(a) Explain whether Hassan, Paul, Sally, Garfunkel and Mary have enforceable claims in contract law.
Hassan: In the present case, Hassan saw a very rare record in the shop window of Mary. As Hassan was a rare vinyl collector, and knew that the record was worth much more, he walked into the shop and expressed his desire to buy the vinyl. At the same time, Mary also realize that the price had been mentioned wrongly on the record, she refused to sell the record at that price and asked its real price. While Hassan claims that Mary is bound to sell the record at the price mentioned in the shop window, Mary refuses to do so. In order to deal with this issue, the difference that exists between and offered an invitation to treat needs to be discussed. A significant difference is present between the two. Therefore, while the result of the acceptance of the offer is the creation of a valid contract between the parties, the same is not the case with an invitation to treat. Therefore, the law of contract provides that an invitation to treat cannot be accepted by the other party for the purpose of creating a valid contract. An invitation to treat is made with a view to invite offers from the other parties. The law contract provides that the display of goods for sale in a shop window or inside the shop really amounts to an invitation to treat. As a result of this position, the owner of the shop is not obliged to sell the goods. A leading case in this regard is Fisher v Bell (1961). In this case, it was held by the court that the display of a flick knife in the shop window does not amount to the beach of legislation according to which it was prohibited that any offensive weapon should not be offered for sale. In the same way, if a particular product has been displayed for sale by the shop mistakenly at a very low price, the shop owner is not obliged to sell the particular item at that price. Under these circumstances, it can be stated that by displaying their record in the shop window, only an invitation to treat was made by Mary. It was made to invite offers from the other parties. As an offer has been made by Hassan and the same was rejected by Mary, there is no contract between the parties. Hence, Mary is not bound to sell the record at the price mentioned in the shop window. A contract has not been created between Hassan and Mary.
Paul: In this case, Paul had seen an advertisement regarding the sale of the record and made a phone call to Mary regarding the record. Although, Paul was interested in purchasing the record, he wanted to get it at a reduced price. Therefore, Mary told all that she will think about it. On the other hand, Paul sent an e-mail to Mary and told her that if he didn't hear anything more regarding it, he will consider the record to be his. On the other hand, Mary did not reply and forgot about the e-mail. Later on she sold the record to another party through our online shop. Under these circumstances, the issue arises if Mary was bound to sell the record to Paul or in other words, if a contract was created between them. In order to deal with such an issue, the law of contract provides that an offer made to a party needs to be accepted expressly. In this way, the general rule provides that silence cannot be considered as acceptance. Acceptance should take some form of objective manifestation, revealing the intention of the party to which the offer was made, to accept the terms of the contract. In this regard, it was stated by the court in Felthouse v Bindley (1862). The court stated the rule according to which an obligation cannot be imposed on the other party to expressly reject the offer made by the other party. Sometimes this is also called the rule that silence cannot be treated as acceptance (Baxt, Fletcher and Fridman, 2008).
In the present case also, Paul told me that if he didn't hear from Mary anymore, he will consider the record to be his. In this way, Paul was imposing an obligation on Mary to expressly reject the offer. However, this is not allowed under the law of contract. As a result, in this case, also it can be concluded that a contract was not formed between Paul and Mary.
Sally: In this case, the amount promised by Sally was not transferred by her. As a result, Mary refused the part payment and claimed that because said he had not performed her part of the bargain, there was no contract between the parties and she transferred the money back. A contract can be described as an agreement that has taken place between the parties and which creates mutual obligations that can be enforced by the law (Harris, Hargovan and Adams, 2013). In this way, the basic elements that should be present so that it can be claimed that an agreement is enforceable by the law include intention to enter legal relations, offer and acceptance and consideration. In this way, consideration should be supplied by one party in support of the promise made by the other party. If consideration is not present, the promise made by the other party is not legally enforceable. In this regard, consideration can be described as a promise regarding something of value that is given by the party making the promised in return of something in value that is given by the other party (Applebey, 2001). However in the present case, although Sally had made a promise to transfer the amount agreed by the parties, but she failed to do so. As a result, in this case, a valid contract has not been created between Sally and Mary. Therefore, Mary is not bound to sell the record to Sally.
