ESSAY training. I can only hold that price

 ESSAY QUESTION Sean, the SalesDirector at BIMSoft, is approached by Will, theproject manager of NewDay Construction Limited (ND) who explained that ND hassubmitted a number of bids for projects which require the company to be fullycompliant with the Building Information Modelling (BIM) Level 2 and ask Sean toquote a price for the installation of BIMSoft’s ‘state-of- the- art’ BIMGeneration and Management software. Sean, eager to reach his monthly sale’squota, replies: ‘I am sure that for a business of your size and the likelyprospects of future business we can  guaranteea price of £10,500 covering installation cost and appropriate staff training. Ican only hold that price for a week’. Later that day, Will receives an advertby email from AutoBIM Ltd which states: ‘We can offer our “cutting edge” BIMsoftware for contractors seeking to be BIM Level 2 compliant at a priceguaranteed not to exceed £9000’. Will immediately telephones AutoBIM and placesan order.

However, after discussing the matter further with one of thetechnical staff of AutoBIM, it becomes apparent that the actual cost ofinstallation will exceed £12000. Will thereupon withdraws his order. Next day, Will telephones BIMSoft. Heleaves a message on the answering machine accepting the offer of £10,500 madeby Sean, at the same time asking whether the cost could also include on-sitetraining for any new staff ND will recruit within six months of thecommencement of the contract.

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Subsequently, Will is unsure if he is making theright decision and telephones BIMSoft to cancel his order. The secretary onduty informs Will that she has passed on all the recordings on the answeringmachine to Sean, who will be listening to them shortly, but that she will makea note of his withdrawal wish. In the meantime, BIMSoft has a systemwhich triggers automatic messages to their engineering team when an order isplaced. The team will usually then visit the premises of the customer for apreliminary check on the suitability of the premises for installation of thesoftware. This routine is followed soon after Will’s order is placed. Whilstwaiting in an adjacent car park, Vishnu, one of the engineers of BIMSoft, lefta toolbox close to the entrance of a pedestrian walkway. Sarah, a twenty yearold University student on holidays who lives nearby tripped on the toolbox,fell awkwardly and injured her right ankle, shoulders and neck.

Whilst beingtransported to the Hospital, Sarah suffered additional injuries to her ribs dueto the hard padding on the stretcher and the ‘bumpy ride’. Initial assessmentof medical experts taking care of Sarah is that she will need at least threemonths recovery time. Sarah, is a member of a professional football team.

Shewill neither be able to complete her second semester school work at theUniversity nor play in her football team for the next few months.  (a) Advise Will whether he has concluded acontract with BIMSoft and or AutoBIM and, if so on what terms? (Weighting: 55%)(b) Identify and address the varioustort-related issues in the above scenario and advise Sarah as to her potentiallegal claims. (Weighting: 45%)(NB: Please focus only on the legalissues.

Also remember to consider counterarguments, where necessary, beforedrawing conclusions).Issue: The Will, Project Manager of NewDayConstruction Limited (hereafter ‘ND’) has approached and ask Sean, SalesDirector at BIMSoft (hereafter ‘BS’) to quote a price for the installation ofBIM generation and Management software in order to full fill the condition forthe company to be full compliant with the Building Information Modelling(hereafter’ BIM) Level 2. Sean offered the price £10,500 including theinstallation of cost of software and appropriate staff training with thevalidity of price for one week.

Will also receive an advert by email fromthe Auto BIM Ltd for Level 2 compliant at a price £9000, Will call to Auto andplace an order but after further discussion with one of technical staff, Willwithdraws the his order due as actual of installation exceed £12000. After one, Will called to ‘BS’ and acceptthe offer of £10500 given by Sean with the additional question that whether thecost also include the on-site training for any new staff which to be recruitedwithin six months of the commencement of  Contract. Will was unsure about the his decision (as was not sure contract to be awarded or not) and cancel his order viatelephone to ‘BS’ (After how many days) but came to know through the secretarythat  recordings on the answering machinehas already been given to Sean, and he will be listening to them shortly, andshe will make a note of his withdrawal wish Through Scenario it is also determinethat ‘BS’ has a system which triggers automatic messages to their engineeringteam when order is placed , and team making primary inspecting the premises ofthe Customer for the installation of software. And this routine is carriedafter Will order is placed.In the other part when Vishnu, anengineer from the BS left the toolbox near to entrance of a pedestrian walkwayand Sarah, A student lived nearby, fell awkwardly and injured her right ankle,shoulder and neck, Sarah also suffered further injuries to her ribs when beingtransport to hospital due to the hard padding on the stretcher and bumpy rudeand as per doctor assessment at least Sarah cannot play football as he was themember of football team and also will not be able to complete her schoolsemester.

