LEGAL ASPECT IN NUTRITION AND DIETETICS THE LAWS OF TORT
• Definition of terms
• General defenses
• Specific tort The laws of tort
Tort law refers to the set of laws that provides remedies to individuals who have suffered harm by the unreasonable acts of another.
Tort is conduct that harms other people or their property.It is a private wrong against for which the injuried person may recover damages i.e momentary compesantion.The injured party may sue the wrong doer (tortfeasor) to recover damage to compensate for the harm or loss incurred.
Different between crimes and tort
A crime is a wrong arising from a violation of a public duty.A tort is a wrong arising from the violation of a private duty.
General defenses
Defense is used to refer to those arguments with when usedpersuades the courtto conclude that the defendant in a case is not guilty.
Defense of tort include:
• Consent
• When plaintiff is the wrong doer
• Inevitable accident
• Act of God
• Act in relation to private defence
• Necessity
• Act done in respect to statutory authority
The defence of consent This defense is based on the principles of volenti non fit injuria.A person,who has voluntarily agreed to suffer harm,cannot claim damages for such harm.This consent to suffer harm can be either express or even implied.However,such consent must be given freely and not obtained by fraud or way other illegal means.
When plaintiff is the wrong doer This defense is based on the maxim Ex turpi causa non other actio which means no action rises from an immoral cause.so when the action of the plaintful is unlawful itself,it might lead to defense in general.
Inevitable accident Inevitable accident is such where the injury could not have been avoided inspire of reasonable care on part of the defendant.In a suit for tort it is always a good defense if it can be shown that the defendant could not avoid the injury sustained by the plaintiff inspire of his reasonable effort.
Act of God Act of God is an inevitable accident arising out of the working of natural forces which is beyond control and unprecedented in nature and type.It must be extraordinary and unanticipated as well.
The rules of strict liability(Asin Rylands Vs Fletcher) has incorporated the concept of this defense.
Act in relation to private defense In case of immigrants threat to life or propert,use of forces for defense of the same is justified.However,use of the same is be reasonable and should be in proportion to the requirement.
Necessity If damage is caused to avoid a greater damage,it becomes a good defenses.
Act in respect to statutory authority Any damage arising out of an act that the law prescribes or the statute authorized will never become actionable even though in absence of such statutory authority it is an offence in tort.
Capacity in tort
Capacity means the mental capacity to recognize having a duty of care and knowing how not to breach it.For example if a young child accidentally hurts a playmat,the child cannot be sued for negligence,because the child lacks the mental capacity to know whether or not what he is doing is negligent.
Specific tort
Tort law divides most specific torts into three general categories:
Intentional tort the causing of harm by an intentional act,such as intentionally conning someone out of his money.
An intentional tort is a civil wrong that occurs when the wrong doer engages in intentional conduct that results in damage to another.Stricking another person in a fight is an intentional act what would be the tort of battery tort of battery is also called an assault.
Negligence tort the causing of harm through some negligence act such as causing a car accident by running a red light.scholars also negligence as a failure to follow the degree of care that would be followed by a reasonably prudent person in order to avoid foreseeable harm.
Negligence occur when a party fails to demonstrate the kind of care a prudent person would take in the same situation and an injury results from the action on inaction.
There are five elements necessary to prove a negligence case:
• Defendant owed a duty of reasonable care
• Defendant did not behave in a reasonable manner to demonstrate care
• Plaintiff suffered an injury as a result of the defendant’s or inactions
• The injury caused actual damages
• Proximate cause:defendant’s actions or inactions were the cause of injury
Strict liability torts the results of harm incurred due to the actions of another with no finding of fault by the defendant.
THE LAWS OF CONTRACT
• Definition of terms
• Types of contracts
• Essential of a valid contract
• Reality of contract Definition of terms
Laws of contract
The law of contract is concerned about the legal enforceability of promises.In that context,a contract may be described as an agreement that the law (the courts) will enforce.This notion of enforceability is central to contract law If you break (breach) the contract,the other party has several legal remedies.Firstly,he can sue you for damages for breach of contract.Also,he can ask the court to order you to perform the contract.If you breach the contract,the other party has several legal remedies.
N/B:A contract is an agreement between two or more parties which will be enforced by law. Types of contracts
Based on validity Valid contract
An agreement enforceable by law when all the essential features of a valid contract are present. Voidable contract
A contract becomes voidable when the consent is not free.
