Advice asked further to include cost for
Advice to Will for the status of contract withBIMSoft;Advice to Will need to analysis the rule whether acceptanceof a counteroffer through conduct will form a legally binding contract where therequest of withdrawal the counter offer has been made. Sean, director of BIMSoft (BS) made an offer to Will,project manager of NewDay Construction Limited (ND) for installation of BuildingInformation Modelling (BIM) Level 2 and appropriate staff training at a priceof £10,500, the offer was opened for one week. An offer is an expression ofintention to conclude a contract under specific conditions without furthernegotiation and only acceptance is required for a binding agreement,1 an offer can be revokedbefore an acceptance taken place whether or not the offer was opened for acertain period.2In Powell v Lee 3, it was established that acceptance should be communicated and a valid acceptance is that which is communicated by authorized person, usually director is the authorized person who can enter into legally bind contract on behalf of companies with third parties.4 It is presumed that Mr. Will, Project Manager has a capacity to enter in the contract on behalf of his company, ND.
Will accepted BS’s offer within the period in which the offer was opened for installation of BIM level 2 with appropriate staff training through placing an order, recorded on answering but asked further to include cost for on-site training of new staff to be recruited by ND within six month from the commencement of contract. Acceptance must be conveyed reflecting the terms of the offer.5 Will’s request to include cost for on-site training of new staff to be recruited by ND within six month from the commencement of contract seems not mirroring the terms of BS’s offer and would not be a valid acceptance to form a legally binding contract.
An acceptance not mirroring the offer’s term shall be considered as a counter offer which will destroy initial offer and acceptance or rejection of the counter offer is subjected to offerer, 6 who made initial offer. Will’s request for inclusion of to cost for on-site training of new staff to be recruited by ND within six month from the commencement of contract is a counter offer which destroyed the initial offer of BS, now it is BS discretion whether accept will’s counter offer or reject.Mr Will placed an order, a counter offer throughrecording on an answering machine, an acceptance or a counter offer made throughelectronic communication to be considered as a valid acceptance or counteroffer at the time when it was taken place.7Mr Will’s counter offer placed through recording on answering machine that wasnot listened by the concern person will be considered a valid counter offer toform legally binding contract and will not be a matter to the validity of acounter offer recorded on answering machine whether it is listened or not bythe concern person.
8Due to uncertainty in the rightness of decision,order to BS for installation of BIM level 2, Will telephoned to BS forwithdrawal of his counter offer and was informed that recording of his orderhad been passed to concern person, however, request for withdrawal will also benoted. An offer or counter offer can be revoked at any time before itsacceptance taken place,9Will’s request for the withdrawal of counter will be considered valid if thereis no acceptance taken place form the BS.BS’s system trigger the message automatically toengineering team on placement of customer’s order and they send their engineerto customer’s premise for preliminary checking the suitability of premises forinstallation of software. Following the placement of Will’s order systemautomatically sent message to the engineering team and they sent theirrepresentative to Will’s premises as usual. Performance in response to an offeror counter offer will amount a valid acceptance to form a legally bindingcontract.10 Performing a visit of BSengineering team to Will’s premises for preliminary checking of suitability ofinstallation of software amounted a valid acceptance of Will’s counter offer throughconduct that formed legally bind contract which include Will’s additional termfor training of new staff to be recruited within six month from commencement ofcontract.
An offer made by BS to Mr Will for installation ofBuilding Information Modelling (BIM) Level 2 including appropriate staff trainingat a price of £10,500that was kept open for one week. Mr. Will responded theoffer within stated period through electronic means of communication and askedfurther requirement to be included in price of offer that could not amounted avalid acceptance due to change in terms of offer but established a counteroffer, a counter offer either can be rejected or accepted by the offeree. Subsequently, due to suspicious state of mindfor the counter offer, Will requested to BS for withdrawal the counter offer.
