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Continuation of Unit1
Contracts
Tort
Criminal

I
...

Certain domestic and social arrangements, such as an
agreement to meet for dinner, are not intended to
create legal rights and duties and would therefore not
be enforceable by the Courts of Law

Necessary Elements of a Contract
For agreements to be legally enforceable the following
elements or essentials must be present:
• offer and acceptance—an offer must be made by one
party and accepted by another
• consideration—except for contracts under corporate
seal, such as a business partnership agreement, there
must be some reward or compensation in exchange for
acts to be performed
• intention—there must be the intention to create a legal
relationship, not a mere social or domestic arrangement

Necessary Elements of a Contract
•

•

•

•

capacity—the parties must have the legal capacity to
make the contract example age of the involved parties
consent—consent among the parties must be genuine
and not obtained by fraud or duress; drunken , insane,
or under-aged persons are deemed to be incapable of
giving consent
legality of the object—the law must approve of the
terms of the agreement; that is, one cannot legally
contract to perform illegal acts
possibility of performance—it must be feasible for the
contract to be performed
...

Example 1
...
Sister ship
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Void, Voidable and Unenforceable
Contracts
Void contracts - A void contract has no legal effect and
does not give rise to any legal rights
...
A
person could not be found guilty of breaking a contract to
do something illegal
...

Voidable contracts - a contract can be declared void as a
result of misrepresentation under influence or duress
...
So intention was not there to
enter a legal contract
...
However, a valid
contract may also be unenforceable due to, for
example, expiration of a declared limitation period
...
For
example, unlike many other contracts, a contract for
the sale of land must be in writing
...


Terms of A Contract
•

•

•
•

Expressed Terms – these are terms expressed in
writing
...
To be practical in
business, parties need to be able to take some things
for granted
...

Conditions
Warranties

Breach and non- performance
The following may impair a contract:
• mistake
• misrepresentation
• duress
• undue influence
• illegality
...


Remedies for Breach of Contract
The remedies for a breach of contract are as follows:
• an action for damages
• an action for specific performance
• an injunction
...
A contract may specify liquidated
damages that are agreed ahead of time between the contracting
parties
...
These are
not fixed sums, but are calculated by the court in each case
...
The reason they are not agreed beforehand is that the extent
of an injured party’s loss cannot be known before an incident arises
...
Under contracts, people normally owe a duty only to
those with whom they have contracted
...


Duty of Care
Case : Donoghue V Stevenson [1932]
Mrs
...

The friend purchased two bottles of ginger beer, one for
consumption by Mrs
...
The ginger beer was in
opaque bottles
...
Donoghue drank part of the ginger
beer and then, when the remainder of the bottle was
emptied, a decomposed snail slid out into the glass
...

Donoghue claimed that she suffered a severe illness and sued
the manufacturer of the ginger beer
...


Negligence




The word negligence can sometimes apply to a lack of
care in the way a person performs his work or behaves
towards another person (Example it is a way of
committing other torts such as nuisance)
It can also refer to specific tort, the essential element of
which is a failure to take care
...
The most famous definition was
provided by the court in the case Blyth vs
...
(1856):
“Negligence is the omission to do something which a
reasonable man guided upon those considerations which
ordinarily regulate the conduct of human affairs would do,
or doing something which a prudent and reasonable man
would not do
...
A person who owes no
legal duty of care to an injured party cannot be liable to
that injured party for negligence
...


Negligence and Duty to Care
In Donoghue vs
...


Remoteness of Damage and Duty of
Care
In order to understand this principle we have to consider two expressions
reasonable foreseeability and reasonable care
...
Furness (1921):
•
In this case the servants of the charterers of a ship were unloading cargo
from its hold and during the course of the operations they carelessly
allowed a plank to drop into that area
...
Fire arose from this and the vessel was destroyed
...

•
The test laid down by the courts in this case was that if a reasonable man
would have foreseen any damage to the plaintiff as likely to result from
his act, he was liable for all the direct consequences suffered by the
plaintiff, whether these were reasonably foreseeable or not
...
vs
...
Ltd
...
1”
...
During refuelling, through the negligence
of the servants of Overseas Tankship, some fuel was spilt into the water
where it formed a minor oil slick
...
After a period of time sparks from the
welding ignited the oil, which caused damage to the quay
...

•
The Australian court held Overseas Tankship liable on the basis of the
earlier Polemis decision
...
It was held that since the damage was not
reasonably foreseeable it was not a consequence of the negligence for
which a legal liability attached
...
” The doctrine indicates that there is no need to provide
any further detail — the facts of the case are sufficient to find liability
...
The phrase is most often applied to civil tort
claims in which liability is clearly established merely based on a review
of the facts
...
The presumption arises only if (1)
that which caused the accident was under the defendant’s control, (2) the
accident could only occur as a result of a careless act and (3) plaintiff
did not contribute to the accident
...
”

Res Ispa Loquitur
“the thing speaks for itself”





This is a contradictory concept
Before burden of proof was on the claimant or plaintiff
to prove negligence
Under this concept, the circumstance is considered as is
and the burden of proof has been shifted from the
plaintiff to the defendant who has to disprove
negligence (Basically the details of the event
automatically shows negligence therefore defendant
must try to show otherwise
...
Tesco Stores (1976)
• In this case, yoghurt had been spilt on the floor of a
supermarket and an elderly lady slipped on it and was
injured
...
By
the very nature of the accident, the supermarket could
not show that the accident did not occur through any
want of care on their part

Nuisance
Nuisance is that branch of law most closely concerned
with protection of the environment
...
Other areas of nuisance include
obstruction of the highway or access thereto, and the
protection of private rights to the enjoyment of land
...


