Elements of a contract
Definition: An agreement between two or more persons with legal ramifications.
Essential elements of a contract
1. Offer and acceptance- an offer is an invitation to get into a contract. An
acceptance means agreeing with that invitation.
• The acceptance needs to be within the time frame, mode of
communication made by the offer.
• Postal rule: when you write the letter and drop it to the box, you have
accepted the invitation regardless the letter reaches or not.
• An offer can be to a specific group or person.
2. Legality: it cannot be related to any criminal activity
3. Consideration: what is the benefit you are getting in your contract that can be
accepted by the law. There must be some elements of consideration.
4. Meeting of the minds: you need to agree what you want in the contract. You
need to be clear.
5. Intention to create legally binding relations.
6. Capacity: you must have the right capacity for you to contact
• Financial capacity
• Mental capacity
• Minors are not allowed to enter into a contract because they lack the capacity
to get into that contract however, they may get into the contract in provisions
of necessity.
• Authority
Vitiating factors of a contract
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1. Misrepresentation:
Innocent misrepresentation: the person making the statement had a belief that
the statement was true
Fraudulent: the person who is making the statement is aware that it is false
and goes ahead with the intention that you will believe that the statement is
true.
Negligent misrepresentation: refers to a situation whereby the info you are
getting it from someone in an industry which is false.
Innocent: made in the wholly innocent belief that it was true.
2. Duress: a threat to life or physical impairment. You need to prove this
and it must be real.
3. Undue influence: it is closely related to duress. Robs you the free will to
get into a contract. You can be asked for things that are not related to
the contract. It is not something to be considered in the contract.
4. Illegality: if there is a change in law this may cause your contract to be
illegal.
5. Mistake: if one of us is mistaken about the subject matter there can be
no contract.
• Unilateral: applies itself where only one party has mistaken itself.
• Mutual: where both parties are wrong about the subject matter.
• Common: both parties being wrong about the existence of the
subject matter.
6. Discharge/termination of a contract
Termination of a contract
1. The impossibility/ frustration of the contract: when the subject matter
isn’t available or no longer in existence.
2. If an offer isn’t made to you, you’re not able to accept it.
3. Unsound mind
4. Operation of the law: you got into a contract when the subject was part
of the law then it changed.
5. Violation: of the terms/breach of contract: certain things that are agreed
upon that are not done. The consideration could not be realized on
your end. This is based on the innocent party.
6. Express agreement
7. Performance of the contract
8. Lapse of time: sometimes contracts are time based.
Remedies of breech of contract
1. Specific performance
2. Injunction: a court order which directs an individual not to do anything
which may be detrimental to the other party.
3. Damages: monitory compensation that you receive for loss you have
suffered.
INNKEEPER
An individual who provides accommodation for guests in exchange for a reasonable
compensation. An inn is defined as a place where lodgings are made available to the
public for a charge, such as a hotel, motel, hostel, or guest house. A guest is a transient
who receives accommodations at an inn. Transiency being the major characteristic
distinguishing him or her from a boarder. The innkeeper is the person who on his own
account is carrying on the business of an inn. In other words, he is the proprietor of the
establishment.
A boarding house is for the entertainment not of transient guests, who must find food
and shelter at once, but of more or less permanent occupants, who may at their leisure
make bargains with their host. Lodging and apartment houses differ from inns in that
they furnish lodging only, and not food. A restaurant differs from an inn in that it
furnishes only food, and not lodging or shelter.
DUTIES OF THE INNKEEPER
1. The duty to receive guests
The innkeeper is under public duty to receive travellers as his guests. It’s a common law
duty to provide accommodation to all seeking it. It’s a duty to provide accommodation
at the hotel without any prior contract with the guest who seeks accommodation. A
guest's arrival at a late hour or during the night is not a reasonable excuse for refusing
accommodation.
Exceptions to this duty
However, innkeepers the right to refuse or deny accommodations to anyone:
1. Unwilling or unable to pay for a room or other lodging establishment privileges.
2. Visibly under the influence of drugs or alcohol or creating a public nuisance i.e.
Intoxicated and disorderly individuals.
3. The innkeeper reasonably believes the guest will use a room or the facility for
an unlawful purpose.
