1) Carbolic Smoke Ball[2] it was buying the

1)    An offer can be defined as “an expression of willingness
to contract on certain terms, made with the intention that it shall become
binding as soon as it is accepted by the person to whom it is addressed”1.  Contracts may either be bilateral or
unilateral. Bilateral contracts are more common and are mutually beneficial. Each
party to the contract makes a promise or exchange to one another and from that
time are bound to their duty. On the other hand, a unilateral offer can be a
formed by an express offer where one party makes a promise to perform a specific
act. An example is placing some adverts in shop windows or on lamp post offering
£150 to anyone who finds the missing iPhone. By offering a reward, this is also
offering a unilateral offer. If anyone should fulfil the offer then the reward
of £150 must be given. The acceptance takes place by usually doing the action
requested in the offer. If the offeree has performed the act the offeror cannot
reject it. For example, in the case of Carlill
v Carbolic Smoke Ball2 it
was buying the smoke ball for influenza and using it for two weeks in order to
gain £100. When she tried to claim the £100 she was rejected on the grounds
that it was just for sales as you couldn’t make a contractual offer to the
whole world and they had not been notified by Ms. Carlill, therefore, had no
reason to give her £100. However, the court ruled that Ms. Carlil was owed the
money as not only did the ad show a clear promise but that advertisements need
no notification of acceptance and so it was deemed as a unilateral offer3.
In Shuey v United States4 we
see how unilateral offers can be revoked. Even an offer made ‘to the world at
large’ can be revoked if given equal publicity as the offer itself. The
defendant won in Shuey v United Stated5
because it was published in the same manner. Another way in which a unilateral
offer can be revoked is showed in Errington
v Errington6 where it
was stated that a unilateral offer cannot be revoked once the act has begun, as
long as the performance is not left ‘incomplete and unperformed’ thus implying
the offeror must give a reasonable chance for completion.


2)    The question concerning whether Dougal has
any authority to sue the Crivendoe Catering (CC) is one that carries little
doubt. Though some facts in the case such as offer and acceptance give no rise
to any difficulty, more arguable points, for instance, consideration carries
more room for interpretation. We must first establish if there is a binding contract.
contract is an agreement giving rise to obligations which are enforced or
recognised by law”7.
The law traditionally says there is an agreement when there is both an ‘offer’
and an ‘acceptance”. An offer can be defined as “an expression of willingness
to contract on certain terms, made with the intention that it shall become
binding as soon as it is accepted by the person to whom it is addressed.”8 This is apparent as CC
approached Dougal expressly promising to pay him £60 per week for the delivery
of the food on time. In order for the other end of an agreement to be met “a
final and unqualified expression of assent to the terms of an offer must be
met”.  This becomes effective when is it communicated
and we are told that ‘Dougal agrees and is true to his words’.  From the facts so far presented, it can be
said that is it likely for an agreement to have been formed as all the
requirements have been met.

