Construction Law Coursework The WritePass Journal

Construction Law Coursework Introduction Construction Law Coursework IntroductionRelevant LawA Legally Binding ContractAdvice to the PartiesAnalysis of the LawThe Legal Position of the PartiesAlbattBudgettCansysBibliographyRelated Introduction This essay provides advice to Albatt plc (‘Albatt’), Budgett Technology Ltd (‘Budgett’) and Cansys Ltd (‘Cansys’) in relation to their legal positions concerning a contract for the service of Albatt’s electronic processors. Firstly, the advice shall briefly outline the relevant law before analysing the applicable law and advising each party separately. Relevant Law A Legally Binding Contract In English law, the traditional approach to determining whether or not a binding agreement has been entered into is to examine whether or not the following three elements are present: offer, acceptance and consideration (New Zealand Shipping Co. Ltd v A M Satterthwaite and Co. Ltd). However, in the event that the above three elements are not clearly evident from the facts of the case, the intention to enter into a binding agreement shall be deduced by enquiring into the objective intention of the parties to enter into such an agreement by considering all the circumstances of a case: the offer, counter-offers, acceptances, revocations and rejections (Gibson v Manchester City Council). It is also noteworthy that an offer can be distinguished from an invitation to treat which arises where an individual is simply seeking to initiate negotiations as opposed to expressing an intention to be bound by their promise (Richards 2008, p 17). However, in any given case, the intention of the parties must be assessed before arriving at a decision as to whether or not there is an offer or invitation to treat (Chapelton v Barry UDC). The facts of this case would suggest that it involves an invitation for tenders. If that is the case, an invitation for tenders constitutes an invitation for offers to be submitted which can then be either accepted or rejected (Spencer v Harding).   Albeit, it ought to be borne in mind that in certain circumstances, where a tender has been submitted in accordance with the applicable rules, an invitation to tender can amount to an offer, thereby providing a party with a right to have their tender opened and considered (Blackpool and Fylde Aero Club Ltd v Blackpool Borough Council).   In the case of the supply of services, the supplier whose bid is successful is making a standing offer which is accepted by the other party every time an order is placed. Further, in circumstances concerning standing orders, a supplier can refuse to supply the services before the expiry of the agreed period without being found guilty of breach of contract providing the revocation is communicated to th e other party (Great Northern Railway Co. Witham). However, the existing orders must be honoured (Offord v Davies). An exception to the general rule that acceptance must be communicated to the other party (Powell v Lee) is the postal rule (Adams v Lindsell), which provides that acceptance takes place immediately once a letter has been validly posted (Brinkibon Ltd v Stahag Stahl und Stahlwarenhandelsgesellschaft GmbH). However, the postal rule can be negated where there is an indication from the offeror that they must receive acceptance before it shall bind them (Household Fire and Carriage Accident Insurance Co v Grant). Furthermore, in the case of forms of communication which are instantaneous, the acceptance occurs at the moment the communication is received by the other party (Entores v Miles Far East Corporation). Therefore, the position in general regarding instantaneous forms of communication is that the law in this regard seems to indicate that acceptance is effective on receipt. Finally, it is also worth noting that the terms of an offer must be unconditionally accepted otherwise any attempt to introduce new terms shall constitute a counter-offer (Hyde v Wrench). Advice to the Parties Analysis of the Law Albatt initially offered the contract for the service of their electronic processors to Budgett. The letter outlining this offer indicated that Budgett should reply by return of post. The case law in this instance suggests that a reply by post or an equally expeditious method will be acceptable (Tinn v Hoffman and Co). However, the letter did not reach Budgett until 6th September, due to an error in the address which was put on the letter. Nevertheless, Budgett did receive the letter on 6th September and, immediately upon receipt, accepted the offer and posted the acceptance letter at 11:00AM on the same day. According to the case law, the postal rule dictates that