Machine Learning in Malware Detection

Machine Learning in Malware Detection 1.0 Background Research Malware was first created in 1949 by John von Neumann. Ever since then, more and more malwares are created. Antivirus company are constantly looking for a method that is the most effective in detecting malware. One of the most famous method used by antivirus company in detecting malware is the signature based detection. But over the years, the growth of malware is increasing uncontrollably. Until recent year, the signature based detection have been proven ineffective against the growth of malware. In this research, I have chosen another method for malware detection which is implementing machine learning method on to malware detection. Using the dataset that I get from Microsoft Malware Classification Challenge (BIG 2015), I will find an algorithm that will be able to detect malware effectively with low false positive error. 1.1 Problem Statement With the growth of technology, the number of malware are also increasing day by day. Malware now are designed with mutation characteristic which causes an enormous growth in number of the variation of malware (Ahmadi, M. et al., 2016). Not only that, with the help of automated malware generated tools, novice malware author is now able to easily generate a new variation of malware (Lanzi, A. et al., 2010). With these growths in new malware, traditional signature based malware detection are proven to be ineffective against the vast variation of malware (Feng, Z. et al., 2015). On the other hand, machine learning methods for malware detection are proved effective against new malwares. At the same time, machine learning methods for malware detection have a high false positive rate for detecting malware (Feng, Z. et al., 2015). 1.2 Objective To investigate on how to implement machine learning to malware detection in order to detection unknown malware. To develop a malware detection software that implement machine learning to detect unknown malware. To validate that malware detection that implement machine learning will be able to achieve a high accuracy rate with low false positive rate. 1.3 Theoretical / Conceptual Framework 1.4 Significance With Machine Learning in Malware detection that have a high accuracy and low false positive rate, it will help end user to be free from fear malware damaging their computer. As for organization, they will have their system and file to be more secure. 2.0 Literature Review 2.1 Overview Traditional security product uses virus scanner to detect malicious code, these scanner uses signature which created by reverse engineering a malware. But with malware that became polymorphic or metamorphic the traditional signature based detection method used by anti-virus is no long effective against the current issue of malware (Willems, G., Holz, T. Freiling, F., 2007). In current anti-malware products, there are two main task to be carried out from the malware analysis process, which are malware detection and malware classification. In this paper, I am focusing on malware detection. The main objective of malware detection is to be able to detect malware in the system. There are two type of analysis for malware detection which are dynamic analysis and static analysis. For effective and efficient detection, the uses of feature extraction are recommended for malware detection (Ahmadi, M. et al., 2016). There are various type of detection method, the method that we are using will b e detecting through hex and assembly file of the malware. Feature will be extracted from both hex view and assembly view of malware files. After extracting feature to its category, all category is to be combine into one feature vector for the classifier to run on them (Ahmadi, M. et al., 2016). For feature selection, separating binary file into blocks to be compare the similarities of malware binaries. This will reduce the analysis overhead which cause the process to be faster (Kim, T.G., Kang, B. Im, E.G., 2013). To build a learning algorithm, feature that are extracted with the label will be undergo classification with using any classification method for example Random Forest, Neural Network, N-gram, KNN and many others, but Support Vector Machine (VCM) is recommended for the presence of noise in the extracted feature and the label (Stewin, P. Bystrov, I., 2016). As to generate result, the learning model is to test with dataset with label to generate a graph which indicate detec tion rate and false positive rate. To find the best result, repeat the process using many other classification and create learning model to test on the same dataset. The best result will the one graph that has the highest detection rate and lowest false positive rates (Lanzi, A. et al., 2010). 2.2 Dynamic and Static Analysis Dynamic Analysis runs the malware in a simulated environment which usually will be a sandbox, then within the sandbox the malware is executed and being observe its behavior. Two approaches for dynamic analysis that is comparing image of the system before and after the malware execution, and monitors the malware action during the execution with the help of a debugger. The first approach usually give a report which will be able to obtain similar report via binary observation while the other approach is more difficult to implement but it gives a more detailed report about the behavior of the malware (Willems, G., Holz, T. Freiling, F., 2007). Static Analysis will be studying the malware without executing it which causing this method to be more safe comparing to dynamic analysis. With this method, we will dissemble the malware executable into binary file and hex file. Then study the opcode within both file to compare with a pre-generated opcode profile in order to search for malicious code that exist within the malware executable (Santos, I. et al., 2013). All malware detection will be needed either Static Analysis or Dynamic Analysis. In this paper, we will be focusing on Static Analysis (Ahmadi, M. et al., 2016). This is because, Dynamic analysis has a drawback, it can only run analysis on 1 malware at a time, making the whole analysis process to take a long time, as we have many malware that needed to be analysis (Willems, G., Holz, T. Freiling, F., 2007). As for Static Analysis, it mainly uses to analyze hex code file and assembly code file, and compare to Dynamic Analysis, Static Analysis take much short time and it is more convenient to analyze malware file as it can schedule to scan all the file at once even in offline (Tabish, S.M., Shafiq, M.Z. Farooq, M., 2009). 2.3 Features Extraction For an effective and efficient classification, it will be wise to extract feature from both hex view file and assembly view file in order to retrieve a complementary date from both hex and assembly view file (Ahmadi, M. et al., 2016). Few types of feature that are extracted from the hex view file and assembly view file, which is N-gram, Entropy, Image Representative, String Length, Symbol, Operation Code, Register, Application Programming Interface, Section, Data Define, Miscellaneous (Ahmadi, M. et al., 2016). For N-gram feature, it usually used to classify a sequence of action in different areas. The sequence of malware execution could be capture by N-gram during feature extraction (Ahmadi, M. et al., 2016).   For Entropy feature, it extracts the probability of uncertainty in a series of byte in the malware executable file, these probability of uncertainty is depending on the amount of information on the executable file (Lyda, R.,Hamrock, J,. 2007). For Image Representative feature, the malware binary file is being read into 8-bit vector file, then organize into a 2D array file. The 2D array file can be visualize as a black and gray image whereas grey are the bit and byte of the file, this feature look fo r common in bit arrangement in the malware binary file (Nataraj, L. et al., 2011). For String Length feature, we open each malware executable file and view it in hex view file and extract out all ASCII string from the malware executable, but because it is difficult to only extract the actual string without extract other non-useful element, it is required to choose important string among the extracted (Ahmadi, M. et al., 2016). For Operation Code features, Operation code also known as Opcode are a type of instruction syllable in the machine language. In malware detection, different Opcode and their frequency is extracted and to compare with non-malicious software, different set of Opcodes are identifiable for either malware or non-malware (Bilar, D., n.d.). For Register feature, the number of register usage are able to assist in malware classification as register renaming are used to make malware analysis more difficult to detect it (Christodorescu, M., Song, D. Bryant, R.E., 2005). For Application Programming Interface feature, API calling are code that call the function of other software in our case it will be Windows API. There are large number of type of API calls in malicious and non-malicious software, is hard to differentiate them, because of this we will be focusing on top frequent used API calls in malware binaries in order to bring the result closer (Top maliciously used apis, 2017). For Data Define feature, because not all of malware contains API calls, and these malware that does not have any API calls they are mainly contain of operation code which usually are db, dw, dd, there are sets of features (DP) that are able to define malware (Ahmadi, M. et al., 2016). For Miscellaneous feature, we choose a few word that most malware have in common from the malware dissemble file (Ahmadi, M. et al., 2016). Among so many feature, the most appropriate feature for our research will be N-gram, and Opcode. This is because it is proven that there two feature have the highest accuracy with low logloss. This two feature appears frequently in malware file and it already have sets of well-known features for malware. But the drawback using N-gram and Opcode are they require a lot of resource to process and take a lot of time (Ahmadi, M. et al., 2016). We will also try other feature to compare with N-gram and Opcode to verified the result. 