Advanced Contract Law and Negotiation †MyAssignmenthelp.com

Question: Discuss about the Advanced Contract Law and Negotiation. Answer: Introduction The contract is an agreement, which formed between two or more than two parties. It is formed when one party makes an offer and another party accepts the offer for performing the contract. The contract is only enforceable when it has formed for enforceable by law and establishes a legally binding. The contract only arises when both of the parties mutually agrees with the terms of the agreement (Ktz, 2017). It should consist of five elements, which includes offer and acceptance, consideration, capacity to the contract, intension to create a legal agreement and certainty (McKendrick 2014). According to the fact of the case, HEALTHY PLC and MEDIQUIP Ltd. wants to form an agreement for buying MRI scanners and installing for the company. The contract is worth 50 million pounds. Therefore, for the formation of the contract, it must satisfy all the terms. It is required to satisfy every important element, which will help to form a valid contract (OLeary 2017). Under the contract law, it is necessary to follow some rules for the formation of a contract. When a contract has formed for the employment or insurance or buying any house or property it should follow all the important elements to make a legally binding. We are required to follow every details of the agreement before we form the contract (Ktz, 2017). In some special matters, for rent agreements, mortgages or loan agreement a contract is always necessary for follow all the areas of law (OLeary 2017). While the formation of law it is required to establish a relationship between the parties. It is one the important area of law because multiple of parties can enter into a contract with mentioned related topics. In a contract, all included facts must relate with the agreement and formed between two or multiple parties. An English contract must include a wide area where it is necessary to follow up all the requirements. Those are: The formation of Contract which includes offer, acceptance, intention and consideration (Ktz, 2017) The capacity to the formation of the contract The contents which includes terms of the contract, exclusion and privities The vitiating factors where contract deals with misrepresentation, duress, illegality and mistakes The discharge where a contract can faced according to the performance agreement, breached and frustration For the discharge of the contract, remedies also applicable which includes damages, injunction and performance (OLeary 2017). For the formation of the contract it is required that a party must offer and another party will accept the offer. The parties must have intention to create a legally binding contract. There should have a mutual consideration for the formation of the contract. According to the performance in the contract, it helps to the parties to communicate with each other in the agreement (Ktz, 2017). The parties who are entering into the contract must have the capacity to understand all the terms and importance of the agreement. The unsound mind person and minors have no capacity to enter into the contract (OLeary 2017). For the content of the contractual agreement must incorporated with definitive promises where the mentioned terms of the agreements deals with between two or multiple parties should. It must be a contract. There should an exclusion clause where it must restrict rights for the parties. The privities of contract set the terms where the contract never confer with the rights for impose the obligations (Dicey, 2017). Under the vitiating factors, misrepresentation defines false facts or statement which against of a valid contract. The duress or coercion occurs where any party involves with violent activities between the parties. The illegal agreement is against of enforceable of law. Mistakes define in the defense where the facts are found voidable (Ktz, 2017). The discharge of contract has found due to the breach of contract and the frustration of purpose where a defense can claim according to the enforcement of the contract (Poole, 2016). When a contract is breached, remedies also claimed by the innocent parties. The damages and compensation can claim from the aggrieved party (OLeary 2017). Bargaining Position According to contract between the HEALTHY PLC and MEDIQUIP Ltd, one is seller and another one is buyer. Therefore, they have fixed the amount already, which is worth 50 million pounds. Now according to the fact of the case study, both of the company has set an agreement where MEDIQUIP Ltd will provide 10 MRI scanners to HEALTHY PLC in exchange of 50 million (Dicey, 2017). According to the terms of the contract, both of the parties have mutual consideration about the sell agreement of the medical equipments (McKendrick 2014). Now according to terms of the formation of the contract it must follow the necessary areas, which includes: The formation of Contract which includes offer, acceptance, intention and consideration The capacity to the formation of the contract The contents which includes terms of the contract, exclusion and privities The vitiating factors where contract deals with misrepresentation, duress, illegality and mistakes (Ktz, 2017) The discharge where a contract can faced according to the performance agreement, breached and frustration (Dicey, 2017) For the discharge of the contract, remedies also applicable which includes damages, injunction and performance (Poole, 2016). For the formation of any contract, the inequity of bargaining power is important where one party bargain in the agreement for a better alternative. When a bargaining occurs in an agreement, one party will get more power to choose for the deal and makes the terms (OLeary 2017). For the inequality of bargaining power, it provides freedom of contract (Ktz, 2017). When the contract is not found to be unequal then the bargaining power provides a justification. According to the implication of the important element, this is enforceable under the law. Schroeder Music Publishing Co Ltd v