Budgett’s letter shall constitute an acceptance once it had been validly posted (Brinkibon Ltd v Stahag Stahl und Stahlwarenhandelsgesellschaft GmbH). However, Albatt had agreed by telephone to offer Cansys the contract on 5th September after not receiving any reply from Budgett, and Cansys duly accepted the offer. That said, Albatt did not send a notice of withdrawal of the original offer to Budgett until 6th September. This notice was sent by fax, which is an instantaneous form of communication (Entores v Miles Far East Corporation). A notice of withdrawal sent via this method shall become effective once it has been received if sent during office hours (The Brimnes). This is the case irrespective of whether or not the other party has had sight of the notice. The Legal Position of the Parties Albatt Albatt’s legal position revolves around the issue of when the fax setting out the notice of withdrawal was sent to Budgett. If it had been sent prior to 11:00AM, on 6th September, then it would appear that Albatt had not entered into a legally binding agreement with Budgett (The Brimnes). However, if the fax was sent after 11:00AM the issue would turn on when Budgett’s acceptance letter had been validly posted (Brinkibon Ltd v Stahag Stahl und Stahlwarenhandelsgesellschaft GmbH). If the letter was validly posted prior to the notice of withdrawal being received, Albatt will have entered into a contract with Budgett. If not, only the contract with Cansys will be valid. In light of the fact that the fax was received by Budgett at 10:30AM, no legally binding contract had been entered into between Albatt and Budgett (The Brimnes), irrespective of the fact that nobody read the fax until 5:00PM. Budgett Budgett’s legal position turns on the issue of when its letter of acceptance was validly posted, as set out above (Brinkibon Ltd v Stahag Stahl und Stahlwarenhandelsgesellschaft GmbH). If it the letter was validly posted before Albatt’s notice of withdrawal was received, Budgett can sue for breach of contract if Albatt does not honour the agreement. If the notice of withdrawal was sent outside normal business hours, however, it would not become effective until the following day (providing that this was a normal working day) (Mondial Shipping and Chartering BV v Astarte Shipping Ltd). It is noteworthy that a court would place much emphasis on the intention of the parties (Brinkibon Ltd v Stahag Stahl und Stahlwarenhandelsgesellschaft GmbH). However, given that Albatt’s fax was received by Budgett at 10:30AM on 6th September, a court would find that no contract had been entered into between the parties (The Brimnes). Nonetheless, Budgett may have a claim in neglige nce due to the mistake in the address put on the offer letter which was sent on 1st September and was directly responsible for the delay in Budgett’s acceptance being communicated to Albatt. Cansys Cansys communicated an offer to Albatt to do the servicing work on 4th September for  £160,000, per annum. However, the terms of an offer must be unconditionally accepted otherwise any attempt to introduce new terms shall constitute a counter-offer (Hyde v Wrench). Therefore, Albatt’s offer to give Cansys the contract for  £155,000, instead of  £160,000, would constitute a counter-offer which would negate the original offer. Nevertheless, Cansys accepted this offer and an agreement was struck between the parties. The facts of the case therefore indicate that Cansys entered into a legally binding contract with Albatt for the service of its electronic processors for the sum of  £155,000, per annum for five years on 5th September following a telephone conversation between the respective parties. Word Count: 1422 Bibliography Text Books Richards, P. (2008), Law of Contract, Eighth Edition, UK: Pearson Education Ltd Furmston, M. P., Cheshire, G. C. Fifoot, C. H. S. (2007), Chesire, Fifoot and Firmston’s Law of Contract, 15th Edn., USA: OUP Beale, Prof. H., Chitty on Contracts Volume 1: General Principles, UK: Sweet Maxwell Stone, R. (2011), The Modern Law of Contract, Ninth Edn., UK: Routledge Furmston, M., (2006), Powell-Smith and Furmstons Building Contract Casebook, UK: Blackwell Publishing Case Law Adams v Lindsell (1818) 1 B Ald 681 Blackpool and Fylde Aero Club Ltd v Blackpool Borough Council [1990] 3 All ER 25 Brinkibon Ltd v Stahag Stahl und Stahlwarenhandelsgesellschaft GmbH [1983] 2 AC 34 Chapelton v Barry UDC [1940] 1 KB 532 Entores v Miles Far East Corporation [1955] 2 QB 327 Gibson v Manchester City Council [1979] 1 All ER 972 Household Fire and Carriage Accident Insurance Co v Grant (1879) 4 Ex D 216 Hyde v Wrench (1840) 3 Beav 334 Mondial Shipping and Chartering BV v Astarte Shipping Ltd [1995] CLC 1011 Offord v Davies (1862) 12 CBNS 748 Powell v Lee (1908) 99 LT 284 New Zealand Shipping Co. Ltd v A M Satterthwaite and Co. Ltd [1975] AC 154 Spencer v Harding (1870) LR 5 CP 561 The Brimnes [1975] QB 929