2.4 Classification In this section, we will not review about the algorithm or mathematical formula of a classifier but rather their nature to able to have advantage over certain condition in classifying malware feature. The type of classifier that we will review will be Nearest Neighbor, NaÃÆ' ¯ve Bayes, Decision tree, Support Vector Machine and XGBOOST [21] (Kotsiantis, S.B., 2007) (Ahmadi, M. et al., 2016). As we need a classifier to train our data with the malware feature, we will need to review the classifier to choose the most appropriate classifier that are able to have the best result. The Nearest Neighbor classifier are one of the simplest method for classifying and it is normally implement in case-based reasoning [21]. As for NaÃÆ' ¯ve Bayes, it usually generates simply and constraint model and not suitable for irregular data input, which make it not suitable for malware classification because that the data in malware classification are not regular (Kotsiantis, S.B., 2007). For Decision Tree, it classify feature by sorting them into tree node base on their feature values and each branch represent the node value. Decision Tree will determine either try or false based on node value, which make it difficult to dealt with unknown feature that are not stored in tree node (Kotsiantis, S.B., 2007). For Support Vector Machine, it has a complexity model which enable it to deal with lar ge amount of feature and still be able to obtain good result from it, which make it suitable for malware classification as malware contains large number of feature (Kotsiantis, S.B., 2007). For XGBOOST, it is a scalable tree boosting system which win many machine learning competition by achieving state of art result. The advantage for XGBOOST, it is suitable for most of any scenario and it run faster than most of other classification technique (Chen, T., n.d.). To choose a Classification for our malware analysis, we will be choosing XGBOOST, as it is suitable for malware classification, it also recommended by winner from Microsoft Malware Classification Challenge (Ahmadi, M. et al., 2016). But we will also use Support Vector Machine, as it too is suitable for malware classification and we will use it to compare the result with XGBOOST to get a more accurate result. References   Ahmadi, M. et al., 2016. Novel Feature Extraction, Selection and Fusion for Effective Malware Family Classification. ACM Conference on Data and Application Security and Privacy, pp.183-194. Available at: http://doi.acm.org/10.1145/2857705.2857713. Amin, M. Maitri, 2016. A Survey of Financial Losses Due to Malware. Proceedings of the Second International Conference on Information and Communication Technology for Competitive Strategies ICTCS 16, pp.1-4. Available at: http://dl.acm.org/citation.cfm?doid=2905055.2905362. Berlin, K., Slater, D. Saxe, J., 2015. Malicious Behavior Detection Using Windows Audit Logs. Proceedings of the 8th ACM Workshop on Artificial Intelligence and Security, pp.35-44. Available at: http://doi.acm.org/10.1145/2808769.2808773. Feng, Z. et al., 2015. HRSà ¢Ã¢â€š ¬Ã‚ ¯: A Hybrid Framework for Malware Detection. , (10), pp.19-26. Han, K., Lim, J.H. Im, E.G., 2013. Malware analysis method using visualization of binary files. Proceedings of the 2013 Research in Adaptive and Convergent Systems, pp.317-321. Kim, T.G., Kang, B. Im, E.G., 2013. Malware classification method via binary content comparison. Information (Japan), 16(8 A), pp.5773-5788. Kà ¼Ãƒ §Ãƒ ¼ksille, E.U., Yalà §Ãƒâ€žÃ‚ ±nkaya, M.A. Uà §ar, O., 2014. Physical Dangers in the Cyber Security and Precautions to be Taken. Proceedings of the 7th International Conference on Security of Information and Networks SIN 14, pp.310-317. Available at: http://dl.acm.org.proxy1.athensams.net/citation.cfm?id=2659651.2659731. Lanzi, A. et al., 2010. AccessMiner: Using System-Centric Models for Malware Protection. Proceedings of the 17th ACM Conference on Computer and Communications Security CCS10, pp.399-412. Available at: http://dl.acm.org/citation.cfm?id=1866353%5Cnhttp://portal.acm.org/citation.cfm?doid=1866307.1866353. Nicholas, C. Brandon, R., 2015. Document Engineering Issues in Document Analysis. Proceedings of the 2015 ACM Symposium on Document Engineering, pp.229-230. Available at: http://doi.acm.org/10.1145/2682571.2801033. Patanaik, C.K., Barbhuiya, F.A. Nandi, S., 2012. Obfuscated malware detection using API call dependency. Proceedings of the First International Conference on Security of Internet of Things SecurIT 12, pp.185-193. Available at: http://www.scopus.com/inward/record.url?eid=2-s2.0-84879830981partnerID=tZOtx3y1. Pluskal, O., 2015. Behavioural Malware Detection Using Efficient SVM Implementation. RACS Proceedings of the 2015 Conference on research in adaptive and convergent systems, pp.296-301. Santos, I. et al., 2013. Opcode sequences as representation of executables for data-mining-based unknown malware detection. Information Sciences, 231, pp.64-82. Stewin, P. Bystrov, I., 2016. Detection of Intrusions and Malware, and Vulnerability Assessment, Available at: http://dblp.uni-trier.de/db/conf/dimva/dimva2012.html#StewinB12. Willems, G., Holz, T. Freiling, F., 2007. Toward automated dynamic malware analysis using CWSandbox. IEEE Security and Privacy, 5(2), pp.32-39. Tabish, S.M., Shafiq, M.Z. Farooq, M., 2009. Malware detection using statistical analysis of byte-level file content. Proceedings of the ACM SIGKDD Workshop on CyberSecurity and Intelligence Informatics CSI-KDD 09, pp.23-31. Available at: http://portal.acm.org/citation.cfm?doid=1599272.1599278. Lyda, R.,Hamrock, J,. 2007.Using Entropy Analysis to Find Encrypted and Packed Malware. Nataraj, L. et al., 2011. Malware Imagesà ¢Ã¢â€š ¬Ã‚ ¯: Visualization and Automatic Classification. Bilar, D., Statistical Structuresà ¢Ã¢â€š ¬Ã‚ ¯: Fingerprinting Malware for Classification and Analysis Why Structural Fingerprintingà ¢Ã¢â€š ¬Ã‚ ¯? Christodorescu, M., Song, D. Bryant, R.E., 2005. 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The Bullwhip Effect in the Supply Chain

The Bullwhip Effect in the Supply Chain As the name suggests bullwhip effect is an oscillation in the supply pipeline. In supply chain this effect occurs when there is a constant fluctuation in the demand. This effect also known as whiplash effect arises when minute demand fluctuations downstream result in a bigger fluctuation upstream of the supply chain. It describes how inaccurate information, non operational transparency and a disengaged production plan and real time information result in revenue loss, bad customer service, high inventory levels and unrealized profits. Incongruent information across the supply chain leads to overreact to backlog and building of excessive inventory in order to prevent stock outs (Supply Chain Management: Concepts Techniques and Practices-Enhancing Value Through Collaboration, By Ling Li; pp 191) it creates unstable production schedules that cause lead to unnecessary cost in supply chain. Companies have invested in extra capacity to meet the high variable demand. The highly variable dema nd increases the requirements for safety stock in the supply chain. Additionally, companies may decide to produce to stock in periods of low demands to increase productivity. If this is not managed properly it leads to excessive obsolescence. Highly variable demand also increases lead times. These inflated lead times lead to increased stocks and bullwhip effect. Thus this effect can be quite exasperating for the companies; they invest in extra capacity, extra inventory, work over time one week and stand idle the next, whilst at the retail stores the shelves of popular products are empty, and the shelves with products that arent selling are full (Dr. Stephen Disney, Cardiff Business School, Cardiff University) The problem of this effect in supply chain management has been a concernment for many years. Due to its non industry specific nature, it has grabbed the attention of many professionals from diverse industries and business schools. Many firms have observed the bullwhip effect in which the fluctuations in orders increase as they move up the supply chain from retailers to wholesalers to manufacturers to suppliers.(pp 478-479 ; Supply Chain Management Strategy , Planning and Operation , 2nd Edition; Sunil Chopra Peter Meindl) Some of the prominent cases so far noticed have been of an Italian pasta manufacturer Barilla SpA (Hammond 1994) that provides vivid illustrations of bullwhip in its supply chain. Barilla for a very long time had been offering special price discounts to the customers for bulk purchases. Such marketing policies created a highly erratic and spiky demand patterns, leading to high supply chain costs that outstripped the full truckload benefits and mismanaged inventory. Another case is of Campbell Soups chicken noodle soup experience (Cachon and Fisher 1997). The company is into selling only those products that have a stable demand. The manufacturer yet faced extremely variable demand on the factory level, the reason for which was found out to be forward buying practices of the customers. (FIGURE) As pointed out by Lee, Padmanabhan and Whang(1997 a,b) the expression Bullwhip Effect was termed by executives of PG, the company that manufactures Pamper brand of diapers. These executives observed that while the consumer demand for Pampers Diapers was fairly constant over time, the orders for diapers placed by retailers to their wholesalers or distributors were quite variable i.e., exhibited significant fluctuations over time. In addition, even larger variations in order quantities were observed in the orders that PG received from its wholesalers. This increase in the variability of the orders seen by each stage in a supply chain was called the bullwhip effect. As per Simatupang and Sridharan this situation of misalignment in demand understanding can be termed as Asymmetric Information where different parties have different states of private information about product demand, and the chain operations. The problem of this as ymmetry arises because participating firms generally lack the knowledge required about each others plans and intentions to adequately harmonize their services and activities. Supply chain members often do not wish to share their private information completely and faithfully with all others due to the profitability of that actual or anticipated information. Thereby the whole supply chain suffers from suboptimal and opportunistic behavior. These decisions occur when the members donot have sufficient visibility to resolve various tradeoffs in decision making because lack of information causes decisions to be made in a narrow scope that cannot ensure the products flows properly to end customers. Moreover, with limited