Assessment Of An Employment Contract

Legal Relationship Between Parties

1. In a few sentences, briefly provide an introduction explaining the gist of the contract. That is to say, what is it essentially about What is the context of the contract Who are the parties to the contract What is the relationship of the parties
2. In your opinion, did the parties intend to enter into a legal relationship That is to say, did they intend the contract to be enforceable
3. Can you identify which party made the offer and which party accepted it
4. How was the offer communicated and how was it accepted
5. When and where was the contract formed Explain your answer.
6. What consideration is given by each of the parties That is to say, what is the “bargain” between them
7. Were any pre-contractual representations made by any party to induce the formation of the contract

8. Does the contract incorporate by reference or attach as a schedule any other documents or agreements Does the contract refer to any legislation
9. In your opinion, is the contract a standard form contract
10. Does the contract have an entire agreement clause Briefly explain that type of clause.
11. Are there any particular terms highlighted, bolded, underlined or in larger font in the contract Why might a party wish to set out particular terms in this manner
12. Does the contract have a force majeure clause Why might the parties wish to include such a clause
13. Does the contract contain a confidentiality clause Why might the parties wish to include such a clause
14. Do any of the parties promise in the contract not to do certain things
15. Does the contract specify how the parties can amend the contract If not, can the contract be amended, and if so, how

16. If the contract provides for a payment of funds, delivery of goods, or performance of services, does it specify the timing or method of such payments, delivery or performance
17. Can the parties assign their performance of the contract or their rights under it
18. Do any of the parties have an option to terminate the contract
19. Does the contract contain any conditions subsequent or conditions precedent If so, what are they Explain what these terms mean.
20. Does the contract have a term How does the contract come to an end, or does it
21. Does the contract specifically identify anything that would constitute a breach of the contract
22. If there is a breach of the contract, who can sue and be sued under the terms of the contract
23. Does the contract provide how the parties are to resolve disputes that might arise If not,how will disputes be settled
24. If there is litigation in court, which laws would apply and which courts would have jurisdiction Does the contract specify this

25. What types of remedies might each of the parties likely seek and a court likely award in the event of a breach in the context of your contract Explain your answer.
26. Give an example of where expectation damages might be awarded in the context of your contract in the event of a breach by one of the parties and how a court would calculated them.
27. Does the contract seek to exclude or limit the amount or type of any damages Are such limitation of liability clauses enforceable Explain why or why not.
28. Does the contract have a liquidated damages clause Briefly explain how one works. Additional Analysis
29. Are there any other terms or aspects of the contact that are noteworthy, unusual, or to which you wish to draw attention.

Legal Relationship Between Parties

Question 1

The chosen contract for this assessment is an employment contract. The motive behind the development of this contract is to eliminate all the future possible conflicts between the parties. There are two parties namely Jack and Kate. As stated above, this is an employment contract and therefore the relationship between the parties is of the employer (Jack) sand employee (Kate).

Question 2

For every valid contract, there must be an intention to create legal relationship (E-lawresources.co.uk, 2018). This is the contract where both of the parties i.e. Jack and Kate wanted to develop an employment relationship with each other, hence to say that yes, they both were intended to create legal relationship. In this manner, the contract developed between them was an enforceable one.

Question 3

In the employment contracts, the employer makes an offer.  In the addition to the identification of the parties to the contract, this is also identified that Jack, being the employer of Kate made the offer. As this is a valid contract, therefore, it is clear that offeree i.e. Kate has accepted the offer.

Question 4

An offer must be communicated through a valid mode. Parties to the contract can decide the mode of communication (Miller, 2014). In the chosen contract, jack made the offer in a written form. A letter  is considered a valid mode of communication in a contract. Further, Kate also reverted her acceptance by singing the contract presented by John.

Question 5

A contract is formed as soon as an offeree gives his/her consent to the same. However, this is necessary that all the elements of a valid contract must be there (Businesslawbasics.com, 2018). The subjective contract has been developed in Ontario, Canada. When Kate replied to John, the contract gets developed between them because all the other elements such as consideration and intention of the parties to create legal relationship were there.

Question 6

In the contracts of employment, the consideration for employees is the remuneration that their employer pays. On the other side, the services of an employee are a consideration for employers. In the contract made between John and Kate, they have decided that John will pay 538 C$ to Kate and Kate has to provide her accounting services to John’s Organization in return under clause 6.