4. The innkeeper reasonably believes is bringing in something that creates an
unreasonable danger or risk to others e.g. carrying guns, knives, or other
weapons and dangerous animals.
5. Whose use of a room or accommodation would violate the facility's maximum
capacity i.e. if there is no available room
6. Criminals and people of bad reputation: a person widely publicized in the press
as a common gambler, a ‘gangster’, a ‘mobster’, a ‘prostitute’, an ex-convict etc.
7. Unclean (not bathed) and unkempt individuals.
8. Individuals suffering from contagious diseases.
9. The individual is too young. Inns that serve alcoholic beverages may be required
by law to prohibit individuals under a predetermined age from entering their
facilities. Remember capacity for young persons under law of contract.
Hotels should use care when excluding people, there are penalties for wrongful refusal.
The consequences of wrongful refusal: The excluded guest can sue hotel for damages
including the expenses of staying elsewhere. One cannot exclude from service due to
race, colour, national origin, religion, gender, marital status, and disability, sexual
orientation. That would expose hotel to discrimination suit.
2. The duty to provide adequate facilities
He must be prepared to shelter and entertain guests. It includes the duty to provide
adequate facilities. Such facilities include an inn in proper repair, and of sufficient size
to supply the demand; sufficient stores of wholesome food and comfortable furniture;
and enough servants to perform the requirements of service and protection to the guest.
However, a hotel is only bound to supply such reasonable and proper accommodation
for guests and their luggage as the hotel has. A guest cannot insist on a particular room,
and it is the hotel's right to allocate rooms to guests.
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Occupiers’ ability is the owner of the premises. They need to be responsible for
the people who come to the establishment.
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Must be provided security.
3. Duty to Provide Refreshment
There is a common law duty to provide refreshment to every person seeking
accommodation. An establishment which refuses refreshment without lawful excuse
may be sued for damages. This duty is to provide reasonable refreshment at reasonable
prices at any hour of the day or night and an innkeeper may only refuse to do so if
they have a reasonable excuse.
What amount to ‘reasonable’ refreshment will vary according to the time of day or
night when the guest calls at the hotel. E.g. midnight cannot expect a 3-course meal.
4. Duty to safely deal with a guest’s property
An innkeeper is under a strict duty to look after the property of his/her guests. The
innkeeper is an insurer of the guest's property which might be lost or stolen while the
guests are on the premises.
The innkeeper faces the prospect of unlimited liability even if they are without fault.
The duty applies to all property within the precincts of the Inn including inn garages,
swimming pools and car parks.
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Safe needs to function in the way it’s supposed to.
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You have the responsibility to care for the belongings of the guest and return it
to them in the right condition.
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Bailment and limen- research.
Exceptions to this duty
An innkeeper will not be liable for the loss or damage of a guest's property if the
damage or loss has been caused by:
a) an act of God, i.e. forces which could not have been reasonably foreseen or
guarded
against, such as an earthquake or extraordinary weather;
b) an inherent fault or defect in the property, such as faulty packaging of perishable
goods;
c) actions of the enemies of the state; or
d) the misconduct or negligence of the guest who suffers the loss.
Innkeepers should ensure that they adequately insure themselves against the risk of loss
or damage to a guest’s property. Although the innkeeper is not the owner of the
property, they have an insurable interest arising from their potential right of lien over
the guest's property.
5. Duty to take reasonable care for guest’s safety
Innkeepers only have a duty to take reasonable care for the safety of their guests. They
do not insure the safety of their guests, only their property. Their liability for injury is
therefore fault based i.e. not strict. This means that they have a duty to take reasonable
care for the safety of their guests and that they are warranting the premises as safe for
the guest’s use.
An innkeeper's responsibility to his guests is limited to the exercise of ordinary or
reasonable care. In order to charge the innkeeper with liability for injury to the person
of his guest, negligence on the part of the innkeeper must be shown in connection with
the very circumstances which produced the injury.
6. Duty to look after the guest’s means of transport
The common law has always imposed a duty on the innkeeper to look after the guest’s
means of transport and has made the transition from horse to car with little difficulty.
As a result, innkeepers have a duty to provide accommodation for the guest’s car. This
is usually discharged by way of adequate on-site car-parking.