information sharing, members donot have consistent perceptions of market needs and visibility over performance at the other levels of the supply chain. As a consequence, decisions are made based on either the best estimation of the available data or an educated guess. Such decisions can be biased and prevent the individual member from attaining the optimal solution of the supply chain. For example, the manufacturer often uses incoming orders with larger variance and not sales data from the retailer as a signal about the future product demand. Asymmetric information also produces problems of vulnerability of opportunistic behavior. Specifically, adverse selection and moral hazard manifest themselves in the relationship among the supply chain members. The negative selection of adverse selection, for example, is that the member firms cannot optimize supply chain performance because they donot possess the required capability to meet the predetermined customer service level. ( Semchi levi, David, Philip Kaminsky and Edith Simichi Levi, Designing and Managing the Supply Chain, London: Mc Graw Hill, 1999, pp. 103-107)(Lee, Hau L., V Padmanabhan and Seugjin Whang, The Bullwhip Effect in Supply Chains, Sloan Management Review, Vol. 38, No. 3 (1997), pp 93-102 ) To explain this effect a very simple example of two tier supply chain, a retailer and a manufacturer, can be taken into account. The retailer observes customer demand and places orders to the manufacturer. For determination of the order quantity to place with the manufacturer, retailer will use the observed demand data of customer and a demand forecasting technique. In the 2nd stage, the manufacturer plays his role of forecasting by observing the retailers demand to place order to his suppliers. In many supply chains, the manufacturer doesnt have access to customers demand data thereby making him rely on the retailers data to forecast. As the bullwhip effect implies (the orders placed by the retailer are significantly more variable than the customer demand observed by the retailer), the manufacturers forecasting and inventory control problem will be much more difficult than the retailers forecasting and inventory control problem. In addition, the increased variability will force t he manufacturer to carry more safety stock or to maintain higher capacity than the retailer in order to meet the same service level as the retailer. Longer the supply chain of a company more the impact of bullwhip effect can be observed. This also leads to increase in amount of the inventory across the chain. The rules of ordering such as timing of order placement, the acceptance of or refusal of back orders, order quantities and lot sizes, and cancellation rights and penalties, can have an enormous impact on the total system inventory and the bullwhip effect. To understand these challenges better a simulation of beer distribution game was created by the professors of MIT, Sloan School of Management. This simulation helps to understand the challenges faced by putting the participant in a real life supply chain situation. In this exercise, students enact a four stage supply chain. The task is to produce and deliver units of beer: the factory produces and the other three stages delive r the beer units until it reaches the customer at the downstream end of the chain. The aim of the players is rather simple: each of the four groups has to fulfill incoming orders of beer by placing orders with the next upstream party. Communication and collaboration are not allowed between supply chain stages, so players invariably create the bullwhip in the pipeline or chain. Sterman (1950a) was the first one to actually test the beer game to experience the bullwhip effect to experiment the causes that result to it. He (Sterman) experienced (1) Inventory Rationing (2) order bathing and (3)Price Fluctuations. He also provides evidence on bullwhip effect that occurs due to customers tendency of underweighting the inventory in supply line. The customer does not keep in the account the unreceived inventory at the time of placing a new order. Due to this the orders in backlog are underweighed in the decision to order more. Peter et. al.(1940) identify 4 main causes behind building up of bull whip effect. These causes are:- Demand Forecasting Every company in a supply chain usually does a product forecasting for its production scheduling, capacity planning, inventory control and material requirement planning. This forecast is oftenly done on the basis of previous orders placed by the customers. A very common method of demand forecast is exponential smoothing in which future demands are continuously updated as the real demand data becomes available. The order placed reflects the amount needed to replenish the future demands aswell as safety stock. Due to long lead times the safety stock days surge resulting in greater order quantity fluctuations. Moving a level up, to the manufacturers stage if the method of forecasting is same i.e. exponential smoothing then the demand variability is even more, eventually creating a bullwhip. Order Batching In supply chain most of the organizations place orders with their upstream suppliers after the accumulating them. The frequency of these orders is weekly, biweekly or at times monthly depending on the product. There are several cost related and demand related reasons for this practice. This can be demystified by an example of a company that places an order once a month because of the nature of the product it deals in. The supplier faces a highly erratic stream of orders. There is a spike in demand at one time during the month, followed by no demands for the rest of the month. This variability is higher than the demands the company itself faces. This practice amplifies variability leading to bullwhip effect. Transportation economics also plays a major role in the frequency of order placements. If the truck load is not enough then the order is not released as the cost is same irrespective of the load. Therefore companies prefer to order only when accumulated requirements are enough for a truck load to fill. This period batching causes surges in demand at a particular time period, followed by the periods of time with no or little orders, and other time periods with huge demands. Price Fluctuation Price variation is a crucial factor that impacts the buying behavior of a person. The customer buys in quantities that donot reflect their immediate needs. They buy in bigger quantities and stock up when the prices are low and reduce the purchase when the prices are normal, thereby creating a forward buy pattern in the chain. As a result the customers buying pattern doesnt reflect the consumption pattern and variation between the 2 grows which leads to the bullwhip effect. Rationing and Shortage Gaming When the product demand exceeds its supply the manufacturer is forced to ration them to the customers. Knowing that manufacturer will ration the goods, customers exaggerate their real needs at the time of ordering. Later when the variation between demand and supply plummets down, orders suddenly start to fade and cancellations pour in. This overreaction of the customer is an outcome of anticipation due to lack of information and interaction between the relevant parties. As the customer doesnt get 100% delivery of the goods required, he exaggerates the demand in order to receive the desired amount of goods. The above mentioned literature is comprehensible enough that all the factors or elements resulting in bullwhip effect originate from a common ground i.e. information sharing. It is evident enough that the lack of information and interaction between different stages evolve bullwhip in the system thereby plaguing the whole Supply Chain. Therefore it calls for supply chain integration where different stages upstream and downstream need to combine their operational practices by sharing information and work together towards a common objective. In this collaborative manner firms are likely to have less risk factor and more benefits to reap. Multiple researches have been done in order to prove the impact of inter firm collaboration on the performance of supply chain and attenuate the bull whip effect. Supply Chain Collaboration Intensive competition in the market place has forced companies to respond more quickly to customer needs through faster product development and shorter delivery time. Increasing customer awareness and preferences have led to companies that are able to deliver products with excellent quality, and on time. However the demand of customers for product variety, especially in the case of short life-cycle products such as food, apparel, toys and computers, makes it difficult for manufacturers and retailers to predict which particular variety of the products the markets will accept. To be effective in matching demand with supply, manufacturers and retailers need to collaborate in the supply chain. Each form of collaboration varies in its focus and objectives. Regardless of the collaborative approach taken, however, Simatupang and Sridharan(2003) suggest that the requirements for effective collaboration are mutual objectives, integrated policies, appropriate performance measures, a decision d omain, information sharing and incentive alignment. These requirements demonstrate a need for significant planning and communication to occur between partners, and can require significant resource commitment. Additional studies (Derocher and Kilpatrick, 2000; Mentzer et al., 2000) have affirmed that strong relationships increase the likelihood that firms will exchange critical information as required to collaboratively plan and implement new supply chain strategies. In order for this sharing of critical information to occur, a high degree of trust must exist among the collaborating partners (Frankel et al., 2002). Trust refers to the extent to which supply chain partners perceive each other as credible and benevolent (Ganesan, 1994; Doney and Cannon, 1997). Credibility reflects the extent to which a firm believes their relationship partner has intentions and motives that will benefit the relationship (Ganesan, 1994). One important aspect of information sharing as it relates to colla boration is the delineation of the kind of knowledge, explicit or tactic that results from the exchange of information. Collaborative arrangements involve knowledge transfer that is both explicit (e.g. transactional) and tacit, which resides in