Question 7

As the name implies, pre-contractual representation is a situation where one of the parties to the contract makes some representation to another party to the contract about a fact of subject matter or other terms (Lexology.com, 2014). The intention behind such representation is to induce the other party to enter into a contract. In the subjective contract, John has made a representation of a safe working environment for Kate under clause 7.

Communication of Offer and Acceptance

Question 8

Yes, the contract developed here contained the reference for the interview conducted between Kate and HR of John’s organization. In addition to this, the salary and other benefits of Kate were mentioned in separate annexure, reference of which has been given in the employment contract. Under clause 5 Further, the contract has been developed under the employment laws of the Ontario states of Canada that is the Employment Standards Act (Settlement.org, 2018).

Question 9

The contract developed between John and Kate is not a standard form of contract as they have introduced some terms and conditions according to their mutual agreements. The contract cannot be considered as a standard contract as the only format of a contract was taken from a source; nevertheless, they have set rest of the conditions according to their mutual arrangements.

Question 10

Yes, the contract contained the entire agreement clause (12). It was mentioned in the contract that it is a final contract between the parties and both the parties need to look upon the same in case of any issues. Any condition or term that has been set out between the parties will not be considered valid if the same are not a part of this contract.

Question 11

Yes, there are certain terms that are mentioned in bold and italic. The terms are related to the termination of the employment contract. It means the events when the contract will be considered as terminated are mentioned in these points. Parties have decided to mention this term as the same is very significant and the relationship between John and Kate would no longer remain in existence after the event mentioned in these terms.  

Question 12

A force majeure clause is the one that allows a party to terminate the contract in some of the special circumstances (Contractstandards.com, 2018). John and Kate have inserted such clause (Clause 13). In an employment contract there is always a possibility of misconduct on the part of employer as well as employee, therefore they have stated some event force majeure clause where the innocent party would be able to breach the contract lawfully.

Question 13

Yes, the confidentiality clause was there in the point no. 16. John, being an employer was concerned about the confidentiality of his business information. As earlier stated that Kate was appointed as an accountant and in such a situation, she was expected to have access to all the financial information of John’s business. Therefore, to keep that information secure, John has inserted this clause.

Termination Clauses

Question 14

Yes, John, being the employer has made the promise to make timely payment of remuneration to Kate and to provide a safe working environment for her. On the other side, Kate has made the promise to keep the business information secure and to work in the manner prescribed by John without doing any misconduct.

Question 15

Yes, parties to the contract have decided the manner in which contract can be amended under clause 18 of the contract. It was stated in the contract that any of the parties can show their intention of alteration to other. By mutual discussion, they can decide to amend one or more condition of the contract.

Question 16

It is an employment contract in which Kate was an employee under the very first clause of the contract. The manner in which she was expected to provide her services was far crucial for John. In addition, this, the mode and other condition of payment of remuneration by John are also a part of this contract. These terms include shift timing of Kate, the manner of performance by her and manner of payment of remuneration by John.

Question 17

No, the contracts of employment demand specific performance (Legal Vision, 2018). In this contract, Kate had some specific skills for which John has appointed her as an employee. She cannot assign her duty to anyone else. However, John can assign his obligation to a third party, as business transfers are common in the commercial world that result change in employer for the employee.

Question 18

Yes, both of the parties have an option to terminate the contract. As mentioned earlier that parties have decided the events in which employment contract can be terminated under clause 10. The events are open for both the parties. It means both of the parties do have an option to terminate the contract subject to the other condition of their contract.

Question 19

A condition precedent is an event that must occur before happening of something else. These conditions or event are required to fulfill the order to make a further deal (Translegal.com, 2018). In opposite of the same, condition subsequent refers to an event happing of which can end the contract (Upcounsel.com, 2018). John and Kate did not introduce subsequent and precedent conditions.

Question 20

In clause 10 and, 19 terms are mentioned according to which this contract will end. In clause 10 terms related to the termination of the contract are mentioned. In addition to this, clause 19 states that by giving a notice of 30 days in advance, John and Kate can end this contract without breaching or terminating the same.

Breach of Contract

Question 21

Yes, under clause 20 of the contract the events are mentioned that will be treated as a breach of contract. These terms include some behavior related events at the end of both John and Kate, which will be treated as a breach of contract. According to this clause, any terms that are necessary to follow, nonfulfillment of the same will be treated as a breach.