Garfunkel: in this case, Garfunkel had also expressed his desire to purchase the record. Both the parties agreed regarding the price of the record. Therefore, Garfunkel gave the money to Mary and in return Mary gave him the record. However, the next day, Garfunkel made a promise to give the rest of the amount. Therefore the issue is if Garfunkel can be forced by Mary to return the record. However it needs to be noted that in the present case, all the essential elements that are necessary for the formation of a valid contract are present. Hence, it can be concluded that a legally enforceable contract has been created between Garfunkel and Mary. After the formation of the contract, Garfunkel cannot be forced by Mary to return the record. On these grounds, it can be concluded that Garfunkel had the right to keep the record.
Mary: The issue that needs to be decided in this case is if the promise made by Garfunkel to give the rest of the amount can be enforced by Mary. In the present case, a promise had been made by Garfunkel to give more money to Mary for the record. However it needs to be noted that the promise made by Garfunkel was not supported by any consideration. The reason was that Mary had not provided any consideration to support the promise made by Garfunkel. According to the the contract law, every party to the contract is required to give something in return for what they have achieved from the other party. Hence, an agreement is generally not treated as being enforceable by law unless it is supported by consideration (Sweeney, O’Reilly and Coleman, 2013). In order to enforce the promise made by the other party, it is required to be established that something had been given in return of the promise by the other party. The result of this position, under the contract law is that a gratuitous promise that is not supported by consideration is generally not enforceable by law.
It needs to be noted that in the present is also, Mary had not provided any consideration in return of the promise made by Garfunkel. As a result, many cannot legally enforce the promise made by Garfunkel.
(b) Explain whether Mary has a claim in negligence against Peter.
In order to find if Mary has a claim in negligence against Peter, it has to be seen if the essential elements that are necessary for establishing negligence are present in this case or not. For having a successful claim under negligence, the plaintiff is required to establish the following elements.
First of all the defendant should go a legal duty towards the plaintiff
Such legal duty should be breached by the defendant when he had acted or failed to act in a particular way
Due to the action or inaction of the defendant, the loss or injury was suffered by the plaintiff
The harm or the injuries suffered by the plaintiff were the result of the actions of the defendant.
In the present case, Peter had a duty of care towards Mary. This duty was breached by Peter when he failed to properly connect the outlet valve. The loss suffered by Mary was the result of the actions of Peter. Hence, it can be concluded that Mary has a claim in negligence against Peter.
Question two: reflect on the feedback received for TMA 01 and the work done for this TMA.
The feedback provided for TMA 01 had proved to be invaluable in avoiding those mistakes in the present work. For example, it was mentioned in the feedback that, although it is correct to include an introductory paragraph in the essay question, but headings, it should be avoided in a TMA. The same was done in the present essay questions. As a result, this feedback has been avoiding this mistake. Another important information that was provided by the feedback was that most of the European countries have civil law systems, but did not constitute most of the 140 countries which have the civil law systems. The feedback also gave a valuable solution to avoid repeating the same paragraphs. Similarly, it was also stated in the feedback that a single list of references should be mentioned at the end of the TMA and not a separate list of references after each question. In this way, the feedback has provided significant information that will be immensely helpful.
Applebey, G., 2001, Contract Law, North Yorkshire: Sweet & Maxwell Limited.
Baxt, R, Fletcher, K &Fridman, S 2008, Corporations and associations: cases and materials, 10th edn, LexisNexis, Butterworths, Sydney, New South Wales
Harris, J, Hargovan, A & Adams, M, 2013, Australian corporate law, 4thedn, LexisNexis Butterworths, Chatswood, New South Wales
Sweeney, B, O’Reilly, J & Coleman, A, 2013, Law in Commerce, 6thedn.2015, Australian Corporations Legislation, LexisNexis Butterworths
Felthouse v Bindley (1862) EWHC, CP J. 35
Fisher v Bell  1 QB 394