RIGHTS OF THE INNKEEPER
1. Right to set rules
The innkeeper has a right to set the minimum standards that a guest must comply with
if s/he wishes to stay at the establishment. However, they must be conveyed to the
customer as soon as possible, preferably on arrival but certainly before a loss occurs,
and once they have been drawn to a guest’s attention they are bound to follow them.
No attempts can be made to contractually limit or exclude liability. For property: While
the courts have been prepared to accept the innkeeper’s right to spell out the safety
precautions that guests should take in respect of their property, they have consistently
declared attempts to contractually limit or exclude liability as being contrary to public
policy and therefore void.
2. Right to Select accommodations for a guest
The determination of which guest gets which room is the prerogative of the innkeeper.
Once a room had been assigned the innkeeper may change the room assignment
3. Right to enter a guest’s room
The rule is that when a guest occupies a room, he should be the sole occupier/ should
be granted privacy. However, the hotel has rights to enter the room in certain
circumstances:
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Article 31 ( right to privacy)
a) To address an emergency/imminent danger.
b) To perform routine maintenance and repairs.
c) When the guests have not paid for the accommodations.
d) When entry is requested by the guest (room service, housekeeping, etc.)
e) To move the guest's belonging to another room (not recommended without
consulting with guest first).
f) To remove the belongings of an evicted guest.
4. Right to evict a guest
Under some circumstances a hotel may evict a guest and keep his room rental payment:
a) Failure to pay the bill.
b) Occupying a room beyond the agreed upon time.
c) Persons of ill repute
d) Intoxication and disorderly conduct
e) Disorderly conduct
f) Contagiously ill guests but must use extreme care to avoid aggravating the
condition.
g) Breaking house rules: rules should be posted in a conspicuous place.
h) Person who is not registered/ fails to register as a guest.
i) A business competitor who comes to the hotel solicit customers.
j) using the premises for an unlawful act.
k) bringing property that may be dangerous to others onto the premises.
l) using false pretences to obtain accommodations.
m) being a minor unaccompanied by an adult registered guest.
n) violating Kenyan laws or regulations.
5. Right to refuse a diner
Under common law, a restaurant, unless part of an inn, had the right to refuse any
person.
6. Right to Lien
A lien is a security interest in the property of a debtor. At common law, a lien or right
of lien is a legal right giving passive possession and control over the guest's luggage or
goods until such time as the guest pays the account.
Rights under the lien
The innkeeper can prevent the guest from removing the property, it can take
possession, and it can sell. The innkeeper can prevent the guest from removing the
property, it can take possession, and it can sell. What property? Almost all property
that a guest brings into a hotel would be subject to lien. Exceptions are necessities and
some very personal pieces of jewellery, such as a wedding ring.
A lien attaches to property as soon as the property is brought within the boundaries of
the hotel by the guest. It should be noted that it doesn’t matter whether the guest owns
the property if it is in his/her possession.
7. Right to Sell
The right of sale is in addition to and separate from the ordinary right of lien and only
operates where expressly provided for by statute. The innkeeper SHOULD:
1. send notice of the sale to the non-paying guest.
2. sell by public auction through notice
Upon sale, an innkeeper may retain the amount of the debt due out of the proceeds of
a sale, together with the costs and expenses of the sale, and the balance must be paid
to the guest. Naturally the innkeeper owes a duty to take reasonable care of the
property over which they are exercising a lien.
8. Right to act as a bailee
A bailment arises when goods are delivered to a person on condition that the recipient
will ultimately return them to the person depositing them. Goods under a bailment
can be hired, lent, pledged or deposited for safe custody. Three conditions have to be
satisfied for a bailment to come into existence:
a) The bailor must retain title and ownership
b) The bailee must only have temporary possession and control of the goods
c) The ultimate possession of the property must revert back to the bailor in identical
form, unless the goods are ordered to be transferred to a third party.
Whenever a guest takes valuables to the reception area of a hotel for safe keeping and
the hotel accepts them, it is entering into a relationship of bailment with the guest. The
agreement is that the hotel will return the valuables to that person.
The duties of a bailee are to:
a) exercise due care of the goods, the standard of care being that of the ordinary
reasonable person
b) retain possession
c) avoid unauthorised use; and
d) return the goods.