Usually,a contract becomes voidable when the consent of one of the parties to the free.e.g A,threatens to shoot B if he does not sell his bike to A.B agrees .This contract is voidable at the option of B.
Void contract
A void contract is the contract that has no legal effect at all.
“A contract which ceases to be enforceable by law becomes void,when it ceases to be enforceable by
law.”
On the basis of formation Express contract
Contract s formed with the words spoken or written,is an express contract.e.g. A tells B on phone that he wants to buy his car for Ksh.80,000 and B accepts the offer on phone,this is an express contract.
Implied contract
When the offer and acceptance is made by acts or conduct of the parties,it is an implied contract.
For e.g. A,a cookie in uniform takes up the luggage of B at railway station and B allows him to do so,then the law implies that B will have to pay for the services of A.This is an implied contract.
Quasi-contracts doesn’t arise by virtue of any agreement,but the law infers or recognizes these contracts under special circumstances.
For e.g. claims for necessaries supplied to an incapable person.Responsibilitiesof finder of goods On the basis of execution
Executed contract
A contract is said to be executed contract when both the parties to a contract have performed their obligations.
For e.g. when a book seller sells a book on cash payment,it is an executed contract because both the parties have done what they were to do in a contract.
Executory contract
When either both the parties to a contract have still to perform their share of obligations,then it executory contract.
For e.g. Abuts a car from B for ksh.100,000.Now,A hand made the payment but B has not transferred the contract,it is an executor contract as the parties have to meet the obligations.
Essential of a valid contract(requirement for there to be a contract) Agreement-offer and acceptance
In order to create a valid contract,there must be a lawful offer by one party and lawful acceptance of the same by the other party.
The adjective lawful means offer and it’s acceptance must confirm to the rules laid down in the Indian
contract act regarding valid offer and acceptance and it’s communication.
Legal purpose
In case,there is no such intention on the part of parties,there is no contract.Agreements of social or domestic nature do not contemplate legal ralations.
Lawful consideration
Consideration has been defined in various ways.Consideration is the price for which the promise of another is brought.Consideration is known as good pro-que or something in return.
Consideration is an essential elements in a contract. Capacity to contract
The parties to an agreement must be competent to contract.If either of the parties does not harm the capacity to ccontrac,the contract is not valid.
Accordingly,the following personsareincompetents in contract.
• Minors
• Persons of unsound mind and
• Persons disqualified by law to which they are subject Consent to contract
Consent means the parties must have agreed upon the same thing in the same sense Lawful objects
The object of an agreement must be lawful object has nothing to do emwith consideration.It means the purpose or design of the contract.
The object is said to be lawful if:
• It is forbidden by law
• It is of such nature that permitted it would defeat the provision of any law
• It is fraudulent
• It involves an injury to the person or property of any other
• The court regard it as immoral or opposed to public policy Certainty
According to section 29, Agreement the meaning of which is not certain or capable of being made certain are void.
E.g. A agree to sell B a 100 tones of oil,there is nothing to show what kind of oil intended,the agreement is void due to the absence of certainty.
Possibility of performance
Condition for a contract should be capable of performance.If the act is impossible in itself,physically or legally,if cannot be enforced at law.
Not declared to be void or illegal
The agreement though satisfying all the condition for a valid contract must not have been expressly declared void by any law in force in the country.
Legal formalities
An oral contract is a perfectly valid contract,expect in those cases where writing, registration e.t.c. is required by some statute.
Capacity to contract
Definition of capacity to contract Every person is competent to contract who is of sound mind and is not disqualified from contracting by any law to which he is subject.
Persons disqualified from entering into the contract
• Minors,who are not of the age of majority
• Persons of unsound mind and
• Persons disqualified to contract by any law (insolvents)
Rules relating to an agreement with a minor:
• First rule-law protects minors against their own inexperience and against possible improper designs of those more experienced.
• Second rule-the law should not cause unnecessary hardship to persons who deal minors. Person of unsound mind
A person is said to be of sound mind for the purpose of making a contract if,at the time when he makes it,he is capable of understanding it and of forming a rational judgement as to its effects upon his interest.
