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 • • • • 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. • Occupiers’ ability is the owner of the premises. They need to be responsible for the people who come to the establishment. • 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. • Safe needs to function in the way it’s supposed to. • You have the responsibility to care for the belongings of the guest and return it to them in the right condition. • 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: • 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. • Public way of auction • Notification to the person whose goods are to be auctioned • Remainder of the amount that is not due to you back to the guest. • 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. • The risk you are insuring yourself with is unpaid bills. • 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. • 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 • • • 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 • Broad distinction between the two is that libel is addressed to the eye while as slander to the ear. • Slander is the publication of defamatory statement in a transient form. Examples of it may be spoken words. • Libel is a representation made in some permanent form e.g. writing, printing, picture, eEigy or statute. • 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. • Libel is always actionable per se i.e. without the proof of any damage. • 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. • 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.
0
You can add this document to your study collection(s)
Sign in Available only to authorized usersYou can add this document to your saved list
Sign in Available only to authorized users(For complaints, use another form )