Public and Private nuisance
Nuisance is divided into public and private, although the
same conduct may give rise to both
...

• A public nuisance is one that materially affects the
reasonable convenience of life of a class of people who
come within the neighbourhood or sphere of its operation
...

Public nuisance include carrying on an offensive trade,
keeping a disorderly house, selling food unfit for human
consumption; and obstructing public highways
...


What is Considered as Nuisance?
Assessing what constitutes nuisance
•

Locality- To constitute a nuisance, the aggravating
circumstance must usually be continuous or recurrent
...

Some single occurrences, such as throwing fire works in the
street or holding an unauthorized pop music festival are
regulated by legislation that specifically makes them a
public nuisance
...
However, on the
complaint of a member of the public, a civil action for an
injunction may be brought
...
Case follows on next slide

Supporting Case
Example case—St
...
vs
...
Among the works situated nearby
were those of a copper smelting company
...
The Court considered the distinction
between nuisance producing material injury to property
and nuisance producing sensible personal discomfort
...
”

Supporting Case
The fact that a person comes into an area where the
“nuisance” already existed is not necessarily a defence of
the nuisance
...
Hall (1838)
• In this case the defendant had set up a tallow chandlery
which emitted noxious and offensive vapours, fumes, smells
and stenches to the discomfort of the plaintiff who had
taken a house near it
...


Remedies
•

•

The principal remedy sought by most victims of nuisance
is an injunction to prevent its continuance
...
B full name for CLC is International Convention on Civil
Liability for Oil Pollution Damage (CLC) 1992 (as
amended)

Offences of Strict Liability
Under strict liability, a person may be found liable for damaging occurrences
even though they have not been neglectful
...
Fletcher (1865)
•
In this case, the defendants wished to construct a reservoir on their land for use in
conjunction with their mill
...
When the reservoir was filled, due to
negligence of the contractors, water flowed through mine shafts on the
defendants’ land
...
There was no direct negligence on the
part of the defendants
...
He succeeded
...
If he does not
and it escapes, he is prima facie answerable for the damage that is a natural
consequence of its escape
...


Cannot be held liable if:



Act of Stranger
Act of God –E
...
storm or peril on sea, spillage

Criminal Law

Principles of Criminal Law
•

•

Crime has been defined as “…wrong doing which
directly and in serious degree threatens the security
or well being of society
...

In many Caribbean jurisdictions, criminal
prosecutions are usually carried out by “the
Crown”—that is, representatives of the state

Elements of a Crime




Actus Reus (conduct)
Mens rea (intent of the mind)
Defences

Elements of a Crime
Before a person can be convicted of a crime, the
prosecution must prove two things, these are:
• a certain event or state of affairs that is forbidden
by the criminal law has been caused by the accused
person’s conduct
...

• this conduct was accompanied by a prescribed state
of mind— usually called in Latin the mens rea
...

However, a child under 12 years old may have
caused actus reus but the legal system does not
consider the child to have the mens rea for this act to
be judged a crime
...

For example, if you throw a stone to frighten someone
away and that stone actually hit and even killed the
person at whom it was thrown, an intention to cause
harm will be imputed
...
DPP a woman set fire to a
house for the purpose of frightening away another
woman in the neighbourhood
...
The court held that the arsonist
intended to kill and was therefore guilty of murder
...


Characteristics of Mens Rea
Recklessness and Negligence

Recklessness
• Recklessness is the deliberate taking of an unjustifiable risk
...

Negligence
• A negligent act results in consequences foreseeable by a
reasonable and prudent person, who would have therefore
avoided the act
...

Example 2:
•

If A points a gun at B and pulls the trigger believing that the gun is unloaded and it goes off and kills B, it follows
that A is negligent with respect to the consequence
...
If a
reasonable man would have appreciated the risk and avoided buying the car D is negligent with respect to the
circumstance of the car being stolen
...


Characteristics of Mens Rea
Blameless inadverture
• Blameless inadverture is a reasonable failure to foresee
the consequence that follows from an act
...
The nature of ulterior intent varies from
crime to crime
...
Most crimes require only basic mens rea to be
demonstrated, and no ulterior intent needs to be shown
...
That is, the accused
may be convicted although blamelessly inadvertent as
to the circumstance of the actus reus
...


Characteristics of Mens Rea
Transfer of Malice
Suppose that A, intending to murder B, shoots and
misses B but kills C, who is standing nearby
...
This is called the doctrine of transferred malice
...
He took off his belt and aimed a blow, which
struck C lightly, but the belt bounded off and stuck P
who was standing nearby, severely wounding her
...

•

Question
If A and B were in a fight, A threw a
stone but missed B and broke a
window instead, is A liable for
prosecution under transfer of malice?

Answer
Example 5:
•
In Pembleton (1874) D was involved in a fight outside a public house
...
He was charged with
maliciously breaking a window
...
There was no intention regarding damaging property
...

Example 6:
•
Suppose that D, in an act of self-defence shoots at O, misses, and
inadvertently kills P an innocent bystander
...
The action in the first instance was justified, being selfdefence
...
However, mistaken views of law may
negate (cancel out) mens rea
...
Inverness Local Authority (1889), D was
acquitted of moving a cow from one district to
another without a licence because he believed
(incorrectly) the two districts had been
amalgamated into one
...
4
Spectrum of Penal offences

Absolute Liability
requiring only actus
reus

Strict Liability and Regulatory Offences
•

•

•

Crimes that do not require intention, recklessness, or
even negligence in the actus reus are known as offences
of strict liability
...

Crimes of strict liability are customarily the creation of
statute
...
These were public nuisance,
criminal libel, and contempt of court
...
Apart from these
instances, the common law always required mens rea
...


Cases of Tort Etc in Maritime Law

Questions???



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