Unsoundness may be categorised as:
• Idiots-has completely lost his mental powers
• Lunatic-the person losses the capacity due to the illness of brain or mental bodily distress
• Drunkenness
Persons disqualified from contracting
• Alien enemy
• Foreign sovereign (prior sanction of central govnt)
• Corporation-contract is ultra vires if not in MOA
• Insolvents-all property in hand of official assigne.He can center into contract when court passed an order of discharge
• Convicts-persons who are sentenced to imprisonment cannot enter into contract during that period
Reality of contract
Contract of employment Definition
Employment refers to a relationship between two parties, generally based on a contract where work is paid for,where one party,which may be a corporation,for profit, not-for-profit organisations, co- operative or other entity is the employer and the other is the employee.
CONTRACT OF EMPLOYMENT
• Definition of terms
• Duties of employers
• Duties of employees
• Terms imposed by statutes
• Types of dismissal
• Reasons for dismissal
An employee means an individual who has entered into or works under a contract act of employment Contract of employment means a contract of services or apprenticeship.
A servant is a person who is a subject to the command of his master as to the manner in which he shall do his job.
Duties of employers
• Provide a reasonable amount of work
• Provide a safe and healthy work environment
• Compensate employees in accordance with the terms of the contract of employment
• Indemnity employees against liability and losses resulting from following: management’s instructions
Duties of employees
• Obey a lawful, reasonable order within the terms of the contract of employment
• Serve faithfully
• Cooperate with the employer
• Perform duties with proper care and deligence
• Account for all money or property received
• Indemnity the employer in appropriate case and
• Not to misuse the confidential information acquired while in service Terms imposed by statutes
A contract of employment is an agreement between the employer and amployee some term such as: Statutory terms are imposed,varied or regulated by law such as the minimum statutory notice period
Express terms these are terms that have been specifically mentioned either in writing or orally and have been agreed by both employer and employee
Implied term these are terms that are not set out in writing or agreed orally,but maybe too obvious to need to be recorded.An example of this may be that the employer will not steal from the employer
Incorporated terms are things that have been put into contracts from work rules or collective agreement Types of dismissal
There are three types of dismissal claims Unfair dismissal
Unfair dismissal can happen in three circumstances
If an employee is dismissed without fair reason-fair reasons include poor performance,gross misconduct such as stealing or illegal drug use and prolonged absence due to illness
Important things to note;only employees who have been continuously employed for one year are eligible to bring an unfair dismissal claim and they only have three months from their dismissal to do so.
Wrongful dismissal
Wrongful dismissal is essentially a breach of contract claim.An employee can claim this when they are dismissed in breach of their employment contract.For example,when an employee dismissed an employee without giving them the correct notice period as demanded by the contract.Howecer,employers can avoid a wrongful dismissal claim if they pay the employee for the notice period they should have received.
Constructive dismissal
Constructive dismissal occurs when an employee quit because of a gross breach of contract by their employer.Example of a gross breach of contract include:
Bullying or harassing an employee.
Forcing an employee to work in dangerous conditions. Reasons for dismissal
• Continually missing work
• Poor discipline
• Drug or alcohol abuse
• Theft or dishonesty
• A statutory restrictin:An employer can dismiss an employee if he breaks law
• Redundancy,it’s a dismissal from work attributed to employer to reduce workforce maybe
because of new technology,the job you were hired for no longer exist
• Illness
Business enterprises
• Types of business
• Methods of acquiring business premises Business enterprise
The word enterprise has two meaning.First an enterprise is another name for a business for example
“Sumeiyah cowbells enterprise” or “Rukia set up her successful enterprise after leaving teaching”
Secondly,the word enterprise describes the actions of someone who shows some initiative by taking a risk by setting up,investing in and running a business
Look at the key word above-initative and risk.
A person who takes the initiative is someone who makes things happen.He or sue tends to be decisive.A business opportunity is identified and the person does something about it showing initiative is about taking decision and being bold everyone is like that!
A person wanting to set up a business has to consider what legal form organisations should take.
Factors influencing this decision are:
• How many owners the business is going to have
• What is the tax position of the business
• Can the owner take the risk of unlimited liability
• Does the owner want all the business profits
Types of business
Sole trade
What is a sole trader?
