can someone please help!
Sam the painter and Rob enter into a contract on 9 October 2006 for Sam to paint the
interior of Rob's house, according to specifications set out in the contract. The contract
provides that Sam will commence work on 16 October 2006. Sam starts painting that
day, and finishes the work required on time in the early afternoon of 19 October 2006.
***Earlier that day, at 9am in the morning, Sam and Rob have the following conversation.
Rob: 'I would like to get my grand piano back from where it is stored with my
neighbour, so I can play it at my daughter's birthday party tomorrow.' Sam: 'No worries
Rob.' Apart from saying hello and goodbye there are no other statements in this
conversation, and Rob leaves shortly afterwards to buy supplies for the party.***
returns that afternoon she is met with a scene of devastation. Although the painting has
been completed properly, the road in front of Rob's house is strewn with the shattered
wreckage of the grand piano.
After the painting was finished, Sam had driven her small
truck into the driveway of the neighbour's house, and loaded the piano onto the truck
with the help of her two assistants and the neighbours. Sam then drove out onto the road,
and 20 metres down the road had turned left into the driveway of Rob's house. At this
point, as the truck was turning, the gate at the back of the truck suddenly swung wide
open, and the piano came out of the back of the truck, falling heavily onto the road,
breaking up into several pieces, all of which are completely beyond repair.
one of my q. asks does the conversation on the 19
October 2006 contains a consensus (an offer and acceptance or agreement) sufficient
to support a contract? is there sufficient consideration?
Im confused as to whether it is an oral contract or a non contractual agreement!
Also Is sam liable for the piano in the tort of negligence?
I can speak to general principles of law, which are probably the same in Australia as here in the U.S., though I don't know for sure. The conversation Sam and Rob had about the piano appears woefully insufficient to me to form an oral contract. "I would like to get my piano back" is not the same as "I want you to go get my piano." I don't see that as an offer, nor do I see any consideration for a contract; there would need to be a promise to pay, by Rob, and a promise to perform the task, by Sam. That conversation constitutes neither, in my opinion.
Sam may very well be liable for negligence. Whether or not there was a contract, if Sam undertakes to move the piano, she has the duty to do so in a non-negligent fashion. There might be an issue as to who actually closed the gate on the truck; Sam could try to argue that the neighbor did so, and failed to do it properly. However, that probably wouldn't work, because it was Sam's truck (maybe the gate was faulty) and Sam was driving it, and Sam probably had the duty to check the gate before driving off. So, even if someone else didn't shut the gate properly, Sam was probably still liable.
I hope this helps!
NEAT! thank you so much. I really appreciate your reply!
in my essay i also wrote that the conversation was hardly a contract. (i am so glad i am on the right track) BUT, because he said NO WORRIES.. if in a breach/duty of care like in the subsequent case that follows, does the no worries response play any importance?
Also, because an earlier contract had already been formed, and assuming that the subsequent conversation was contract.. would the offer be considered as introducing new "terms" or "qualifications"?
thanks in advance.
Those are good questions. The "no worries" remark does not affect the breach of duty/negligence as far as I can see. "No worries" relates to the question of whether there was a contract. The contract issue and the tort (negligence) issue are two different things.
While I suppose one could make an argument that the comment introduced new terms to their already existing contract, the remarks were so vague, I don't see how that argument could prevail. What were the "terms"? Even if saying "no worries" obligated Sam to go get the piano, where is the consideration? Rob didn't promise to pay her anything more for doing it. Rob's comments sounded more like asking for a favor than offering new terms to a contract, in my opinion.
In the real world, that 9 am conversation would never be held to create an enforceable contract; the only way a lawyer would take that case is with a hefty retainer up front. ;-))