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While it can be
recognised that an agreement has been made. In order to establish a contract, there
must also be ‘consideration’ from each party with an ‘intention to create legal
relations’. The main contention possibly limiting the basis of Douglas’ case is
the element of consideration. As defined in Currie
v Missa9 this
“may consist either in some right,
interest, profit or benefit accruing to the one party, or some forbearance,
detriment, loss or responsibility given, suffered or undertaken by the other”.
Consideration can be broken down into three principles. The first principle is
that at the others express or implied request each party’s act or promise must
be given in return for or in exchange for the others promise. Here, CC expressly
promises to pay Dougal £60 per week in exchange that he delivers the meals on
time and so could be said that this limb is satisfied. The second principle
being that past consideration is not good consideration. The exchange between
Dougal and CC is considered as a good consideration as the act of making the
meals by Dougal in return for the £60 CC had promised Dougal if delivered on
time was established. Thus, in reality, the consideration is not ‘past’. The
final principle being that consideration must be sufficient but need not be
adequate. The idea of adequacy is provided in Thomas v Thomas10, where the courts stated
that it ‘means something which is of some value in the eyes of the law’. By CC
and Dougal offering one another money or meals this could be said to be of
value and providing that it has some value, the courts will not investigate its
adequacy.  The crux of the matter is
whether or not the contract is sufficient. The principle set out in Stilk v Myrick11 tells us that if someone promises to perform a duty they are
already bound too under a contract, this would not be a valid consideration.
Furthermore, a promise to perform it could not be sufficient consideration for
any fresh promise. Here, it could be said that under the initial agreement, Dougal
had agreed to provide meals for CC for £50 a week making him bound to do so
under his pre-existing contractual duty. By getting a new contract in which he is
now being paid £60 a week it doesn’t change anything as he is not significantly
exceeding his existing contractual duty like they were in Hartley v Ponsonby12
but instead is doing the exact same job for more money. As the consideration
can be deemed as invalid then so does the contract as not all the requirements
have been satisfied. However, this is unlikely as Dougal can argue that CC had
obtained a practical benefit from this work thus validating the consideration
and the contract. Just like the case of William
v Roffey13
CC believed that Dougal may not be able to complete his contractual obligation
within the deadline. Concerned about their reputation being damaged in the
trade and not having their contract renewed CC promised to pay Dougal £60 per
week if he met the contractual deadline. Though Dougal had not exceeded his
existing contractual duty CC had obtained a practical benefit as a result of
Dougal promise to complete the work on time. These include benefits such as
upholding their reputation, renewal of their contract, a possible revenue
income if the meal price increased, not wasting time looking for other staff
and by only having Dougal it means no additional costs are required to cater
for a group of staff. As CCs promise had not be made as a result of fraud or
economic duress then these practical benefits are counted as sufficient
consideration to make the additional payment. As a result, this promise then
becomes enforceable as a contract and so Dougal can sue CC on the basis that
there has been a breach of their contract.


3)    In order to critically discuss the statement about
breach of duty, it must first be defined. A breach of duty can occur when a
person has a duty of care towards another person but fails to live up to that
standard. In the case of Lamb v Camden14 Lord Denning describe the
four elements of negligence as “continually running into one another”.

In order for courts to determine whether there is a breach of duty, they must
take into account four factors. One is the foreseeability of the outcome. In Bolton v stone15 Mrs. Stone who was stood
outside her house was hit by a ball during a game of cricket. However, it was
held that there was no breach of duty as a reasonable person would not have
foreseen such an extremely remote risk and as Lord Oaksey puts it “an ordinarily
careful man does not need to take precautions against every foreseeable
risk”. The second being the magnitude of the risk. Meaning that there is an
expectation between the degree of care taken in proportion to the risk created.
In the case Wagon Mound No.216 the defendant’s vessel
has leaked oil into the Sydney harbour due to failure in closing the value.
This led to a fire destroying some boats and the wharf. The defendants were in
breach of duty as though the likelihood was low, the magnitude was high and it
cost nothing to prevent it. The third factor being the practicality of
precaution. In Latimer v AEC17 it was held that the
defendant only had to take reasonable precaution to minimise the risk which they
had done and so they had not breached their duty. The final factor is the
utility of the defendant’s conduct. In Watt
v Hertfordshire CC18 the defendants conduct in
saving a life outweighed the need for precautions. These four factors are
judged objectively.

Baron states that “it is an
objective standard taking no account of the defendant’s incompetence – he may
do the best he can and still be found negligent”. This statement can be
supported in the case of Nettleship v Weston19 whereby the learner
driver hit a lamp post injuring Mr. Nettleship. It was held that a learner
driver was expected to meet the same standards as a reasonable qualified
competent driver. This may seem unfair as a learner is held to such high
standards, leaving little room for error. Another criticism being that what the
reasonable man may mean to one person could be completely different to another
and so to judge a situation by “merely an abstraction whose characteristics are
invented by a judge”20 may seem unjust. Having
said this, the standard of care can be altered for children as in the case of Mullin v Richards21 where it was to “an
ordinary prudent 15-year-old” or those with mental infirmities as in the case
of Mansfield v Weetabix22 where he was suffering
from a condition that impaired his ability to drive or such as the case of a
professional person in the case of Bolan
v Friern Hospital Management Committee the standards were raised for
professionals. Showing that the law does make reservations for special
categories of people.