social interactions (Lang, 2004). More specifically, explicit knowledge is defined by Lang (2004) and referred to here as knowledge that can be articulated and codified in order to be transmitted easily. Hoover et. al., (2001) identify the benefits of collaboration only when it is done on a larger scale. Therefore they conclude that collaboration cannot be just a solution between close partners, but needs to be implemented with a larger number of business partners. The end goal should be solutions that enable mass collaboration. Darren Peters (six sigma master black belt for Cummins Inc. and also an ex professor of Purdue Universitys College of Technology) in his article on supply chain integration mentioned that a true integration of supply chain calls for a high degree of synchronization and alignment. Peters defines synchronization as information sharing; alignment, the most complex factor, reflects the collective behavior and motives of each partner within an ecosystem. Collaborative Planning Forecasting and Replenishment (CPFR) is the most recent prolific management initiative that provides supply chain collaboration and visibility. It has lately emerged as a new paradigm for the organizations that further want to cut their operational cost and make their supply chain more agile and responsive. Supply chain collaboration involves close work relationship with upstream suppliers and downstream customers. It is a new strategy to make the supply chain more effective and efficient keeping the customer at top priority. The association of Operations Management defines CPFR as follows: Collaboration process whereby supply chain trading partners can jointly plan key supply chain activities from production and delivery of raw materials to production and delivery of final products to end costumers (The Association of Operations Management also known as the American Production and Inventory Control Society, APICS). The complexity of new products, shrinking tim e to market, and capital intensity have led firms to collaborate to improve access to complementary abilities (Scott 2000) to help meet competitive challenges (Kanter 1994) and to address increasing competition due to market globalization, product diversity and technological breakthroughs ( Simatupang, Wright and Sridharan 2002). A greater interconnectedness and trend of outsourcing have led to a greater need for supply chain professionals to work in alliance with firms possessing complementary skills and capabilities. Lambert et. al. (Lambert, Douglas M., Margaret A. Emmelhainz and John T. Gargner,Building Successful Partnerships, Journal of Business Logistics, Vol. 20, No. 1 (1999), pp. 165-181) suggest a particular degree of relationship among chain members as means to share risks and rewards that result in higher business performance than would be achieved by the forms individually. Bowersox (Bowersox, Donald J., The Strategic Benefits Of Logistics Alliance, Harvard Business Rev iew, Vol. 68, No. 4 (1990), pp. 36-43) reports that logistics alliances offer opportunities to dramatically improve customer service and at the same time lower distribution and storage operating costs. Narus and Anderson (Narus, James A. and James C. Anderson, Rethinking Distribution: Adaptive Channels, Harvard Business Review, Vol. 74, No. 4 (1996), pp. 112-120) define a collaborative supply chain as the cooperation among independent but related firms to share resources and capabilities to meet their customers most extraordinary needs. As per a simplistic definition, Collaboration is nothing but a process in which people, groups and organizations work together to achieve desired results. Therefore supply chain collaboration is a business practice wherein trading partners use IT and a standard set of business procedures to combine their intelligence in planning and fulfillment of customer demand (VICS, 2004). The CPFR model created by Voluntary Interindustry Commerce Standards Assoc iation (VICS) is a promising mechanism for the forecast accuracy by having customers and suppliers participation in the forecasting process. A buyer and a seller work together as collaborators to satisfy the needs of the end customer thereby creating a win win situation. VICS 2004 proposes a model that is applicable to almost all the industries. In case of any discrepancy the vendor and the buyer can come together and rectify it by deciding upon the replenishment quantity. This kind of association or professional acquaintance offers a great potential to drastically improve supply chain performance through collaborative demand planning, synchronized production scheduling, logistics planning and new product development. The VICS Association, CPFR provides templates for supply chain collaboration in 4 stages (VICS 2004): Planning Stage: At this phase the relationship between buyers and vendors is planned and updated. It leads to front end agreement and joint business plan. Variances, w hether plan to plan or plan to actual, are also addressed. Forecasting Stage: At this stage, demand (order)/supply (sales) forecast is created and exceptions or discrepancies are identified and resolved. Forecast accuracy visibly improves by having customer and supplier involvement in the planning process and thereby making the goals compatible for both the parties. Execution: At this stage, the order is generated, shipments are prepared and delivered, products are received and stocked on retail shelves, sales transactions are recorded and payments are made. Analysis: At this stage, monitor planning and execution activities for exceptional situations. If a discrepancy occurs, the two trading partners can get together and share insights and adjust plans to resolve such discrepancies. Collaboration and co-operation between producers and their customers is a key component of a modern successful supply chain. As per Tim Bennett (Former President of National Farmers Union, Texas, USA) it is imperative that the organizations develop these relationships not only to drive improvements in efficiency but to respond more effectively to customer demands. As per Aviv (2005); Schwarz (2004) this initiative not only reduces the inventory but also increases sales for both sides i.e. retailers and suppliers. This also includes sharing of data and coming up with new and innovative ideas to attain a common objective. Supply chain collaboration is oftenly defined as 2 or more chain members working together to create a competitive through sharing information, making joint decisions, and sharing benefits which result from greater profitability of satisfying end customer needs than acting alone.(Simatupang Sridharan, 2005; Whipple and Russell, 2007). Narus and Anderson (1996) define Supply Chain Collaboration as sharing knowledge and skills by independent but related firms to meet extraordinary demands of precious customers. The major reasons for companies to collaborate their supply chain with suppliers and/or customers as the case may be, is to reap a better competitive advantage and improve the overall operational efficiency with improved profit margins. As per Wernerfelt 1984 Resource based view shows how firms develop and utilize their resources. Moreover the ownership of scarce and firm specific resources is the reasoned behind its success. Collaboration in the past has very often been interchangeably used with cooperation. Every professional and expert defines it differently. There are several driving forces that for the exchange of reliable information in the supply chain industry. One of these driving forces is competition. Merchandise retailers such as Wal-Mart and K-Mart have expanded product offerings into food items in order to enhance the value of customer service offerings through one-stop shopping. A second driver is the innovative nature of products, or the length of the life cycle and the duration of retail trends in these industries. In the apparel industry, for example, the life cycle of some garments is 6 months or less. Yet, manufacturers typically require up-front commitments from retailers that may exceed 6 months making long term fashion forecasts risky. General merchandise retailers know this years newest toy has a short product life cycle. It is imperative to get the latest trend in the consumer products to market quickly; otherwise, either tremendous lost revenues or markdown prices will be experienced. Long manufacturing lead times necessitate supply chain planning visibility. A third driving force is the longer, more complex supply chain given moves to offshore production. International sourcing for apparel and general merchandise has lengthened the supply chain and cycle time, and necessitating supply chain planning visibility. A fourth driving force behind CPFR is the nature of the supply chain cost structure. Global markets and more competitors are likely to move the supply chain system towards universal participation by all retailers in CPFR in an effort to cut costs (Raghunathan, 1999). All of these driving forces support the need to respond quickly to volatile demand and other market signals. These forces stimulate the development of supply chain visibility tools such as CPFR (Fisher 1997). Identified benefits of collaboration include: revenue enhancements, cost reductions, operational flexibility to cope with demand uncertainties (Fisher, 1197; Lee, Padmanabhan, and Whang, 1997; Simatupang et al., 2005); increased sales, improved forecasts, more accurate and timely information, reduced inventory, improved customer service, (Barratt and Oliveira, 2001; Whipple et al., 2007); division of labor, exchanges of knowledge about products and processes (Kotabe, Martin, Domoto, 2003) and cost and/or problem avoidance (Whipple, 2007). Companies like Wal mart, Procter Gamble and Dell computers have evidently shown that an anticipatory business model is better able to increase sales revenues and deliver profit margins meeting the shareholder expectations. This model is successful only when there is a cooperation and collaboration amongst all the members, internal aswell as external of the entire supply chain. (Supply Chain Collaboration-How to implement CPFR ;Ronald K Ireland with Colleen Crum, pg2). As per Ronald K Ireland reducing the Bull Whip effect in supply chain is not a program or a monthly initiative. It is a continuous practice to maintain a balance and to keep it to minimal due the inevitable nature. About the collaboration Ronal shares one of his