Macaulay [1974] is one of the famous case where the inequity of bargaining power has adopted by a party for entering in to a legally enforceable contract for buying some goods. Attorney General of Canada v Nav Canada (2008) is another famous case of contract where an agreement has formed between the tenant and landlord. In this case, the disparity of bargaining power and financial resources has established be tween them for adjudicate the disputes (McKendrick 2014). Therefore as per the above discussion, it can be stated that the contract is completely equitable in favors of MEDIQUIP Ltd because the agreement, which has formed between both of them as per their mutual consideration (Poole, 2016). They both also stated the amount of the agreement, which will cost in exchange for MRI Scanners with HEALTHY PLC. The position of the equity of bargaining power is not applicable for one party in this agreement (Ktz, 2017). The agreement between HEALTHY PLC and MEDIQUIP Ltd, which has formed has no place to bargaining powers in the equitable or favors one of the parties (Dicey, 2017). The Contract Clauses A sell agreement has formed between HEALTHY PLC and MEDIQUIP Ltd where one party will buy 10 MRI scanners from another party in exchange of 50 million pounds. Now while the formation of the contract they have formed a goods and services supply agreement where they have included several clauses according to their mutual concern. However, after the formation of the contract, MEDIQUIP Ltd must focus on every clause because sometimes it could be associated with risk factors (OLeary 2017). When a contract is formed, it only focuses on the indemnity clauses, which are added with the associated risk factors for the negligence acts. While the interpretation of the indemnity clause it arrange for the contract with complexities and helps to operate by the parties through the commercial arrangements (McKendrick 2014). The indemnity clauses could define in various forms, which are: Bare indemnities: It defines the risk factors about the liabilities or any damages, which cause due to some specific reasons without any specific limitations (Poole 2016). Reverse or Reflective Indemnities: It defines the losses against the act or omissions which caused by the negligence of the aggrieved arty. Third party Indemnities: It defines the liabilities where a party who is also involved in such situation involves the loss with the claim. Proportionate or Limited Indemnities: It defines the losses where the third party failed to satisfy the terms of the financial obligation where other party also holds the liabilities for such act or omission as guarantor (Ktz, 2017). Party Indemnities: It defines the indemnities, which caused due to the breach of any terms and causes damages to the innocent parties. Financing Indemnities: It has defines the financial losses or damages where the parties faced financial obligation due to the breach of contract (OLeary 2017). The indemnity clauses restrict the rights for the both parties in the agreement. Under this clause, the court also set the limits act the time of the act for the act of breach of the terms (Dicey, 2017). Now the there are several differences between the business and contract of business and the common contract rules will be applicable in these terms. Sometimes a lot of explicitly has found where the indemnity clause has found while the formation of the contract and cause great risks for us (Ktz, 2017). The actual clauses for the indemnity clauses found in different ways. The Actual exclusion clause, which defines the breach of contract that cause due to excludes liability for the breach the terms of contract. The limitation of clause which defines as a claim for any breach of the terms in the agreement and time limitation set the clauses where the commenced of the action of breach occur for a certain time (McKendrick 2014). For the formation of a contract both HEALTHY PLC and MEDIQUIP Ltd has mentioned about the indemnification clause in the agreement. In this contract, they have mentioned about the remedies, which will be available for the customers and the supplier of the equipments. The contract must agree with the terms irrevocably and unconditionally (Dicey, 2017). The supplier is bound to compensate the customers if they have faced any losses due to the use of the equipments. The indemnity clause will only apply when the breach of cause occur due to damages, losses, costs and expenses and it includes the economic loss or loss of profits. The loss must occur due to the act of omission by the aggrieved party (McKendrick 2014). The liability of the utility of indemnity clause only enforceable if there is a breach of contract. It sets a limitation according to the time limits which is at least for 6 years after the commencing the date of breach of the contract (OLeary 2017). The party who is liable for the indemnify clause then the risks of the anticipating liabilities will lie down for the anticipated liabilities and it helps to consider the breach of contract and negligence according to the existing common rights under the law (Poole, 2016). The confine of the effect of the indemnify clause will be helps to rise the damages only for the breach of contract by one of the party and the damages always be compensate for the innocent parties (Ktz, 2017). The compensation always consider as a liquidate damages where it provides the rights of the payment, suspension or termination to the innocent parties. Therefore, it is necessary for MEDIQUIP Ltd must focus on such negligence activities if it occurs due to the negligence act by the HEALTHY PLC then the contract will be breached for and it will become void (McKendrick 2014). All of the contract clauses, which are, mentioned in the agreement between the HEALTHY PLC and MEDIQUIP Ltd, have set the Goods and Services Supply Agreement (Poole, 2016). In the clause 1, it has described about the definition and interpretation about the contract, which includes account manager, APL, business day, confidential information, contract, expiry date, goods, group, IPRs, order, price, senior