Engineer in contractual disputes.
• The role of an engineer in society.
• The Occupational Safety and Health Act and
conditions of work. ISO 9000. ISO 14001. ISO 18000.
• Industrial relations in Kenya: Trade unions, Collective
bargaining,
• Labour laws, arbitration and the industrial court.
• Kenya Business Units: sole proprietorship,
partnership, limited-liability company, corporation,
parastatal and cooperatives.

2
The nature and sources of contract

• Contractual obligations
• Law of Contract
• Law of Tort
• Engineer in contractual disputes

3
Contractual obligations

• A contract is an agreement creating and defining


obligations between the parties
• A contract is an agreement enforceable at law
• Made between two or more persons by which
rights are acquired by one or more to acts or
forbearances on the part of the other or others.
• Every agreement and promise enforceable at
law is a contract

4
Elements of a Contract
• A Contract is a combination two elements
• These are:
-
– An Agreement, and
– An Obligation

5
Elements of a valid contract
• The Essential Elements are:-
– An offer or proposal by one party and
acceptance of that offer by another party
resulting in an agreement.
– An intention to create legal relations or an intent
to have legal consequences.
– The agreement is supported by a lawful
consideration
…. Essentials
6
– The parties to the contract are legally capable of
contracting.
– Genuine consent between the parties.
– The object and consideration of the contract is
legal and is not opposed to public policy.
– The terms of the contract are certain
– The agreement if capable of being performed i.e.
it is not impossible if being performed.

7
Validity Conditions for Contracts

• An agreement
• It’s based on the genuine consent of the
parties
• Supported by a lawful consideration
• Made for a lawful object
• Between competent parties.

8
The Law of Tort

• Definitions
• The Law of Tort
• Categories of Tort
• Liability, defences, and remedies
• Particular Cases

9
Definitions

• Common Law - is law developed by judges


through decisions of courts and similar
tribunals (as opposed to statutes adopted
through the legislative process or regulations
issued by the executive branch of
government)

10
The Tort Law
• A tort, in common law jurisdictions, is a civil
wrong.
• Tort law deals with situations where a person's
behaviour has unfairly caused someone else to
suffer loss or harm.
• A tort is not necessarily an illegal act but causes
harm.
• Tort law is different from criminal law, which
deals with situations where a person's actions
cause harm to society in general.
11
. The Law of Tort

• The law allows anyone who is harmed to


recover their loss.
• A claim in tort may be brought to Court by
anyone who has suffered loss.
• Criminal cases tend to be brought to Court by
the state
• Tort may be defined as a personal injury; or as
"a civil action other than a breach of contract."
.. Law of Tort
12
• One who commits a tortious act is called a
tortfeasor
• A person who suffers a tortious injury is
entitled to receive compensation for
"damages", usually monetary, from the
person or people responsible — or liable —
for those injuries
…The Law of Tort
• Tort law defines what is a legal injury and, therefore,

13
whether a person may be held liable for an injury
they have caused. Legal injuries are not limited to
physical injuries. They may also include emotional,
economic, or reputational injuries as well as
violations of privacy, property, or constitutional
rights.
•
• Tort cases therefore comprise such varied topics as
auto accidents, false imprisonment, defamation,
product liability (for defective consumer products),
copyright infringement, and environmental pollution
(toxic torts), among many others.
….law of Tort
14
• In much of the common law world, the most
prominent tort liability is negligence.
• If the injured party can prove that the person
believed to have caused the injury acted
negligently – that is, without taking
reasonable care to avoid injuring others –
tort law will allow compensation.

15
Categories of Torts

• Four Elements of a Tort


• Determination of liability for negligence

16
4 Elements of a Tort

• The presence of a duty


– In general, duty is defined as the responsibility to
behave with a reasonable level of care
• The breach of the duty
– If the defendant failed to live up to his or her
duty to behave with a reasonable level of care,
he or she has committed a breach •

17
...4 Elements of a Tort

• The presence of an injury


– You must have been injured in some way
• The breach of duty caused the injury
– The failure to behave responsibly must have
caused your injury

18
Elements in determining the liability for
negligence
• The plaintiff was owed a Duty of care
• There was a Dereliction or breach of that duty
• The tortfeasor Directly caused the injury [but
for the defendant's actions, the plaintiff would
not have suffered an injury].
• The plaintiff suffered Damage as a result of that
breach
• The damage was not too remote; there was
proximate cause.
19
Duty of Care

• In tort law, a duty of care is a legal obligation


imposed on an individual requiring that they adhere
to a standard of reasonable care while performing
any acts that could foreseeably harm others
• Duty of care may be considered a formalization of
the social contract, the implicit responsibilities held
by individuals towards others within society. It is not
a requirement that a duty of care be defined by law,
though it will often develop through the
jurisprudence of common law.
20
… Duty of Care
• There are two ways in which a duty of care may
be established:
– the defendant and plaintiff are within one of the
'special relationships'; or
– outside of these relationships, according to the
principles developed by case law.
• There are a number of situations in which the
courts recognise the existence of a duty of care.
These usually arise as a result of some sort of
special relationship between the parties.
Examples include one road-user to another,
21
employer to employee, manufacturer to
consumer, doctor to patient and solicitor to
client
Breach of that Duty
• Dereliction of duty generally refers to a failure
to conform to rules of one's job
• Negligence is a tort which depends on the
existence of a breaking of the duty of care
owed by one person to another

22
• The standard action in tort is negligence. The
tort of negligence provides a cause of action
leading to damages, or to relief, in each case
designed to protect legal rights, including those
of personal safety, property, and, in some
cases, intangible economic interests.

23
Types of Torts

• Intentional torts
• Statutory torts
• Nuisance
• Defamation
• Economic torts

24
Liability and Remedies

• Vicarious liability (e.g. employee/employer)


• The main remedy against tortious loss is
compensation in 'damages' or money.
• For a continuing tort restraining the
continuance or threat of harm could be
sought
Types of Cases for duty of care
• Products
25
– Manufacturers owe a duty of care to consumers
who ultimately purchase and use the products.
• Land
– Duty of care to trespassers, visitors and
"recreational users" can be restricted by the
occupier or owner. But must give prominent
notice
• Business
– Concept of “good faith” in performance of
decision making and supervisory functions
Defences
26
• Consent
– Typically, one cannot hold another liable in tort
for actions to which one has consented.
– This is frequently summarized by the phrase
"volenti non fit injuria" (Latin: "to a willing
person, no injury is done" or "no injury is done to
a person who consents").
– Notices at construction sites
…Defences
• Contributory negligence
27
– mitigatory defence or comparative negligence
– a plaintiff/claimant's award is reduced by the
percentage of contribution made by the plaintiff
to the loss or damage suffered
• Illegality
– no right of action arises from a despicable cause
– If the claimant is involved in wrongdoing at the
time the alleged negligence occurred, this may
extinguish or reduce the defendant's liability.

28
Thank you Questions

& Answers

29

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