experiences at Wal mart where due to some wrong program installation in the systems, purchase orders used to get blocked that lead the point of sale data to zero. The actual break down of collaborative planning happened when no queries were raised regarding the drastic change in point of sale rate. It was only when a supplier requested a Wal mart analyst to verify the forecast. This incident moralizes that it takes a team approach to eliminate the bull whip in the supply chain. Trust plays a vital role in the whole collaborative setup. Without trust and reliability on partners, supply chain collaboration is of no use. It is very important to have trust and faith in the partners to create supply chain into a value chain. Andraski (1994) reports that CPFR engages the manufacturer and retailer into exchanging the marketplace information in order to come up with a customer specific plan that can substantially reduce inventory. There are various cases or examples of CPFR implementation that prove its success. Various types of partnerships (collaborations) have been tried. Wal-Mart and Warner Lambert embarked on the first CPFR pilot, involving Listerine products. In their pilot scheme, Wal Mart and Warner Lambert used special CPFR software to e xchange forecasts. Supportive data, such as past sales trends, promotion plans and even the weather, were frequently transferred in an iterative fashion to allow them to converge on a single forecast should their original forecasts differ. The pilot scheme was very successful resulting in a tremendous increase in sales, better fill rates and in a reduction of inventory investment (Cooke, 1998; Hill, 1999). Other examples of CPFR pilots include Sara Lees Hanes and Wal Mart, involving 50 SKUs of underwear supplied to almost 2500 Wal Mart stores (Hill, 1999; Parks, 1999, 2001; Songini, 2001). In 1996, Hieneken USA employed CPFR to cut its order cycle time and is currently providing Collaborative planning and replenishment software to its top 100 distributors (Aviv, 2001). Procter and Gamble has several active CPFR pilots underway (Schachtman, 2000). Levi Strauss and Co. incorporates certain aspects of the CPFR business process into its retail replenishment service (e.g. by creating jo int business plans and identifying exceptions) (Aviv, 2001). Additionally, in the ECR report entitled European CPFR Insights several CPFR pilots are described including: Unilever Sainsburys GNX, Condis-Henkel-Cartisa, Kraft-Sainsburys GNX, Carton Scholler, Vandemoortele-Delhaize (ECR Europe, 2002). (Andraski and Haedicke, 2003) cited a major gap of misunderstanding, misuse of greater bargaining power and undue expectations in a collaborative relationship. Such gaps can be avoided if mutual agreements on extensive and timely information sharing were put in place to more precisely predict potential problems of matching supply and demand. At the same time these arrangements call for an effective governance structure to address potential economic incentive problems between contracting parties, thereby leading to more cooperation across firm level boundaries. Information Sharing Information is an essential part of managing operations and supply chain management. The above given review is comprehensible enough for us to realize the magnitude of information in supply chain and the repercussions if not communicated properly. It is the most crucial element in the whole CPFR frame of supply chain. Sridharan and Simatupang (2009) define information sharing as a process that facilitates the chain members to capture and disseminate timely, relevant and accurate information such that the recipient is able to plan, execute and control the supply chain operations. Likewise it should flow along with material and money across the supply chain in order to smoothly operationalize the key functions of supply chain. In the era of globalization where organizations have gone and are going multinational, the need of information sharing becomes vital for the smooth running of business. Some supply chains have the ability to share point of sale data to the end consumer with other members of the supply chain. Sophisticated supermarkets like Wal Mart use barcode scanning at the checkouts. These scanned barcodes populates electronic files that help in determining the patterns of particular products. This data is then offered to suppliers for the purpose of capacity planning activities. Utilization of this data only for the purpose of capacity planning doesnt help to resolve the problem of bullwhip as the suppliers still donot get clarity on the fluctuating orders of retailers. The real benefit availed from this data comes from its usage in replenishment or ordering decisions. The suppliers need to be proficient enough to use this information for forecasting replenishment. Effective sharing of information provides a shared basis for concerted actions by different functions across interdependent firms (Whipple et al. 2002). Increasing the level of integration and information sharing has become a necessary tool to bring a competitive advantage to the modern suppl y chain. Multiple researches have been performed in this context in order to develop a strong foundation in favor of information sharing and its crucial role in the all new Integrated Supply Chain Models. According to A.T. Kearney report(Field 2005), the average manufacturer has enjoyed benefits equivalent to million in savings for every $1billion of sales by synchronizing t

How Multiple Incidents Develop the Plot Line in The Great Gatsby :: essays research papers fc

F. Scott Fitzgerald brilliantly wrote many novels as well as short stories. One of his best known works is The Great Gatsby. In the novel, the main character Jay Gatsby tries to obtain his lifetime dreams: wealth and Daisy Buchanan. Throughout the story, he works at achieving his goals while overcoming many obstacles. Fitzgerald’s plot line relies heavily on accidents, carelessness, and misconceptions, which ultimately reveal the basic themes in the story. During the book, Fitzgerald is able to create a superior storyline by tying all the events in the story, directly or indirectly, together. Ernest Lockridge notes in his criticisms about the book: Yet in a triumph of art, Fitzgerald makes even accidents seem unaccidental, he incorporates ‘real’ disorder within fictional order. He accomplishes this by repetition (in the ‘real’ world, repetition does not exist): the accident involving Tom and the chambermaid, the reference to both Nick and Jordan baker as ‘bad drivers,’ the wreck just outside Gatsby’s driveway after his party in which, as in Tom’s accident, a wheel is ripped off, the hit-and-run death of Myrtle Wilson, and finally the accidental conjunction of events which leads to Gatsby’s murder and Wilson’s suicide. Lockridge, 7 Fitzgerald is capable of picking an event and referring back to it while still staying on topic. One of these events is accidents. Almost every character is related to an accident that occurs to another character: You see, when we [Gatsby and Daisy] left New York she was very nervous and she thought it would steady her to drive—and this woman [Myrtle Wilson] rushed out at us just as we were passing a car coming the other way. It all happened in a minute,   Ã‚  Ã‚  Ã‚  Ã‚  but it seemed to me that she wanted to speak to us, thought we were somebody she knew. Well, first Daisy turned away from the woman toward the other car, and then she lost her nerve and turned back. The second my hand reached the wheel I felt shock—it must have killed her instantly. Gatsby; 151 As one of the main accidents in the story, Fitzgerald connects the death of Myrtle Wilson to Daisy. The connection is completely accidental, because Daisy does not know that Myrtle is her husband’s mistress. In this incident, Fitzgerald is able to create irony between the two characters to make one think that it was actually not an accident, when in reality it was.   Ã‚  Ã‚  Ã‚  Ã‚  During the course of the story, it is relevant that some of the characters in the book use careless actions.

Ashes of Izalco-bookr report :: essays research papers

ASHES OF IZALCO By Claribal Alegria and Darwin J. Flakoll   Ã‚  Ã‚  Ã‚  Ã‚   I found the beginning of this book quite confusing. I had a difficult time discerning who the main characters were and what was the plot. I also wasn’t quite sure when the Mother had died and it wasn’t until later that I realized the reason that Carmen was present was because she had traveled home for her mother’s funeral. However, once I got into the book and started to put the characters in context, I really began to enjoy it. This book has very sad overtones. It is concerned with the human struggle for happiness in life, or maybe just contentment. Just about every main character, present and past, seems to be involved in some inner turmoil. Carmen is struggling with her own identity and her unhappiness in her marriage to Paul. She feels she plays a role of dutiful wife as she was brought up to be, but that the marriage really has no strong foundation and she and her husband have nothing in common. Possibly a repetition of her parents’ marriage? She admits to being convinced by her husband to have an abortion. This must have been very traumatic to reconcile with her Catholic upbringing as she refers to it as â€Å"a crime†. She is searching throughout the narrative for answers to her questions. What has become of her? What should she do about her marriage? Her father? And one of the most pressing questions is her struggle to understand why her has mother left the diary to her? There are no clear answers for Carmen. As she searches for answers she is also experiencing the very early stages of the grieving process. She is angry. She doesn’t like at all that her mother has altered her view of her as a parent. Don’t we all think that our parents never make mistakes or have questions in their own lives? If Isabel had left the marriage when she was a child, Carmen would have been forced to deal with the issue of an imperfect world with imperfect people. As she travels through some very poignant reminiscences, she admits to her own self-absorption as a child. As an adult, she reflects on now seeing her parents more clearly as individuals. I, too, have personally had this experience in seeing parents differently from the adult perspective. Carmen appears to be wearing a mask in her own relationship that shows a repetition of her mother’s life.

