BUSINESS LAW EXAM
A - 40 marks
answer 8 out of the following 10 questions (10-15 lines on each) What is a tort?
The law of tort is an area of the law that often only becomes relevant to people and businesses after the happening of a loss making event. This loss can be a physical or economic loss. A tort is considered to be a civil wrong other than a claim for a breach of contract .The Plaintiff must prove on the balance of probabilities that their version of the facts is more believable. Tort law is concerned with remedies and provides compensation for the injured party: Usually damages and/or an injunction
The modern law of tort operates on the basis of remedies to persons for the harm suffered by the conduct of others. explain the main differences between an action based in tort and an action based in contract law Both commission of a tort and the breach of a contract can result in a civil wrong that will provide similar remedies for a plaintiff – compensation. In some cases the two actions are indistinguishable. The main difference between the two is that Contract Law is concerned with the enforcement of promises, and compensation if there is a breach of contract. Tort, on the other hand, is concerned with the protection of rights. These rights are mostly derived from case law and include the right of protection to one’s person, reputation, property, business and economic interests. TWO MAJOR DIFFERENCES:
Contract law Tort law
Promises Concerned with having the promises of others performed Interests covered are wider, covering both person and property Agreement While contractual duty mainly comes from agreement of the parties, it can be imposed Tortious duty is imposed independently of consent of the parties, through rights and duties may be varied contractually What rights are protected by the law of torts?
. The range of interests which the law of torts protect is very wide and includes: Liability for breach of duty to take reasonable care (Ch. 8) Liability arising out of occupation or possession of property, negligence/private nuisance (Ch. 9 & 10) Direct interferences with person or property, trespass (Ch. 10) Liability for misrepresentations, defamation (Ch. 10)
Interests in economic relations, breach of contract, conspiracy, intimidation (Ch. 10) Fraudulent misrepresentation, dececit (Ch. 10)
Breach of statutory duty, Generally involving motor traffic an work health and safety issues Explain the need for legal intention in contracts
The fact that parties have reached an agreement doesn’t necessarily mean that a contract has been formed. For a contract to be formed the parties must also intend that what they agree to will be legally enforceable in a court of law should it go wrong. In Ermogenous , the high court affirmed that intention to create an enforceable agreement is an essential precondition to contractual liability. For an agreement to be enforceable, it has to be established that the parties, expressly or impliedly, intended their agreement to have legal consequences, which will be recognised in a court of law. It is important to note that if intention cannot be established, even if all the other elements are present, there can be no contract. Describe the effect of a lack of intention to an agreement
The effect of a lack on intention to an agreement means that there cannot be a contract. Distinguish between expressed and implied intention
Contracts rarely expressly refer to intention
Where they do, they are:
Invariably expressed in the negative,
via terms clearly and explicitly stating parties’ intentions Cannot expressly exclude the jurisdiction of the courts
Agreements fall into two categories:
Agreements of a social or domestic nature
Agreements of a business or commercial nature
Traditionally, intention was decided by rebuttable presumptions of fact (Fig. 14.1): Objective test applied (Fig. 14.2)
But see ‘Ermogenous’...
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