Losada Colada The Power of Positive Thought and Action

Losada Colada The Power of Positive Thought and Action The Losada Ratio As part of a project to put together a weekend training in March, I have been given a leadership assignment: Losada Colada! â€Å"Losada Colada†? Whatever is that? In the terms it was given to me, my assignment is to communicate 3 positive things for every critical one. Let me explain: The Losada ratio is defined (see The Power of Positivity, in Moderation) as the sum of the positivity in a system divided by the sum of its negativity.  Amit Amin, in the above-referenced article on happierhuman.com, reported that a ratio of 3.0 to 6.0 is highly correlated with high performance in multiple areas of life. The ratio predicts divorce rates with 90% accuracy and is also highly predictive of the profitability and satisfaction of teams in organizations. College students with a positivity score of 3.0 or above exhibited higher emotional and social health. While there are known issues with the mathematics of how Losada ratios have been calculated, the basic premise is indisputable: As long as you are not unreasonably positive/optimistic in a way that could be harmful to your well-being, more positive thinking- and communication- will make you a more productive person with better relationships and a more fulfilling life. The Positivity Challenge Why then, even knowing this, do I find myself often focusing on the negative? I had a lot of training growing up on doling out criticism, and in my adult life I have even given myself a job where it is my job to find what’s wrong with someone’s writing and fix it. This is a very comfortable activity and attitude for me. I do make an effort to provide positive feedback in addition to the negative: When making comments on a document I often insert, â€Å"Love this word!† â€Å"Nice phrasing here!† â€Å"Yes YOU come through so much more now!† But somehow I almost always feel like I’ve pointed out more wrong than right, especially when editing the work of my writers. As project manager for this upcoming weekend workshop  www.transformweekendtraining.com, I am being trained to create group enthusiasm. My assignment of Losada Colada is intended to make me better at doing that with a team of people who, like me, are doing this work not as a paid job but for their personal growth. Without their buy-in, our project will likely struggle. And so I keep my instructions in mind: 3:1 ratio positive:negative. The Impact of Positivity Even before this assignment, I trained myself to say at least one positive thing before saying a negative one; saying three is taking extra focus. I like it because it is allowing me to see more of the strengths in the people around me than I normally see. I’m not doing a perfect job with this assignment. For instance, one of my team members (I’ll call him Ron) was holding two roles and not doing either of them 100%. I called him to relieve him of one of the roles, thinking he would be happy that some responsibility was being taken off his shoulders; but he was clearly hurt. I looked at how I had communicated. Had a done my Losada Colada assignment? Nope. I called Ron back, told him I had messed up and not done my assignment, then appreciated him for 3 things. He responded much better to that communication. And when I told our group about the change in leadership, I made sure to appreciate Ron for all he had done well. Ron took more action on his other role than he had in the 3 weeks before this communication! It worked. LinkedIn Losada As LinkedIn members and networkers, we can all practice Losada Colada. I received the following note in my inbox a few days ago: â€Å"Thanks for connecting with me Brenda, and more importantly the wonderful tips. I love them 🙂 I will definitely will spread the word about what a wonderful person and incredible resources you offer. I just signed up for mailers 🙂 YES!† This note made me feel great! It even got me to investigate further into the website this connection was promoting. He was practicing what he preached! I’m going to keep doing my Losada Colada assignment for the rest of my life. I will probably get more out of it than a I would from a sweet drink on the beach, though I do enjoy pineapple and coconut (non-alcoholic) beverages! How do you envision bringing Losada Colada into your relationships, both at home and at work? What do you think the impact might be? If you try it and see results, please share your stories!