     Area of Law Formation of Contract which involveoffer, acceptance, counter offer, revocation of offer. Invitation to treat Legal Issue: The facts tells us that The Will,Project Manager of NewDay Construction Limited (hereafter ‘ND’) has approachedand ask Sean, Sales Director at BIMSoft (hereafter ‘BS’) to quote a price forthe installation of BIM generation and Management software in order to fullfill the condition for the company to be fully compliant with the BuildingInformation Modelling (hereafter’ BIM) Level 2. Sean offered the price £10,500including the installation of cost of software and appropriate staff trainingwith the validity of price for one week. Will also receive an advert by email fromthe Auto BIM Ltd for Level 2 compliant at a price £9000, Will call to Auto andplace an order but after further discussion with one of technical staff, Willwithdraws the his order due as actual of installation exceed £12000. After one, Will called to ‘BS’ and acceptthe offer of £10500 given by Sean with the additional question that whether thecost also include the on-site training for any new staff which to be recruitedwithin six months of the commencement of  Contract. Will was unsure about the his decision (as was not sure contract to be awarded or not) and cancel his order viatelephone to ‘BS’ (After how many days) but came to know through the secretarythat  recordings on the answering machinehas already been given to Sean, and he will be listening to them shortly, andshe will make a note of his withdrawal wish Through Scenario it is also determinethat ‘BS’ has a system which triggers automatic messages to their engineeringteam when order is placed , and team making primary inspecting the premises ofthe Customer for the installation of software. And this routine is carriedafter Will order is placed.

In the other part when Vishnu, anengineer from the BS left the toolbox near to entrance of a pedestrian walkwayand Sarah, A student lived nearby, fell awkwardly and injured her right ankle,shoulder and neck, Sarah also suffered further injuries to her ribs when beingtransport to hospital due to the hard padding on the stretcher and bumpy rudeand as per doctor assessment at least Sarah cannot play football as he was themember of football team and also will not be able to complete her schoolsemester.     The facts of question poses that whetherthe contract was formed between Will and BS or AS on the basis of element ofcontracts. Moreover, ·        Whether there isissue of Counter offer·        Whether Will offeris revoked when he called to Secretary although will message for alreadyrecorded·        Sean offered rate isoffer or not  ·        Advert by email isoffer ·        Will read the emailand by telephone places the order then Contract is formed or not ·        When Will placed theorder can he withdraws his order, is there is any binding for Will,·        Is will contract iscancelled by withdrawing the order.·        Is offer can beaccepted leaving the message on fax machine (placing of order)·        Bid is to beaccepted first then six months are required for the deployment of staff. Itsmeans duration may reach of 9 months.Weather Will concluded the contract withBS and AUTO SOFT (AS)1.    Is offer can be accepted leaving the message onfax machine (placing of order)2.

    Bid is to be accepted first then six months arerequired for the deployment of staff. Its means duration may reach of 9 months.3.    Weather Will concluded the contract with BS andAUTO SOFT (AS) Missing Part What were the quotation in result theprice is increased, may be training of staff who will joing after sixmonth  Contract formation, A Contract will come into existence if anagreement has been concluded. The test whether an agreement has been reached isdepend on external evidence, the court will consider the circumstances of case whena reasonable man would think that an agreement has been reached and a contractwas created1A Contract is an exchange of the promisesthat constitutes a legally binding agreement between individuals or corporateentities or a mixture of both.

Agreement will be concluded when an offer by oneparty (the offeror2)to another (the offeree), that indicated that offeror willingness to enter intoa contract an certain terms without further negotiations, and accepted by the personto whom it is addressed (offeree). There must be meeting of minds (consensus inidem) on all relevant point in each contract. In the formation of Contract the basicprincipal is that there must be an offer, followed by an acceptance meeting theterms of the offer. A Contract can be made verbally, In writing or by conductbut in all cases, the proof of a valid offer and acceptance must exist, generallythe England, Wales and Scotland courts does not require contracts to be inwriting.

In order to formed the valid contact, thefollowing must exist·        Offer.·        Acceptance whichshould meets the offer requirement.·        Consideration.·        Intention to createthe legal relations.

   An offer must be communicated to theother party. An offer is a proposal from one party with the intention tolegally bond with definite terms like if it is accepted legally bindingcontract will be concluded.An offer must be distinguished from aninvitation to treat which is mainly an expression of willingness to negotiate.An invitation to treat is not offer and cannot be accepted in law as invitationto treat can be described as an invitation to enter into negotiations. Theoffer can be accepted or rejected3. AnAdvertisement in website, newspaper, a magazine or on TV also comprise aninvitation to Treat4     An acceptance will b effective only whenit has been communicated to the offeror. There are different mode for thecommunication by here it is has been communicated by Telex recordingmachine.

