The case primarily deals with the issues of the contract law and may partially cover several aspects of the tort law. If it is proven that the malpractice perpetrated by Georgia was intentional n its nature and if statutory provisions of the state where the transaction took place define intentional malpractice as a tort. Considering the fact that the issue of the tort law will not be raised by the judge, the paper is
entirely focused on the contractual aspects of the case.
Moreover, a twofold analysis will be provided. The first possible scenario is that the contract was, in fact, not concluded under the doctrine of intenional misleading. Following this assumptuon, tne aspects concerning resitution and ensuin9 damages, in paricular general damages, expectation damages and punitive damages wll be analyzea.
The second alternative emerges in the event when the court decides that the contract was indeed concluded between the parties. In this case, it will be reasonable for Malcolm to plea that contract was breached by Georgia, that the breach was fundamental and the same type damages shall be awarded together with the courts’ and attorneys’ fee.
In any event, from the purely legal standpoint, the situation is favorable for Malcolm, and in case any of these scenarios develops, he is likely to recover his damages as well as the court’s and attorneys’ fees
The Contract Was Not Concluded under the Doctrine of Misleading Following the statement of the prominent United States law professor, J.
D. Allan Morison, neither legal nor physical entity must engage in conduct that is misleading or deceptive in its nature, in order to motivate his counteragent to enter into the contract (Morrison, 1996). In Laidlawv. Organ the court ruled that in the event the seller creates the impressIon that he possesses specific characteristics or expertise required to perform the contract, while, in fact, he does not possess them and only hopes that he will be able to fulfill the provisions of the contracts (McKendrick, 2005).
In Obde v. Bolles, the respondent was obliged to pay damages for his failure to disclose the specific circumstances related to the subject matter of the bargain (Morrison, 1996). In this case, the required Circumstances, i.e. he lack or the protessional experience (highest standards in animal care” ), were not only ithheld, but they were deliberately exaggerated and even incorporated into the contract
creating a false impression that the defendant was skilled and qualified enough to be the party of this transaction. The clause of the contract concluded between Malcolm and Georgia sets forth that ‘Georgia maintains the highest standards in animal care’, whereas the statement of the fact manifests that she incorrectly feeds the fish the rabbit food and the rabbit the fish food’. These substances are different in their physical natures. While foodstuff for a rabbit is majorly based on vegetables and is solid in form, the fish food is usually in a form of groats. The fact that Georgia mixed these substances purports that she lacks sufficient qualifications to provide care services to pets on a
The statement of the fact also signifies that she acts as a financial planner. Although it is not specified in the statement of tacts, it can be assumed that she cannot effectively combine two entirely antipodal practices.
According to the “Dictionary of Modern Legal Usage” of Bryan A. Garner the contract is an agreement willingly concluded Detween two or more parties With the intention to impose legal obligations on each other. (Garner, 1995). The main elements of the contract are a mutual consent and consideration (Collins v. Godefroy 1831, Morrision, 1996). In the present case, there is a high probability that it wil
rule that the offer was communicated in a clear way and was accepted respectively. f the court rules that misrepresentation, which was discussed in the previous paragraph, then the valid contract was entered into by the parties. The fact that it was signed by Malcolm connotes that Georgia’s offer was accepted and the consideration was negotiated. Considering all that elements of the contract, they agreed on by the parties, the contract will be probably defined as valid by the court. In this case, Malcolm is strongly admonished to plead that the breach occurred and that this breach was fundamental in its nature.
According to professor Treitel, breach of the contract is defined as the act of violation by one of the parties by means of non-performance of the contract, according to its terms or by interfering with the other party performance thereof (McKendrick, 2005) In this case, Georgia was obliged to feed animals according to the instructions given by Malcolm. Besides, Malcolm could reasonably rely on Georgia’s experience skills and expertise (see Smith v. Bolles, Chen-Wishaft, 2005). Neither Georgia Tollowed the instructions given by Malcolm, nor did she fulrill tne clause or the contract, where it was precisely and explicitly stated that “Georgia maintains the highest standards in animal care.
Under the concept of fundamental breach (also known as repudiatory breach), if the violation of the Contract is so substantial in its essence, that the aggrieved party is entirely deprived of what this party expected to receive under the contract (Morrison, 1996). The defense available under this type of violation includes not only damages, but also avoidance of the contract is permitted. According to the Statement of the Facts, Malcolm expected that his Tish Would be alive and heaithy upon his arrival and his rabbits, apart from being alive and healthy, will maintain their appearance on the level, which will be sufficient to win the competition. Theretore, it can be interred that the breach was
If the contract is adjudicated as void, the parties are respectively entitled to seek restitution, i.e. what each participant of the transaction possesses before the agreement was concluded (Morrison, 1996). In the present case, Malcolm’s paid fee should be returned to him and, due to the intangible character of her servVIces, Georgia obtains nothing.
The first types of the damages that are likely to be awarded are so-called actual damages. It is the compensation for a loss that is the natural and logical result of the breach of the contract (Morrison, 1996). In this case, the plaintiff must receive indemnification tor flooding the premises, as the obligation to ensure the normal conditions of the apartments existed, for the demise of the fish and the breakdown of the aquarium, and for the costs the plaintiff needs to spend to vet the rabbit.
Under the concept of the benefit of the bargain damages (also known as expectation damages), one should understand the indemnification which is sought to put the aggrieved party in the position the party would have been had the transaction performed, in accordance with its terms (Smith v. Bolles; Garner, 1995). In the present case, the expectation damages should be awarded to compensate the plaintiff for the rabbit competition that he will not win due to the inappropriate appearance of the rabbit. First and foremost, if Malcolm manages to prove that his chances to win the competition were high enough to win the contest (the statement of the facts does not accurately informs whether the rabbit had previous Successtul performance and whether any objective evidence except Malcolm’s Own opinion was available), then naturally Malcolm is entitled to obtain $ 10 000 that he can receive, if the competition is won. Secondly, the fact that the fish was killed gives him the opportunity to seek expectation damages for the uncollected offspring, t the fish was of a rare and exotuc species and was of the high monetary value.
The clause of the contract provides that ‘Georgia will not be liable for death or illness of tropical fish due to their specific Vulnerabilities’. First of all, if this provision is adjudicated valid, then it does not derogate liability for the aggravation of the externality of the rabbit and the flooding of the premises. Secondly, the reservation is not applicable, because naturally the demise of the fish was not caused by specific vulnerabilities. Under the concept of specific vulnerabilities, the one must understand the Circumstances that cannot be foreseen by the breaching party at the time of conclusion of the contract (Garner, 1995). Reasonably, prudent person must understand (Chen-Wishart, 2005) that if the fish is fed by the rabbit’s nutrition, there is a considerably high probability that the fish will die or will be seriously harmed. Therefore, the tact that Georgia contused with the foodstufs was due to her negligence or unprofessionalism, and these two factors do not eradicate the liability under the provision in question.
There are no legal grounds for Georgia to sue Malcolm. The contract, if it is deemed valid, was diligently performed by him. Although Malcolm ordered the bank to terminate the payments under the contract, this demeanor is allowed under the law, if for the one parties of the contract becomes evident that the counterpart is not going to fulfill his obligation and this evidence is substantial (Chen- Wishart, 2005). The demise of the fish, the death of the rabbit and the flooding of the house expressly signified that the contract would not be fulfilled. Therefore, the only strategy for Georgia is to prove that she has acted diligently to mitigate damages.