An offer or counter can be revoked if its acceptance not taken place, BSengineering team conducted performance as they received the message triggeredautomatically from BS system following the placement of an order that amounteda valid acceptance of Will’s counter offer. Consequently, Acceptance has been taken place by the BSbefore the withdrawal request of Will’s counter offer thus Will’s request forwithdrawal cannot be considered. A legally binding contract has been concluded betweenNewDay Construction Limited and BIMSoft based on acceptance of Will’s counteroffer for installation of BIM Generation and Management software compliant withBIM level 2 at a price of £10,500. The price shall include the cost forinstallation, appropriate training to the staff of New Day construction and anynew staff to be recruited within six month from the commencement of contract.
Mr Will is working with NewDay Construction Limitedin the capacity of Project Manager. Usually, Directors are authorised to enterinto contract with third parties on behalf of companies. The contract can beset aside if it is established that Mr. Will does not has legal capacity toenter into a legally bind contract with third party on behalf of the company. Advice to Will for the status ofcontract with AutoBim, Advise to Willneed to analysis the rule that whether an advertisement would amount a validoffer for acceptance to form a legally binding contract.
In the givenscenario, Mr Will, project manager of NewDay Construction Limited (ND) receivedan advertise through email from AutoBIM (AB) that stated that AB can offercutting edge BIM software to contractors seeking compliance with level 2 BIM atthe price guaranteed not to exceed £9,000. In Partridge v Crittenden11It ispointed out that if an advertisement is an offer than anyone who replies theadvertisement would accept it and would be entitled for the advertised item, tobe assumed that advertiser does not have unlimited supply, this cannot be whathe intended, therefore, an advertisement will be regarded as an invitation totreat based on the concept of party freedom. Languageof an advertisement would help to distinguish its status whether it is aninvitation to treat or a valid offer to conclude a legally binding contract. An advertisement would amount an offer if its language andnature of transaction doesn’t expect and require notice of acceptance but forthe performance.12 In Gibson v ManchesterCity Council13,a letter addressed to tenants by the corporation that contain the statementthat the corporation “may be prepared” to sell the house to you at certainprice, if willing to purchase, complete and return the form, process was completed but no contract was concluded dueto wording of letter that regarded as invitation to treat not an offer.
In ourcase, the advertisement states that AB can offer cutting edge BIM software to contractors seeking compliancewith level 2 BIM at the price guaranteed not to exceed£9,000, will be regardedas an invitation to treat. An advertisements would amount an offer if it limits theadvertised item with some terms, in Lefkowitzv Great Minneapolis Surplus Stores14 theadvertiser stated in advertise that 3 fur coats with regular price of each100$to be sold at discounted price 1$ of each to first 3 customers at certainvenue, advertise was regarded an offer. In our case, theadvertisement would amount an offer if it states that AB offer cutting edge BIM software to contractors seeking compliancewith level 2 BIM at the price guaranteed not to exceed £9,000.
Once it isestablished that an advertise of AB received through email is a an invitationto treat, Will’s order placed over telephone will be regarded an offer.15 Anoffer is expressing willingness to contract under certain conditions, which isintended to be binding once the person being addressed has accepted it.16 Anoffer should be communicated to the other party and it cannot be amounted as anoffer if that party doesn’t know it.17 Anoffer executed through electric communications will be a valid offer,18 Will’stelephone to AB for placing of an order in response to an invitation to treatwill be a valid offer.Following theWill’s offer made over telephone, one of technical staff of AB revealed infurther discussion that actual cost of installation of AB’s innovative level 2BIM software shall not be matched with offer i.
e. £9000 and shall be exceededfrom £12,000. An offer contains a complete commitment to take immediate actionwithout further negotiations.19 Changein terms of an offer, received for acceptance will be considered as a counteroffer that destroys initial offer and a counter offer can either be accepted orrejected.20Cost of installation for AB’s cutting edge level 2 BIM software varied from theWill’s offer which will be a counter offer and shall be subjected to Will’sacceptance or rejection. An advertisementreceived through email will be considered an invitation to treat which is apre-offer communication, an invitation to enter into an attempt to seeknegotiation, or expression of interest.