Ethical Decisions

Chapter 6 Ethics Issue Brenton T. Percell BUS323 Commercial Law Salem University In your opinion, was it ethical for Mr. Trump to broadcast this type of information to the public? When making an ethical decision, the following questions should be asked is it a utilitarian decision approach, deontological approach or virtue ethical approach. The utilitarian decision meaning was the firing for the greater good for the mass of people? No. Was it a deontological decision based on, treat others how one would want to be treated, No. The last philosophical reasoning being virtue decision. Virtue decisions are defined to be genuine and honest and should be handled in that manner is a public relation leader. When decisions are made with virtue in mind, all decisions should be made ethically to ensure honesty is conserved. (Bennett-Alexander & Harrison, 2012, pg16-18) (Media, 2018) With the above steps in understanding an ethics decision defined in my opinion the manner that Mr. Trump chose to terminate his employment with Mrs. Carolyn Kepcher, publicly on his BLOG, stating,† She loved her fame, and she loved celebrity Apprentice, and it was affecting her work.† was unethical. If this was the case was it any progressive action to make Mrs. Kepcher aware of her performance or was she just terminated? These are grounds of termination depending on a contract agreement, state laws (at- will). The action that makes this judgment unethical is the hiring of his daughter proceeding after the termination of Mrs. Carolyn Kepcher. (Bennett-Alexander & Harrison, 2012, Pg154) In your opinion, where should we, as a society, draw our (1) legal and (2) ethical lines regarding the type of information shared in this context? [Please keep in mind, for a variety of reasons, an ethical behavior may require more restrictions and restraint on actors than one would want to codify in law.] The legal implication in this situation cannot be made soundly due to the unknown variables such as contract, state that contract was signed legally no laws were broken, Mr. Trump was on his account that solely reflects on himself and his brand. Which is within his right, freedom of speech. The reasoning for the termination may not be the best or ethically sound but it is a reason. In my opinion, it is more of an ethical/ moral issue rather than a legal issue. No-one rights were violated during the firing of Mrs, Kepcher. ReferencesBennett. (2012). The Legal, Ethical & Regulatory Enviorn of Business in a Diverse Society. [VitalSource]. Retrieved from https://online.vitalsource.com/#/books/1259582132/Media, W. (2018). Ethical Theories. Retrieved from https://pagecentertraining.psu.edu/public-relations-ethics/introduction-to-public-relations-ethics/lesson-1/ethical-theories/

Contracts and Negligence Assignment Essay

Q. 1.1 A Contract is an agreement that is obligatory when imposed or acknowledged by law. (Peel, 2010). An agreement is a contract when forged with the willing approval of those involved in the contract, for a legal consideration and with a legitimate object, and not hereby expressly declared to be void (Malaysian Contracts Act, 1950). Contracts can either be Bilateral or Unilateral. Bilateral Contract is an agreement where a promise is exchanged for a promise. For instance, contract for the sale of goods is a bilateral contract. The purchaser promised to purchase the goods, in return for the seller’s promise to supply the goods. Figure 1 Source: https://www.google.co.uk/search?q=drawing+of+bilateral+contract+by+wikispaces The above shows both sides promise to do something Unilateral Contract occurs where just one person makes a promise open and available to anyone who performs the required action. For example: â€Å"collecting the reward such as  £100 for a lost document or pet† is unilateral contract. Figure 2 Source: http://www.images.123.tw/unilateral-contract/ The above shows only one side promises Contract can also be oral or written. Furthermore in order for a contract to be valid the offer and acceptance criteria must be met. The lawfully acceptable method for a contract to be binding is illustrated in the diagram below. This is known as Formation of Contract. Figure 3 Source: (www.laws1008.wikispaces.com) A Contract comprises of six important elements before it becomes valid and these are; Offer, Acceptance, Consideration, Intention to create Legal relation, Certainty and Capacity. If a single one of elements mentioned above is missing, the agreed contract will become illegal. The main elements are explained below: Offer: This is the first element in a valid contract. According to Peel (2010) an offer is â€Å"an expression of willingness to contract on specified terms, made with the intention that it becomes binding once it is accepted by the person to whom it is addressed†. An offer must be communicated and should be explicit. The person putting up the offer is referred to as offeror whilst the individual who receives the bid (offer) is referred to as the offeree. However, an offer must be distinguished from invitation to treat. There are two cases to be considered here. One case is Gibson v Manchester City Council (1979) Mr Gibson was sent a letter that informed him the council ‘may be prepared to sell the property to him for  £2,180 freehold†. The City Treasurer stated in his letter that â€Å"This letter should not be regarded as firm offer of a mortgage†. Included in the letter was the instruction on how to complete and return the enclosed application form to make a f ormal request to purchase the property. Mr Gibson did as he was requested but  because of unanticipated change in political leadership of the council, the proposed action to sell houses to tenants was changed and Mr Gibson was notified accordingly that it would no longer be possible for him to buy the house. Initially the Court of Appeal affirmed there was a binding contract between the the council and Mr Gibson but the verdict got over ruled on appeal to the House of Lords. The outcome of the judgement states that the first note forwarded by the Council was not an offer to sell rather it is an invitation to treat and further stated Mr Gibson did not accept an offer instead made one when he sent his completed requisitioned form. However, in an identical case of Storer v Manchester City Council (1974), Mr Storer puts in a bid to purchase his council property and he was forwarded an ‘Agreement for Sale of a Council House’ form which he signed and posted it back to the Council. The council received his reply before the political reform affecting the sales of house to council tenants transpired. The Council contended that the ‘Sale of Agreement Form to sell the Council House’ was not an offer and in this instance no contract was contracted. However, the Judges failed to agree and ruled that the form was indeed an offer immediately Mr Storer signed the form and forwarded it back to the Council. It is pertinent to point out the differences between these two similar cases. In the case of Mr Gibson no ‘Agreement for Sale’ was prepared and Mr Gibson did not sign. Whereas for Mr Storer’s case there was an agreement; consequently, the bargaining has been done and an agreement attained. Acceptance: Is defined by Chartered Institute of Taxation as â€Å"any words or actions signifying the offeree’s consent to the terms proposed by the offeror†. Acceptance must be final and unqualified. Acceptance should be conveyed to th e offeree. The wordings contained in the terms of the acceptance must be exact wordings in the terms of offer. Carlill v Carbolic Smoke Ball Company (1891) case refers. The company placed an advert in a newspaper, and in addition put a sum of cash on deposit with a bank and say they would pay anyone who contacted influenza while using their products, a remedy for curing flu, coughs, colds, bronchitis. It stated that anyone who had the ailment after taking the medication shall be recompensed with  £100. A consumer, Ms Carlill, took the medication and caught the flu. The firm was sued by her for damages and her case was successful. Consideration: â€Å"means something of value is given by one party to the order: ‘it is the price of  the promise’ (Chartered Institute of Taxation 2013) In Dunlop Pneumatic Tyre Co. Ltd v Selfridges & Co. Ltd. (1915) Consideration is â€Å"an act of forbearance of one party or the promise thereof, is the party which the promise of the other is bought and promise thus given for value enforceable†. Selfridges broke the term of agreement and Dunlop sued and lost the case because Dunlop could not enforce the contract because they did not provide any consideration for the promise made by Selfridge. It is important to highlight that ‘past consideration is no consideration. This means that anything done before the promise in return is given is no consideration and it is not adequate to make the promise binding. Types of consideration include: Executed (present) this is when an act is completed. An example is a Unilateral contract Executory this is when promises have been made in exchange for performance of acts in the future. For instance, a Bilateral contract Past consideration. In addition there are certain requirements for consideration to be valid and these are: It must not be past. However, there are exceptions such as:  (a) Previous request where the promisor has previously asked the other to provide services. Lampleigh v Braithwait (1605) (b) Business Situations, that is, when a thing is done in business and both parties perceived that it will be paid for. Casey’s Patents (1892) refers. (c) The Bill of Exchange Act 1882 Section 27 (1) says â€Å"provided that previous debt is valid for a bill of exchange†. It has to be forbearance to sue that is, if an individual has valid claim against another person but promises to forebear the enforcement. Combe v Combe (1951) & Alliance Bank v Broom (1864) It should be passed at the request of offerer. Durga Prasad v Baldeo (1880) It must move from the promisee. Dutton v Poole (1677) & Tweddle v. Atkinson (1861) It must be sufficient. Thomas v Thomas (1842); Chappel v Nestle (1960). Cannot consist s olely on sentiment value White v Bluett (1853) It must be legal that is not doing things that are immoral Wyatt v Kreglinger and Fernou (1933) Performance of existing duty that is, person carrying out duties that under general rules, they are required to do will not provide consideration. Traditional authority for rule: Collins v Godefroy (1831).  