– A single owner of the business who has unlimited liability
– Sole trader is a person who owns and operates their own firm.They may or may not employ other people
– It is important to remember that a sole trader is usually a relatively small business and the capital that has been invested comes from one source and that is the owner
– Sole trader are common business.Example of a sole trader business is a hair dresser.
Advantages of a sole trader
Profit they are kept by the owner.There are no other shareholders so the profit don’t have to be split
Easy to run every business is difficult to run successfully but sole trader is the easiest form of business
Easy to establish hardly any complicated forms or procedures.Some of the other legal forms have to have legal.
Total control the owner is incharge of the business.He/she does not need to discuss their decisions with any other owner.They have total control of the business
Privacy as there are no shareholders in the business you only need to inform inland revenue and customs and excise in order for them to see how well the sole proprietor is doing
Flexibility very flexible working hours as sole traders is it’s own boss e.g rather than working on Friday he or she decides to work on Sunday instead.
Disadvantages of sole trader
Illness if I’ll the business might be forced to shut down stopping the income and profit
Unlimited liability if the things don’t work out as planned the sole proprietor could lose all its investment
Lack of continuity because the owner is the business there is no guarantee that the business will carry on running once the owner decided to stop
Limited specialization as the owner has to be a purchaser,lorry and accountant there is no time for this person to specialize in all fields
Limited economies of scales e.g a small construction business would have to hire a lorry to do the
required task as this would be cheaper but larger business would buy it’s own as this would prove to be
cheaper due to the fact that lorry is in continuous use.
PARTNERSHIP
Partnership is a type of businesses where two or more people agree to own,run and trade.
Partnerships require a high degree of trust and are very common in fields such as medicine.
When setting up a business a person has to decide whether to set up a business on their own or with others.
This will depend on:
• How much control they want over the business
• Are they prepared to share the profit
• Can they raise necessary capital to start up the business by themselves
Advantages of partnership
– Easy to set up
– Solicitors and accountants are not required to run the business
– Profit belong to the partners
– Privacy only tax authorities need to be told how much partners are earning and profit of the business
Disadvantages of partnership
– Disagreement between partners,which can be bad for business
– Some partnership don’t have a deed of partnership which can be bad for business
– Most partnership are relatively small business e.g. shops,farms Limited companies
What is a limited company?
Every limited company has a shareholder.The term limited company refers to the fact that if the company goes into debt each shareholder risk losing only the amount he has invested and his personal belongings are safe and can’t be touched .That’s is a limited company.
The owners of the company are called shareholders They have limited liability
Two documents required by register of companies to set up a limited company are:
The article of association this is basically the rule book of how the company must operate.It is agreed by the company setting up the business.The article of association gives details such as voting,rights of shareholders,how the profit will be distributed,how decisions will be reached etc
The momorandum of association this is basically the CV of the company.It tells people what the business does and where it operates from.In it you could find the details such as the names of the companies and the addresses of their headquarters.
Cooperatives Franchising
A franchise is a business established by one person who the buys copy rights of another.Firm and is allowed to produce and distribute that product.
What the franchisor provides?
– Training to start the business
– Equipment e.g . shop fittings,machinery
– Material used for production
– Finding customers e.g. advertising
– Back upservices e.g. loan,advice
– A brand name e.g. coca cola
– An exclusive area in which to sell the products
– Goods or services
– Multinational companies Methods of acquiring business premises Independently sell for a brand
One of the easiest ways to be your own boss is to sell for an established brand.This is what a lot of insurance agents and real estate agents do.You can usually open your own office at some point,set your own hours and live a “be your own boss” lifestyle which being associated with a brand that people are familiar with.Its a good way to start a business without having to start completely from scratch.
Freelance or consult
One of the easiest ways to start a business is to freelance or consult.You don’t need a lot of start up cash to do this,and you have the potential to trade on your knowledge and skills and brand to make money if you have knowledge and skills,you can start a business as a freelancer or consultant.
Franchise
Another way to be your own boss with the help of an established brand is to buy a franchise.You have access to highly,recognized brands if you can afford to buy into the franchese.Msny franchises also help you set up with advertising and more.
Start a service business in your community
Don’t forget that you can start a service business in your community.Look around,is there need you can
fullfill!? From day care to dog walking there are plenty of service-priented needs.
You can start a service business tutoring,doing handyman work or just about any other thing that people
don’t want to do and are willing to pay someone else to do.