ISCW2J17 Information Systems

Question 1

It has been increasingly difficult for courts to determine whether the postal rule's scope may be broadened to cover more modern means of communication, including such instantaneous communication. Electronic means have advanced to such an extent that they now tend to coincide in time that any legislation dealing with the time lag between sending and receiving a message, such as those governing postal delivery, appears to have been made ineffective or outdated. To form a contract, the offeror must get notification of acceptance from the recipient before a contract may be established by telephone. This differs significantly from the postal norm since the recipient must confirm receipt before a contract can be established. Although the dispatch does not always imply that acceptance has been transmitted, there are some occasions in which it does (Srivastava, 2020).

Accepting an offer via instantaneous means of communication creates a contract, which is then communicated to the other party. Law requires that the indication come in the form of the same external manifestation. When an offer is accepted through telegraph or postal mail, a contract is created when the recipient marks the message as received. The telephone, for example, is exempt from this criterion since it is an immediate form of communication. When an offer is accepted by the offeree and the offeror receives notification of the acceptance, a contract is considered complete in the case of inter-absentees of parties when contact is conducted over the telephone. A binding contract would be created if this indication was made. There are no immediate ways of communication, hence the postal rule does not apply (LexLife, 2020).

Modes of communication such as telex, telephone, fax, and email are considered "instantaneous." Electronic signals, or "microseconds," are referred to as "instantaneous" because in the absence of contracting parties, electronic signals are used to communicate offers, acceptances, and counteroffers to each other in the form of instantaneous electronic signals. Telephony, telex, fax, and email are the four most immediate methods of communication.

Cases involving instantaneous communication have been clarified by the decision in Entores Ltd v Mills Far East Corporation, (1955) 2 Q.B.D. 327, which stated that contracts are only complete when the seller gets a "yes" and the contract is constituted in accordance with the place where it is formed.

It was maintained by the court that, due to the basic character of telephone conversations, the parties are in a sense physically present with one another and that agreements are closed through immediate communication. They asserted that, in circumstances where a contract is to be completed by instantaneous means of communication, the contract would only be drafted when the offeree receives notice of the acceptance of the offer, and that the exemption for non-immediate modes of communication will not be applicable in those cases. It is demonstrated in this case law the importance of immediate notification of an offer.

Question 2

In the United Kingdom, a law is known as an Act of Parliament (sometimes known as a statute). Every Act of Parliament begins as a bill introduced either in House of Commons and the House of Lords, and then passes through both houses. An Act is a piece of legislation that has been signed into law by the monarch after it has been approved by both houses of parliament.

Following the passage of new legislation by Parliament, it is the responsibility of the government to put the legislation into effect. An Act may go into effect immediately, on a certain future date, or in phases, depending on how it is written. It is possible to find out when an Act is set to come into effect by looking at a part of the Act itself that is labelled "Commencement" — this section is usually found among the last few sections of an Act. The Secretary of State of the relevant government department has the authority to decide whether or not to continue in the absence of a specific deadline.

Committees of Parliament are allowed to investigate how well the Government is administering an Act and the effect that new legislation is having regardless of the fact that Parliament is not accountable for implementing laws. This procedure is referred to as "post-legislative scrutiny".

Legislation is a piece of legislation that is enacted by a state entity that has the authority to do so. Statutes are legal documents that contain the provisions of certain laws (or acts). Among these are provincial legislatures, which enact provincial legislation, and city councils, which enact local ordinances. Legislation is a strong source of authority in the legal system (Terziev, et. al., 2021).

An Act of Parliament is a piece of legislation that either establishes new legislation or amends current legislation. A Bill becomes an Act once it has been adopted both by House of Commons or the House of Lords and has received the Monarch's Royal Assent. Acts of Parliament, when taken collectively, refer to this process as Statutory Law in the United Kingdom (Masadeh, and Bashayreh, 2007).

Question 3

The failure of a professional (such as an attorney, an insurance broker or an architect, a real estate agent or a financial adviser) to fulfil the professional responsibilities and obligations for which they were employed by their customers is known as professional negligence. There must be "reasonable care" when a professional performs a service for another person who requires it.

appropriate care is "the degree of caution and worry for one's own and others' security that a usually smart or rational individual could employ under similar circumstances." As a result, to avoid accusations of professional negligence, a professional must employ the same amount of care that other, similarly qualified specialists would use. Foreseeability tests and multifactor tests are two approaches used to determine if the reasonable duty of care was followed. To establish whether or not such a professional might have reasonably predicted that their actions or inactions would cause harm to the consumer, foreseeability tests are applied. A professional's duty of care can be assessed using a variety of methods, the most common of which are multifactor tests.

• The extent of the damage.
• If the professional had adopted a different course of action
• The cost of taking an alternative path of action.
• Whether there were alternatives that were less hazardous or safer.

Evidence that the service supplied fell below the anticipated standards of the professional is required in order for a claim to be successful. An adverse effect on the client or customer, such as financial harm, damage or injury, must have been caused by the service. A claim for negligence will be rejected if the plaintiff cannot demonstrate that they were harmed as a direct result of the professional's actions. Professional negligence damages can be minimised by the claimant taking reasonable efforts to reduce their losses. A "responsibility to mitigate" is the legal term for this situation.