Placing an order, over telephone to ABto in response to their advertise “invitation to treat” received in email, isan offer that is an expression of intention to contract under certainconditions, which is intended to be binding as soon as it is accepted by theAB. Acceptance must match to strict term of an offer and must not beconditional, any deviation will be considered as a counter offer, change inprice exceeding from 12,000 for installation of AB innovative softwarecompliant with level 2 BIM will not be valid acceptance but a counter offerthat destroys Will’s initial offer of £9,000, counter offer can either berejected or accepted and Will rejected counter offer of AB.A contract isan exchange of commitments between two or more parties that form a legallybinding agreement, agreement is reached when a recipient accepts an offer orcounter from one person who intends to conclude a contract under certainconditions without further negotiation. Consequently, Will offered to AB inresponse their invitation to treat for cutting edge BIM software compliancewith level 2 BIM which was rejected by the counter offer of AB, Will did notaccept counter offer of AB thus there is no contract concluded between NewDayconstruction and AutoBIM. Advice to Sarah for her potential legal claim againstvarious tort related issues; Advice to Sarah for herpotential legal claim against tortious issues will require to analysis the ruleof duty of care, breach of a duty of care causation and damages.In the given scenario, Vishnu,waiting in adjacent car park and Sarah heading to entrance of pedestrianwalkway, both are road users that is one of established duty situation in whichthe existence of a duty of care to one road user to another is recognised underthe neighbour principle.21Neighbour principles22is that reasonable care must be taken by someone for avoiding acts or omissionsthat can reasonably be foreseen may injure neighobur, neighobur are personsthose are affected very closely and directly by someone’s acts or omissionsbeen ought to have in consideration it seem affected when turning someone’smind towards acts or omissions that are considered in question. Being a roaduser, Vishnu must take reasonable care while leaving toolbox close to entranceof footpath to avoid injure to other road users.
Vishnu is working as an engineerwith BIMSoft will be considered a reasonable person,23being a road user who owed duty of care to other road users, left a toolboxclose to the entrance of a pedestrian walkway,a standard of care is requiredwhere risk of damages likelihood of injury,24leaving a toolbox without considering reasonable care will be regarded as abreach of duty of care.Sarah whilst heading topedestrian walkway tripped on the toolbox, fell awkwardly and injured her rightankle, shoulders and neck. Sarah would not have fallen but for tripping on thetoolbox,25 left close to theentrance of a pedestrian walkway is the cause that harmed the Sarah and injuredher right ankle, shoulders and neck. It is presumed that Sarah has beentransported to hospital through ambulance, on the way to the hospital additionalinjuries suffered to ribs due to hard padding on the stretcher and the bumpyride of ambulance. An intervening act will not be considered as novus actus interveniensif it was foreseen.26Hard padding is usual to stretchers and bumpy ride of ambulance is likely totransport the patient to the hospital in a possible short time, both inventingacts are foreseeable thus the additional injuries suffered due to hard paddingof stretcher and bumpy ride did not break the chain of causation and will notbe regarded as novus actus interveniens.
Vishnu, BIMSoft’s engineer will remainliable for the negligence.Vishnu, one of theengineers of BIMSoft, will be regarded as an employee of BIMSoft rather than anindependent contractor, while performing his duty, visiting the premises of thecustomer for preliminary check on suitability of the premises for installationof software, he left toolbox close to the entrance of a pedestrian walkway thatharmed another road user, the employer shall be vicariously liable forperformance of authorised act by hisemployee in an unauthorised manner,27visiting costumer premises for preliminary check on suitability of premises forinstallation of software is scope of Vishnu employment but performed incareless manners, BIMSoft will be vicariously liable for negligence of hisemployee, Vishnu that caused injuries to Sarah. Sarah, at the age of twenty,playing for professional football team and studying in the university will needat least three month recovery time due to injuries suffered from negligence ofVishnu, an employee of BIMSoft. If Sarah succeeded in tortious claim againstVishnu as an employee of BIMSoft, BIMSoft will be vicariously liable for thedamages being suffered by Sarah, damagesfor the injuries will include pecuniary loss for pre and post trial period, andnon- pecuniary loss that covers already experienced or to be experienced infuture.28Damages resulted from injuries due to contributory negligence of claimant’s ownsafety to the injury or loss may be reduced up to fifty percentage,29Sarah should have taken reasonable care for her personal safety and watched outthe toolbox before entering the pedestrian walkway, fifty percent of damageswould be waived off form BIMSoft liability due to contributory negligence ofSarah. Essential deductions forsocial benefits30 and insurance31to be made whilst measuring the damages and there should not be double recoveryin all cases.