Carrying out additional duties: Glasbrook Brothers v Glasmorgan County Council (1925) Existing Contractual Duty this is where an individual has promised to do a thing already obligated to them under a contract that will not amount to a genuine consideration. (Stik v Myrick (1809) 2 Camp 317; Hartley v Ponsonby (1857); William v Roffey – if a 3rd party is owed for existing contract Duties to pay debts. This is where debts are paid in instalment. This is not a valid consideration and it is known as Pinnel’s Case. Foakes v Beer (1884) Intention to create legal relations: Parties to the agreement must intend to go into a legally binding agreement or contract. This is an intention from the two involved parties to go into a lawful and binding association. If there is no intention the agreement will be void. Intention to create legal relations could be: Commercial or business relations. Kleinwort Benson Ltd v Mining Corporation Bhd (1989), or, Social friend’s relation. Simpkins v Pays (1955) and Family or domestic relations. Balfour v Balfour (1919). Capacity: All those involved in a contract should possess legitimate ability to go into it. An individual unsafe physically, demented or a minor under the age of 18 cannot go into a binding. However, certain groups of people who have limitations such as mental health issue, drunks and minors under the age of 18. Those are the mentally ill, Minors under the age of 18 as stipulated by the Family Reform Act 1969. e.g. Chapple v Copper (1844) where a service was considered necessary but in the case of Nash v Inman (1908). Where a waistcoat was supplied to a minor would have been considered necessary but in this case it was the other way round as, purchase of the waistcoat is not necessary because the father had already provided the minor with several waistcoats. If a minor procure a luxurious thing and did not acquire because of necessity, the minor is liable and be responsible for his action. Privy of Contract means that â€Å"a contract cannot under normal situation confer rights or impose responsibilities emerging from it on any person except those involved in it. It is also known as â€Å"Rights of the third party Act 1999†. Treitel (2004) It isin also the relationship between the parties to an agreement, though there are exceptions, Q. 1.2. Face to Face (Verbal or Oral): This is â€Å"an agreement based on spoken promises, however it may be difficult to prove and it legally binding and  both parties will understand what they have agreed to and bargained in good faith†. www.ehow.com Phillip v Brooks (1919) case refers. It is case that involved a thief who falsely pretended to be Sir George Bullogh and bought jewellery under Sir Bullogh’s name with a cheque. The thief convinced the jeweller to part with the ring because his wife’s birthday was next day. The jeweller was convinced the was indeed Sir Bullogh after checking the address directory which tallies with Sir Bullogh’s address details. As soon as the rogue left, he sold the ring under the false name of Mr Frith and vanished into thin air. The claimant instituted a unilateral mistake of identity legal action. The case was affirmed that the transaction was not void for mistake because the parties transacted a face-to-face contract and in law it was assumed they dealt with the person before them and not the person they claimed to be. Written Contract: This is a written document indicating an agreement between two individuals. The parties can be human beings, organisations and businesses. All parties will have to append their signature to the contract to be legitimate. It also acts to protect both parties from breach of contract. www.wisegeek.com On-line: This is also known as Distance Selling when goods are sold to consumers void of face-to-face contact and done through Internet, e.g. Amazon.co.uk, eBay, booking vacation and on line banking. This type of transaction is governed by the Distance Selling Act 2000. Four contractual elements are contained in on-line contracts: offer, acceptance, consideration and intention. Contracts by Deed: â€Å"is a written document signed by the promisor and it must be clear be clear in the wording of the document that is intended to take effect as a deed. The must be witnessed by a third party. (Chartered Institute of Taxation 2013). The property title will not be given to the potential buyer until the final payment is made. It is also referred to as Sales Contract. Q. 1.3. Terms are the contents of contract. It is used in the civil law, to denote the space of time given to the debtor to discharge his obligation. Terms could be expressive resulting from positive stipulations of an agreement. It could be of right or of grace it is not within the agreement. Terms are of grace when it is afterwards granted by the judge at the requisition of the debtor. Contracts terms may be expressive or implied and could be classified as either: conditions, or warranties or innominate terms. www.tutor2u.net An express term is one that  has been particularly stated and agreed by both individuals at the time the contract is executed. It could be written or oral. www.tutor2u.net Implied terms are words or stipulations that a court presumes were planned to be incorporated in a contract meaning the terms are not expressively mentioned in the contract. www.elawresources.co.uk It could be: Terms implied through custom, Hutton v Warren (1836) EWHC J61; In fact. The Moorcock (1889) 14 PD 64 At Law Shell UK v Lostock Garage Limited (1976) 1 WLR 1187 There are two main types of implied term: (a)Terms implied by statue for example Sales of Goods Act 1979. There are about four key provision but I will use Section as an example that says â€Å"goods should be of ‘satisfactory quality’ meaning they should be up to standard a rational individual would consider â€Å"satisfactory† and if the purchaser says the good is being purchased for a distinct reason, there is an implied terms the products are suitable for the intended purpose. www.tutor2u/net (b) Terms implied by law courts an example is if the courts held that landlords of blocks of flat should keep the communal areas including lifts, stairs etc. in a reasonable state of repairs – so that the term was implied into the rent contract. an example case is Liverpool City Council v Irwin (1977) AC 236 HL Innominate term this when the parties involved fail to classify the commitments in the contract, the court will hold that they are unattested and apply the ex-post ‘consequence of breach test ’. The judgement given will depend on the magnitude of the breach. Case of: Hong Kong Fir Shipping v Kawasaki Kaisen Kaisha (1962) 2 QB 26 refers. Condition is a paramount term of the contract that goes deeply into the contract. For example if a proviso is contravened the guiltless party is entitled to renounce the contract and claim compensations. In the matter of Poussard v Spiers (1876) 1 QBD 410. Madame Poussard entered into contract to perform as an opera singer for three months. She was ill five days before the opening night and unable to perform for four days, held that she breached condition and that Spiers were entitled to end the contract. Warranties are minor terms of a contract which are not central to the existence of the contract. If a warranty is breached the innocent party may claim damages but cannot end the contract. Bettini v Gye (1876) QBD 183.  Trader puff is an expression of exaggeration made by a sales person or found in advertisement that concerned the goods offered for sale. It represents opinions instead of facts and is usually not considered a legally binding promise. Example of trader puff: â€Å"this is in good shape† and â€Å"your wife will love this car† Representation Term â€Å"is used in reference to any expressed or implied statement made by one of the parties to a contract in the course of negotiation to another regarding a particular fact or circumstances that influence the consummation of the deal and if not honoured the innocent party may bring an action for misrepresentation. (There are three types of misrepresentation as follows: Innocent, fraudulent and negligent misrepresentations (e-law resources) Learning Outcome – 2: Mini-case A The case above is an expressive term Bi-lateral case one involving Fiona and her uncle which involves offer and acceptance. Uncle Arnold was the offerer and Fiona the offree. The offer here was  £15,000. The main element of this case was that of acceptance. The agreement failed due to non-acceptance and time as consideration because the uncle said â€Å"fairly quickly† with a third party involved â€Å"I have already had a good offer from my colleague† so the following is to be considered when giving the verdict: Term: Offer  £15,000 and Acceptance by Fiona, Bi-lateral, both written and expressive Consideration – Time fairly quickly Third Party involved with better offer (Privity) Even though no clear straight form of acceptance occurred it is still a legal binding agreement but in this case Fiona cannot claim compensation for breach of agreement because it failed due to her delay and negligence in not responding in time. Therefore, if Fiona decides to go to court her case is not substantial enough to award her for damages. However, under vicarious liability Fiona can make a claim in court if she wishes. An example is Harvey v Facey (1893) AC 552 Privy Council. This was a case between Harvey and Facey in which correspondences were exchanged regarding sales of bumper Hall Pen asking for the sale of the property. (This was a distance offer as it was done through telegram). When Harvey asked â€Å"Will you sell us Bumper  Hall Pen?