Businesses might suffer financial and public relations damage even if they win a lawsuit alleging professional negligence. Complex and time-consuming lawsuits like these can lead to astronomical legal fees.

That is why it is critical to be proactive and get ahead of possible claims by implementing an effective risk management strategy and purchasing the appropriate business insurance coverage. A professional liability insurance policy, sometimes called errors and omissions insurance, will cover such claims. Claims of carelessness, malpractice, mistakes and omissions while delivering professional services would be covered by this insurance. When a claim for professional negligence is filed, your E&O insurance will cover the costs of legal defence, judgements, and settlement up to the policy's maximum coverage limits (Holyoak, 2020).

Professional liability insurance is a claims-made coverage. As a result, the policy must have been in existence at the time of the occurrence that gave rise to the claim and also at the time you filed your claim with the insurance company, respectively. One of the most typical exclusions from professional liability insurance is the commission of an illegal conduct or the purposeful injury of another person's property by a professional with full knowledge of the consequences (Law, 2021).

Question 4

Contributory negligence can be defined as a lack of knowledge on the part of both parties involved. It is possible for someone to get involved in an accident with another person who is driving on the opposite side of the street if they are not using any brakes while driving. Contributory negligence arises as a result of this. Contributory negligence is a defence offered to the defendant in the event of a personal injury claim, and it prohibits the plaintiff from receiving compensation (Simeone & Miller, 2018).

When the plaintiff fails to use reasonable caution in order to avoid the consequences of the defendant's actions, this is known as "contributory negligence." On the basis of the Latin phrase "Volenti non fit injuria" (which means "will not damage"), this belief is founded (injury sustained voluntarily). People who don't use reasonable caution in order to avoid the repercussions of someone else's carelessness are held responsible for their actions. Generally, in a personal injury lawsuit, if an individual acts carelessly and as a result of his or her conduct causes another individual to be hurt, the negligent individual will be found legally accountable for compensating the injured individual. This type of claim would require the injured party to demonstrate that:

• The negligent individual owed the injured party a duty of reasonable care;
• The negligent individual did not act reasonably or breached his or her duty of care; and
• The other party's injuries were caused by the breach of the negligent individual.
• The other party's injuries were the result of the negligent individual's failure to act.

Actual injuries were sustained, for which the injured party may be able to seek compensation.

When it comes to personal injury cases, contributory negligence may be a complicating factor. When an individual fails to behave in a reasonable manner and as a result suffers injuries, he or she may be held liable for those injuries and unable to get compensation from another party, even if another party was also negligent in causing the accident to occur.

Contributory Negligence: The Fundamental Principles

• If the plaintiff is negligent in exercising reasonable caution in order to prevent repercussions and is found to be the direct cause of the losses, he will not be entitled to any compensation from the defendant.
• If both the plaintiff and defendant have taken precautionary measures and ordinary care to the degree that they both want to prevent such results, the plaintiff will not be allowed to bring a lawsuit against the defendant (Field, 2018).

In this situation, the plaintiff has the duty of proving his or her claims.

The defendant bears the burden of proving his or her case. For the defendant to be successful in establishing contributory negligence, he must demonstrate that the plaintiff shares responsibility for the defendant's negligence, and that the plaintiff failed to exercise reasonable diligence that may have prevented the consequences of the defendant's negligence. As discussed in the case of Great Central Rly. V. Bates, 3 All. E.R, 399, the plaintiff suffered injuries when he slid down the shaft of an elevator shaft after going backwards and opening and stepping through the doors, believing that the elevator would still be in operation. Contributory negligence had been proven against him, and he was consequently unable to receive compensatory damages he had suffered.

References

Srivastava, A., 2020. Nature and Formation of Contract. In Modern Law of International Trade (pp. 81-107). Springer, Singapore.

Masadeh, A.K. and Bashayreh, M., 2007. Contemporary Legal Issues of Contract Formation through Online System. Journal Sharia and Law, 2007(31), p.6.

Field, I.D., 2018. Contributory negligence and the rule of avoidable losses. Oxford Journal of Legal Studies, 38(3), pp.475-499.

Goudkamp, J. and Nolan, D., 2018. Contributory Negligence and Professional Negligence: An Empirical Perspective. Apportionment in Private Law (Hart Publishing 2019), pp.161-195.

Simeone & Miller. 2018. Contributory Negligence: What It Is & How It Could Influence Your Case. Simon & Miller LLP. <https://www.simeonemiller.com/blog/2018/february/contributory-negligence-what-it-is-how-it-could-/>

Terziev, V., Petkov, M. and Dragomir, K., 2021. Sources of European Union law. Available at SSRN 3838631.

Law, C.L., Aspect Of Contract And Negligence For Business.

Holyoak, J., 2020. Negligence and the Professions. In Professional Liability: Law and Insurance (pp. 41-103). Informa Law from Routledge.

LexLife. 2020. Law of Contract: Communication of Offer. <https://lexlife.in/2020/06/06/law-of-contract-communication-of-offer/>

Cases

Entores Ltd v Mills Far East Corporation, (1955) 2 Q.B.D. 327

Great Central Rly. V. Bates, 3 All. E.R, 399.

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