Under pecuniary damages,Sarah would claim loss of earning as a player of professional football,32loss of schoolwork for her second semester,33expenditure for medical.34Potential claim for damages suffered under non-pecuniary would be for sufferingand pain,35 loss of expectation andamnesty of life.36Sarah and Vishnu both areroad users and bear the duty of care to each other, Vishnu, a reasonable personleft toolbox close to the entrance of pedestrian amount to negligent in duty ofcare that harmed another road user, Sarah, injured her right ankle, shouldersand neck by tripping on the toolbox. She suffered additional injuries due tohard padding of stretcher and bumpy ride of ambulance whilst being transportedto the hospital. Additional injuries due to hard padding of stretcher and bumpyride were foreseen thus could not establish a novus actus interveniens. BIMSoft will be regarded as vicarious liablefor damages suffered by the Sarah due negligence of its employee, Vishnu anengineer of BIMSoft who committed tort during performance of his jobresponsibilities in a careless manner. If Sarah succeeded in her potential legalclaim for damages of pecuniary and non- pecuniary loss against BIMSoft undervicarious liability, her fifty percent damages may waive off due to hernegligence in her own safety.
1Gibson v Manchester City Council 19791 WLR 294 2Routledge v Grant (1828) 3Car& P 267, 172 ER 4153 T Hough, Optimize Contract Law (2ndedn, Routledge2017) ch 1, 164 Companies formed under Act 19965Entores v Miles Far East Corporation 19552 QB 327 6Hyde v Wrench (1840) 3Beav 334, 49 ER 1327Entoresv Miles Far East Corporation(1955) 2 QB 327.8Brinkibon Ltd v Stahag Stahl 1983 2AC 34.9Payne v Cave (1789) 3 TermRep 148, 100 ER 502.10Brogden v Metropolitan Railway (1877) 2 App Cas 666.
111968 1 WLR 1204.12 Carlill vCarbolic Smoke Ball Co 1893 1 QB256.131979 1 WLR 294.14 (1957) 86 NW 2d 689.
15 Gibson v Manchester City Council 1979 1 WLR 294.16 GuenterTreitel, The Law of Contract (10edn, Sweet &? Maxwell 1999).17 Williams v Carwardine (1833) 4 B&Ad 621, 110 ER 590.18 Entores v Miles Far EastCorporation (1955) 2 QB 327.19 M Furmston, Cheshire, Fifoot and Furmston’s Law of Contract (16th edn, Oxford 2012)43-44.20 Hyde v Wrench (1840)3 Beav 334, 49 ER 132.21 E Finch, Tort Law (6th edn, Pearson 2017) ch 1,522 Donoghuev Stevenson 1932 AC 562. 23 Hall v Brooklands Auto Racing Club 1933 1 KB 205.
24 Miller v Jackson 1977 QB 966.25 Cork v Kirby MacLean Ltd 1952 2 All ER 402. 26 Lamb v Camden London Borough Council 1981 QB 625.27 CenturyInsurance v NI Road Transport Board 1942 AC 509. 28 Bermingham , Tort law – Directions, (5th edn,Oxford University Press 2016) ch 18, 47029 Porter vStrathclyde Regional Council 1991 SLT 44630 Social Security Provisions (Recovery of Benefits) 1997 apply31 Bradburn v GW Rly (1874-75) LR 10 Ex 1.
32 British Transport Commission v Gourley 1956 AC 185.33 Daly v General Steam Navigation Co 1981 1 WLR 120.34 Shearman v Folland 1950 2 KB 43.
35 Wise v Kaye 1962 1 QB 638.36 H West and Son Ltd. v Shepherd 1964 AC 326.