The duties of the bailor, on the other hand, are:
a) not to interfere with the bailee's possession; and
b) to make known any dangers.
The hotel as bailee is therefore liable for any loss of the goods in its custody.
DUTIES OF THE GUESTS
1. To follow hotel rules
2. To take care of hotel property- be surcharged for damage.
3. To allow reasonable access to room for cleaning repair etc.
4. Duty of care- not to injure other guests.
5. To allow/ not to interfere with Hotel’s lien.
6. Pay for services rendered.
7. Not to cause disturbance
RIGHTS OF GUESTS
1. Right to Occupy Assigned Room: The guest has the right to occupy an assigned
room without disruption from the innkeeper. However, there are exceptions
(when a guest may be evicted)
2. Right to privacy: privacy in their room without interference. However there are
exceptions (when the innkeeper may enter a guest’s room)
3. Right to safety
4. Right to safekeeping of baggage/property
5. Right to accommodation/service
6. Right to confidentiality of records
ENFORCING PAYMENTS
An unpaid Innkeeper has several options in enforcing payment:
1. Right to lien
The innkeeper can exercise a lien over the guest's luggage or goods when the guest does
not pay their account. At common law, a lien or right of lien is a legal right giving
passive possession and control over the guest's luggage or goods until such time as the
guest pays the account. In the case of a hotel, a lien attaches to property as soon as the
property is brought within the boundaries of the hotel by the guest. It should be noted
that it doesn’t matter whether the guest owns the property if it is in his/her possession.
Naturally the innkeeper owes a duty to take reasonable care of the property over which
they are exercising a lien. The right of lien would be of little value to an innkeeper if
they did not also have a right of sale over the property. However, the right to lien is
only on the guests goods not on the person of the guest.
2. Personal suit for breach of contract
The hotel may sue the guest personally in a court of law for failure to pay.
3. Bankruptcy
The hotel may issue a bankruptcy notice to the individual to pay, failure to which they
may commence bankruptcy proceedings. Financial capacity is important.
4. Seizure and auction of goods
After obtaining a court judgment and it is remaining unpaid, the hotel may apply to
enforce by seizing and selling asset of guest.
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Public way of auction
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Notification to the person whose goods are to be auctioned
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Remainder of the amount that is not due to you back to the guest.
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Guest has a right to sue you if you don’t pay them what isn’t due to you.
5. Insurance
Some hotels insure for payment, and the insurance companies pay for unpaid bills.
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The risk you are insuring yourself with is unpaid bills.
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Insurance is important
6. Criminal suit for obtaining by false pretence and conspiracy to defraud:
Two elements must be proven in such a case:
a) That there is a criminal act
b) There is intent to defraud.
c) Since fraudulent intent is difficult to prove, the law presumes it sometimes and
the accused must rebut the presumption. Courts frown upon such cases since
they arise from pure contractual situations.
7. Guarantees
Some hotels ask for guarantees. They may recover unpaid bills from such guarantees.
8. Civil suit for breech of contract
Suing for purposes of payment
Law of TORTS
Refer to civil wrongs the remedy to which is unliquidated damages.
1. Negligence:
a. Commission: you’re doing something, your taking active steps in which a
reasonable person will not have done
b. Omission: is the failure to do something which a reasonable person would
have done.
Elements of negligence
I.
Legal duty- who is most likely to be affected by my actions. Consider the
person who your actions affect.
II.
Breach of legal duty of care- The plaintiff must prove that the defendant acted
negligently thereby breaching his legal duty of care. The plaintiff must prove specific acts
or omissions the part of the defendant. The plaintiff must adduce evidence to prove his
case.
III.
Loss or damage- The plaintiff must prove that as a result of the defendant’s breach of
duty he suffered loss or damage. The plaintiff’s loss must be traceable to the defendant’s
breach of legal duty, failing which the plaintiff’s damage is deemed to be remote and
therefore irrevocable.
IV.
Causation - loss you have suffered is directly linked to the action of a
particular individual.
Defenses in negligence
I.
II.
III.
IV.
Acts of god- whatever is being complained is caused by natural causes way
beyond human control
Act of a third party- person who is not part of the case but is responsible.
Contributary negligence- the individual who is suing is also responsible for
their own actions. They contributed to the loss they suffered.