Question 22

According to clause 21 of the contract, in case of any breach, the innocent party will be able to sue the guilty party. It means if John would breach the contract, then Kate will be able to sue him and if Kate would breach the subjective contract then John would be entitled to sue her.

Question 23

Yes, parties have decided the manner in which a dispute would be resolved between them. One can find the related term under clause 14 of the referred contract.

Question 24

Yes, the contract has been developed in the state of Ontario of Canada. The subjective contract has specified that in case of any dispute, the court of state will hear and entertain the dispute. In case of litigation, the provisions of employment standard acts will be applicable and the same is mentioned under clause 15 of the contract.

Question 25

In case of breach of contract, the court can award many kinds of remedies to victim party that includes the specific performance of the contract and monetary damages (jec.unm.edu, 2018). In the subjective contract, the court cannot provide the remedy of specific performance as the same is related to personal skills. The court may provide damages as a remedy to the victim party.

Question 26

Expectation damages are those that an innocent party can demand in the court from a guilty party for breach of contract. Expectation damages are there to put the innocent party in the situation that would be there in case performance of the contract. Expectation damages can be awarded if the cause of termination of contract Kate will suffer from a loss of salary. Court will calculate the damages according to the amount of salary of Kate.

Question 27

No, the contract made hereunder did not include any clause that excludes or limit any remedy for the innocent parties. An exclusion clause in a contract is that which limits the liability of one or both the parties to a contract up to a limit (Inbrief.co.uk, 2018). This is to be stated that any exclusion clause that limits the entitlement of an innocent party. Further, an exclusion clause should not be in against of law. Limitation of liability clause is valid in general but the same must not be against or outside of the law.

Question 28

Liquidated damages are the specified amount of compensation that an innocent party can demand from a guilty party at the time of breach of contract (Business Dictionary, 2018). In the specified contract, parties have introduced the liquidated damages clause that is clause 22. The manner of working of the same is very easy and clear. John and Kate have decided that in case of any breach, the guilty party would be liable to pay 100 C$ to the innocent party.

Now in case of any breach or dispute, the court can reward any other remedies to victim party in addition to this damage. It means the innocent party will be entitled to receive Liquidated damages.

Question 29

Yes, terms related to vacations are there which are significant and need an extra attention of John.  These terms are mentioned under clause 4 of the contract.  In conjunction with this, clause 5 of the contract contains the provisions related to the probation period of the employee. Both the employer and employee developed these terms in order to remove further confusions.

 References

Business Dictionary. (2018). liquidated damages. Retrieved From:  https://www.businessdictionary.com/definition/liquidated-damages.html

Businesslawbasics.com. (2018) Chapter 18: Contract Law. Retrieved From:  https://www.businesslawbasics.com/chapter-18-contract-law

Contractstandards.com. (2018). Overview. Retrieved From: https://www.contractstandards.com/public/clauses/force-majeure

E-lawresources.co.uk. (2018). Intention to create legal relations. Retrieved From: https://e-lawresources.co.uk/Intention-to-create-legal-relations.php

Inbrief.co.uk. (2018). Exemption Clauses in Contract Law. Retrieved From: https://www.inbrief.co.uk/contract-law/exemption-clauses-in-contract/

jec.unm.edu. (2018). Remedies For Breach Of Contract. Retrieved From:  https://jec.unm.edu/education/online-training/contract-law-tutorial/remedies-for-breach-of-contract

Legal Vision. (2018). My Contract has Been Breached, Can I Get an Order for Specific Performance? Retrieved From: https://legalvision.com.au/my-contract-has-been-breached-can-i-get-an-order-for-specific-performance/

Lexology.com. (2014). Are pre-contractual representations “continuing”? Even if the contracting parties change? Retrieved From:  https://www.lexology.com/library/detail.aspx?g=014a8afa-94c4-4092-9f11-34a1df85f378

Miller, R., L. (2014). Business Law Today, Comprehensive: Text and Cases: Diverse, Ethical, Online, and Global Environment. USA: Cengage Learning.

Settlement.org. (2018) What are my rights as a worker in Ontario? Retrieved From: https://settlement.org/ontario/employment/my-rights-at-work/basic-working-conditions/what-are-my-rights-as9-a-worker-in-ontario/

Translegal.com, (2018) Contract Law. Retrieved From: https://www.translegal.com/lesson/7017

Upcounsel.com. (2018) Condition Subsequent: Everything You Need to Know. Retrieved From: https://www.upcounsel.com/condition-subsequent.