manager, services, service credits, services levels and start date (Dicey, 2017). Now in this clause the brief description about every detail is required to mention because it will help to understand the importance of the clause (OLeary 2017). According to the clause 2, it describe about the ordering, delivery and acceptance of the good (McKendrick 2014). Now the described clause provides a brief description about the process of ordering the goods, capability of the goods and other terms of negotiation process regarding the delivery of the goods mentioned in this clause. While the delivery of the goods it is also required to provide the information about the details of the goods and how it will deliver the goods to the buyer. The details about the packing is also required while delivery of the goods. Under this clause, the condition of the goods must be same as the time of packaging (Ktz, 2017). Under the clause 3, it sets the price and payment process of the goods. The price of the goods, packaging, and delivery charges along with the amount of GST must included. The VAT and GST of the goods must provide with separate list along with the agreement. The price amount must mention clearly in the price list (Poole, 2016). The extra interest amount and other convenience should attach with the VAT and GST amount. If any disputes arise at the time of delivery of the goods, then the consequences for such acts must mentioned in the part of the agreement. All of the terms must mention according to the legislations of UK (Dicey, 2017). In the clause 4, the quality and description of the goods has provided. Under this clause, it mentioned about the warranties and guarantees about the goods where it must provide the equal quality of goods which sample has provided (McKendrick 2014). The clause 5 has described about the inspection and testing of the goods where the delivered goods must compliance with the Specification before dispatch (Dicey, 2017). The clause 6 has describes about the title risk which is applicable only for the purchases and the buyer will only looks about the disputes about the goods after the delivery of goods. The limits and risks of the delivered goods also need to mention in such matters (OLeary 2017). The Clause 7 stated the provision of services, which is important in the provided service where the supplier shall perform the Services using appropriately qualified and trained personnel (McKendrick 2014). The clause 8 has included the terms of account management and reporting where the obligation and disputes resolution has motioned in this part. For the negotiation of the business terms, it is necessary to include the details about the seller and purchaser. The clause 9 has described the liability of the goods. The goods will be the liability for the seller until and unless it is delivered to the purchases. For any losses or damages of the goods of both the seller and purchaser will be liable (OLeary 2017). If the customer faced any issues with the equipments then the liabilities will be applicable for both of them. Without prejudice to any other rights and remedies the Customer may have pursuant to this Contract or at law, the Supplier acknowledges that this Contract is for the benefit of the Customer and the Customer Group (Poole, 2016). The Supplier agrees that if it fails to meet its obligations pursuant to this Contract then the Customer or any member of the Customer Group may suffer losses. Any losses suffered by any member of the Customer Group pursuant to this Contract or the subject matter of it shall be recoverable by the Customer as if the loss had been suffered by the Customer itself and the Customer shall recover such losse s on such member of the Customer Group's behalf (McKendrick 2014). The Clause 10 described the clauses of indemnification and insurance where the terms of breach of contract will depends on the contract. The clause 11 describes the confidentiality and publicity of the sale agreement. The terms of the contract must not disclose publicly which affect the business (OLeary 2017). The clause 12 stated the assignment, novation and sub-contracting where the replacement of the terms must perform according to the contract (McKendrick 2014). The clause 13 described the process of duration, termination and consequences of exit from the contract. It is one of the important parts under the sale agreement (Poole, 2016). The clause 14 has mentioned about the miscellaneous legal provision other than the contract terms (Dicey, 2017). Information and Clarification According to the contract between HEALTHY PLC and MEDIQUIP Ltd the contract has specifies about several terms, which are related with the goods and services supply agreement. The must focus on the negotiation term where the supply of the agreement should not form any conflict while the delivery of the goods (Dicey, 2017). According to the contract, MEDIQUIP Ltd also provides the maintenance service for minimum of 2 years (Poole, 2016). Therefore, it is necessary to include the clause where MEDIQUIP Ltd will take the responsibilities for the maintenance of the contract. HEALTHY PLC must clarify the terms where maintenance of the equipment is necessary because the health equipments will be used in the medical services (McKendrick 2014). The services, price, deliver and other process in the contract mentioned clearly. For the delivery of the goods, both the seller and buyer will take the responsibilities while supply of the goods (OLeary 2017). For the termination of the contract, it is necessary to find the actual reason of the termination or the breach of contract. The party who will become liable for such breach must take the liabilities to compensate another party (Poole, 2016). The compensation of breach must depend according to the loss or damages. The damage or loss will be compensate through liquidate amount to the innocent party by the aggrieved party. It is necessary to provide compensation otherwise; the aggrieved party may face legal consequences (McKendrick 2014). 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