Voluntary assumption of risk- possibility of getting hurt
2. Occupiers liability
• Who owns the building or who is in charge of the building.
• Also extend to motor vehicles, aircrafts
• Set up your facility to extent you understand the guests situation e.g drunkards,
children
• You have a duty to inform your guests about the hazards in your area
In determining whether the occupier of premises has discharged the common duty of
care to a visitor, regard is to be had to all the circumstances, so that (for example)—
(a) where damage is caused to a visitor by a danger of which he had been
warned by the occupier, the warning is not to be treated without more as
absolving the occupier from liability, unless in all the circumstances it was
enough to enable the visitor to be reasonably safe; and
(b) where damage is caused to a visitor by a danger due to the faulty
execution of any work of construction, maintenance or repair by an
independent contractor employed by the occupier, the occupier is not to be
treated without more as answerable for the danger if in all the circumstances
he had acted reasonably in entrusting the work to an independent contractor
and had taken such steps (if any) as he reasonably ought in order to satisfy
himself that the contractor was competent and that the work had been
properly done.
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Highest duty an occupier has
I. Duty owed to a person who is entering the premises on a contract
with him and the occupier.
II. Duty owed to an invitee- someone whom you do not have a
contract with.
III. Duty of the licenseeIV. A trespasser- you cannot cause deliberate injury or reckless injury.
As the occupier your aware of a particular danger existing, By all
logical conclusion it is likely that the trespasser will be injured
V. A warning isn’t sufficient.
VI. You have no right to sign off Ur liability.
VII. Owe an obligation to each and every person coming into Ur
premises.
3) Defamation
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Man’s reputation is considered to be his property, more precious than any
other property.
Defamation is an injury to reputation of a person.
Defamation is customarily classified into
(a) libel
(b) slander
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Broad distinction between the two is that libel is addressed to the eye
while as slander to the ear.
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Slander is the publication of defamatory statement in a transient form.
Examples of it may be spoken words.
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Libel is a representation made in some permanent form e.g. writing,
printing, picture, eEigy or statute.
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Under English Law, the distinction between libel and slander is material for
two reasons;
1. Under criminal law, only libel has been recognized as an oEence. Slander
is no oEence.
2. Under law of torts, slander is actionable, save in exceptional cases, only on proof of
special damage.
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Libel is always actionable per se i.e. without the proof of any damage.
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Slander is also actionable per se in the following four exceptional cases---
1. Imputation of criminal oEence to the plaintiE
2. Imputation of contagious or infectious disease to the plaintiE which has eEect of
preventing others from associating with the plaintiE
3. Imputation that the person is incompetent, dishonest, or unfit in regard to the
oEice, profession, calling, trade or business carried on by him
4. Imputation of unchastity or adultery to any woman or girl.
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Requisites of Defamation: The constituent elements of defamation are:
a. the words must be defamatory
b. the defamatory words, should directly or indirectly refer to the person defamed,
and
c. publication of the words by any medium should take place
(a)Defamatory Words: The defamatory words or statements are those which cause
an injury to reputation.
b.Words Must Refer To The Person Defamed: In any action for defamation, the
person defamed must establish that the defamatory words or the statement referred to
him. In other words, defamatory statement was such that the defamed person would
reasonably infer that the statement was directed against him.
(c)Publication of Defamatory material: No defamation will be constituted unless
defamatory statement or material is published. Publication does not mean publication
in press or by leaflets. If it is brought to the notice or knowledge of persons or even to a
single person other than the defamed person, amounts to publication. If a defamatory
matter enclosed in an envelop is not publication.
Defences to Defamation:
1. Justification or truth
2. Fair comment
3. Privilege
1.Justification or truth: In defamation there cannot be better defence than that of truth,
as the law will not permit a man to recover damages in respect of any injury and
character which he either does not or ought not to possess. The deference is still
available even though the statement is made maliciously.
2.Fair comment: The second defence to an action for defamation is that the statement
was a fair comment in public interest.
Comment means expression of an opinion.
The essentials of this defence are:
a. It must be a comment, i.e. expression of opinion
b. Comment must be fair
c. Comment must be in public interest Comment and statement of facts are diEerent
Comment is an expression of opinion on certain facts and circumstances, and not
statement of fact.