  The general rule of acceptanceis offer will be accepted when received by the offeror means when acceptanceintimated5 Termination of Offer: Refusal or acceptance: When a acceptanceexist a contract is formedCounter offer: Any attempt by the offereeto introduce a new term will serve as counter offer. The counter offer willdestroy the original offer.  Other modes: If the Time is lapsed:In case of DeathRevocation The offer can be revoked at any timebefore acceptance to be made. The rule applies even when offeror has promisedto keep the offer after open for a particular period of time. Authority hasbeen established in Case of Payne v Cave 1789 and Routledge v Grant (1828),in order to effective, the renovation of an offer must be communicated to theofferee6.Therevocation can be communicated by a reliable third party as per factestablished in case Dickinson v Dodds (1870) Counter offer: When an offer will be established, it isessential to ascertain whether valid contract has been taken place. A counteroffer will occur when the offeree attempts to vary the terms of the offer7  Information Request Some request are required some furtherinformation, for example if any person ask’ Can I pay by Cheque, Will youaccept the payment by credit card such information will not treated counter offer.However if the question pertains to the manner in which contract will beperformed as in Hyde v Wrench.

     Acceptance; Acceptance of the offer must becommunicated and is only valid if it is communicated by a person who have theauthority to do so (Powell v lee (1908)). The offeree is responsible forensuring that acceptance is communicated to the offeror8.  The acceptance must be unconditional and tobe relevant to the strict terms of the offer, if anything differ to be treatedcounter offer , following are the four main important areas which should beconsidered in relation of acceptance OralWrittenConduct or silenceElectronic Communication     Communication of acceptance is anotherobjective concept.A telephone is clearly instantaneouscommunication when you get reply to your telephone calls, most probably voicemail message is the message I am accepting the offer, communication the personphone they have blinking red light but some time voice not listen to for a dayor two , the kind to be effective commination and what about other caller whenvoice mailed is played this is where is the objective principal takes over althoughthis area of law, application of law  isrelatively undeveloped, In the given scenario we can say that there is communicationfor acceptance or its ought to commination its not dismiss like to ignore voicemail or not to handle it efficiency but yhere is mucg rome for debate aroundcommunication here, the general principal is that acceptance is effective whenits communicated, most cases involve communication when there is indication ofacceptance and also other statement thinks add to qualification of thatacceptance, the draft common frame of reference to one state to any formalconduct of offree is an acceptance it its indicat, sent to offeror,silience  cannot be treat as acceptance,in looking at the torist case the contract will complete when acceptance isreceived by the offeror and the contract is made, placed where is the acceptanceis received that in the case of telex commication, the placed whre the contractthe made is the place where is offeror received the notification of acceptanceby the offeree, in this case English company and ditch company instadamconcluded a contract by the telex system of commination where by message by canbe typed on tele printer one country and recorded in other country, an offersent by the telex in England offeror to pay 239 pound for 400 ton japniescaftoos, this was accepted by telex, the contract made in England and leefshould be given, this based on brinkaponlay case .  Whether Sean quote was offer orinvitation to treat.  1Smith V Hughes 1871 , Forddell Estates LTD v Delitte 2014 CSOH 55(Scotland); Bieber V Teathers Ltd 2014 EWHC 4205 (England and Wales) 2 TheCambridge dictionary definition of Offeror (‘a person, company, or organizationthat offers to buy something from another person, company, or organization’),Offeree (a person or an organization that is offered something, especially theopportunity to buy or sell shares’).3  Harvey v Facey 1853 AC 552 ( Harvey(H) senta telegraph to Facey(F) saying; ‘will you sell me bumper Hall pen (BHP)telegraph lowest cash price, F replied’ lowest price for BHP is £900′ H replied’ we agree to pay £900 for BHP’.

F would not go ahead Hbrought an action against him, H action failed. The court held that F reply wasresponse to a request for information and not an offer. He was simply stipulatingthe price he would sell at if he decided to sell.

4 Seethe case Let us consider Partridge v Crittenden 1968 1 WLR 1204 Anadvertisement was placed in a magazine advertising bramble finches for sale at25 shillings each. The defendant was charged under the protection of Birds Act1954 for offering live wild birds for sale Held; eld: The advertisement was aninvitation to treat, so the defendant was not guilty. He had not ‘offered’ wildbirds for sale. See other cases; Harris v Nickerson 1873 ; Carlill v CarbolicSmoke Ball Co 1893 1 QB 256 5Entores Lts V Miles Far East Corp 19552 All E.

r. 493, Brinkibon Ltd V StahagStahl1982 1 All E.r 293          6Byrne v Van Tienhoven 918800 5 CPD 344 (The defendant posted a letter inCardiff on 1 October offering to sell tinplate to the plaintiffs in New York.The offer was received on 11 October and immediately accepted by telegram. On 8October the defendants posted a letter of revocation which arrived with theplaintiff on 20 October. HELD: he contract came into force when the telegramwas sent on 11 October.

The letter of revocation could only be effective uponreceipt. The date of receipt was 20 October. This date fell after acceptancehad taken place. 7Hyde v Wrench 1840 49 ER 132( Case precedent) 8

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