†. Facey responded â€Å"Lowest price for the Bumper Hall Pen  £900† to which Harvey responded â€Å"We agree to purchase Bumper Hall Pen for  £900 asked by you. Please forward your title deed so that we may get early possession†. Unknown to Harvey Facey was already negotiating with Kingston Council. The transaction failed and Harvey sued Facey. The issue in this case is â€Å"was that there was no clear offer† from Facey to sell the property to Harvey so the Privy Council ruled that â€Å"An offer cannot be implied by writing. It can only be concrete and sound. The appellant Harvey cannot imply that Facey made an offer when he did not† (www.casebriefsummary.com) Mini case B This is a distance, face-to face executed consideration and unilateral case involving offer of intention made by Mrs Smith open to everyone so no need for acceptance in this instance. The offer here is the reward of  £10 if her lost cat is found which did not involve transport cost. Mrs Smith refusal to David  £25 which include cost of transportation is valid and justified as payment for transportation was not included in the advert so therefore David has no case and could not claim for compensation if he goes to court. See Leonard v PepsiCo. PepsiCo placed a superfluous television advert stating â€Å"Pepsi points† if Pepsi was drank highlighting a young person arriving at school in Harriet jet and mentioned that the Harrier jet was for 7,000,000 Pepsi points. Leonard attempted to collect the Harrier jet by forwarding 15 Pepsi points accompanied with a cheque for $700,000.00 in order to obtain the Harrier jet. PepsiCo refused the delivery of the Harrier jet. Leonard lost the case because advertisement was not an offer. Mini-case C Mrs Harris, the owner of three rented houses in Extown, asks her next-door neighbour, Ted, to collect rent from the tenants for her while she is abroad on business. Ted collects the rents and when Mrs Harris returns, she says to him, â€Å"I’ll give you  £50 for your work†. Later Mrs Harris refuses to pay Ted. Here is a bi-lateral verbal, expressive offer and acceptance case between Mrs Harris and Ted. The main contract element issue here is consideration because the act has already been performed by Ted before the agreement was met. Even with no binding agreement, the ‘rule of consideration applies in this case’ because consideration can never be past or post, therefore in this case, Ted can sue Mrs Harris for consideration and breach of Contract  for his claims. For example see the case of Labriola v Pollard Group, Inc. (2004) Mini-case D The above is an offer and acceptance bi-lateral expressive written contract case between Lynx Cars Ltd and Roadstar Ltd though the agreement is not legal binding. The offeror is Lynx Cars Ltd whilst the offeree is Roadstar Ltd. The contract term as stated here are the quantity of cars (2000), time limit of five years with no financial loss incurred. Roadstar Ltd was informed in good time of just four weeks cancellation into the agreement. My verdict is that for Roadstar Ltd to make a claim the agreement must be legally binding which is missing in this case. Therefore Roadstar can withdraw from the agreement but cannot make any claims for compensation because of reasons given above. Mini-case E The above case was initially a unilateral case because it was advertised and opened to all but after the agreement was signed between Slick Cars and Paul it became Bi-lateral. The agreement was also an expressive one with contract term of conditions, warranty and trade puffs met. However if in the future something goes wrong with the car, Paul is not entitled too claims because all the sales conditions were met as of the time of purchase. Also if the car was discovered to have been stolen, Slick Cars Ltd and not Paul will be liable for prosecution. The warranty on the car includes the refund of road tax payment and an implied term of â€Å"buying a car from their hundreds of cars†. All the conditions regarding the sales of the car have been met bargain including the traders puff. My advice to Paul is to go ahead and buy the car as he has no liability regarding the car even if the car was to be a stolen one. However if the Trade puff does not represent what the advert says, or any of the condition is missing, Paul has the right to terminate the agreement his money will be refunded but will not be entitled to any compensation. However if the Trade puff defaults and Paul has evidence to support it, Paul can sue for compensation. Verdict Paul to buy the car but he should bear in mind that the warranty cannot end the contract but again, he could be compensated. Carlill v Carbolic Smoke Ball Company (1891) case refers. Mini-case F The above is a clear case of tort negligence and breach duty of care. Negligence failure on Duty of Care on both the part of the Council and the Leisure Centre. The Council’s notice was partially obscured so not visible to Jim and his wife, also the Council should have cut the overgrown shrubs failure to do this is maintenance negligence as this accident could have been prevented in addition Jim’s car damaged by the Council van is a health is an implied term and safety issue for which the Council is liable. The Leisure Centre on the other hand did not show any Duty of Care when the accident happened and therefore liable to pay for injuries and other related costs. In view of the above, it is my considered advice that Jim and his wife get compensated. See Blake v Galloway (2004) CA Q. 3.1 Tort is a civil wrong committed against an individual and originated from the Latin word tortum meaning â€Å"twisted wrong† and also conceded in court law as arguments for a legal action that can be resolved through compensations. See, e.g. Smith v. United States, 507 U.S. 197 (1993). This is a case involving the of a husband who got killed whilst working for a private firm under contract to a Federal Agency in Antarctica a region with no recognised government and without civil tort law and the wife sued The United States under the Federal Tort Claims Act (FTCA) for wrongful death in action. The case was dismissed by the District court for lack of jurisdiction because Mrs Smith’s case was stopped by FTCA’s foreign country exception policy that states that the statute’s waiver of sovereignty immunity does not apply, however, the Court of Appeals affirmed. (https://supreme.justia.com/cases/federal/us/507/179/case.html) The principal reason for tort law is ensuring compensation is given for the injuries sustained and to prevent others from committing the same harms. Inclusive of the types of injuries the injured party may recover are: loss of salaries fitness, pain hardship, and rational medical costs. These are inclusive of both present and future expected losses. Tort could be in form of trespass, assault, battery, negligence, products liability, and intentional infliction of emotional distress Torts are classified into three categories as follows: Intentional torts: These are intentional acts that are rationally and foreseeably done to injure another person. Intentional torts are unethical behaviours the defendant knew or should have known could transpire as a result of their actions or inactions, an example is to intentionally hit a person. Case of Broome v Perkins [1987] Crime LR 271 refers. The appellant was diabetic and drove in an unsafe manner whilst suffering from hypo-glycaemia, a low blood sugar level caused by an excess of insulin in the bloodstream. His claim of non-insane automatism failed because of evidence that he had exercised conscious control over his car by veering away from other vehicles so as to avoid a collision and braking. His was found guilty for driving without undue care and attention Negligent torts are the most common tort used to describe behaviour that constitute unreasonable risks to harm to a person or property or where the defendant’s actions were irrationally precarious. Vaughan v Menlove (1837) 3 Bing NC 467 in this case the defendant’s haystack caught fire because of poor ventilation. The defendant had been warned several times that the haystack could cause fire but he contended he had used his acumen and did not anticipate a risk of fire. The court held his logic was inadequate. He was adjudged by the standard of a reasonable man. (www.e-lawresources.co.uk) However, it pertinent to mention that not all wrongful act is a tort. In order for a tort to be constituted the following must exist: Every wrongful act is not a tort. To constitute a tort, There must be an unjustified action carried out an individual person The unjustified action must be serious in nature to have given warranted a judicial relief and Such judicial relief should be in the manner of an action for un-established injuries. Strict liability torts are when a person places another in danger in the absence of negligence because he possessed weapon, animal or product and it is not compulsory for the plaintiff to prove negligence meaning :mens rea†. http://education-portal.com See Sweet v Parsley 1970 HL This is a case involving a landlady who lets rooms to tenants however she kept a room for herself and visits once in a while to collect her letters and the rent. In her absence the house was raided by the police and cannabis found. She was  found guilty under s5 of the Dangerous Drugs Act 1965 (now replaced), of â€Å"being concerned in the management of premises used for the smoking of cannabis†. She appealed and claimed no understanding of the situation and could not be expected to rationally have acquired such understanding. Her conviction was revoked by The House of Lords, due to lack of proof that she purposely rented her house to be used for drug-taking, since the statute in question created a serious, or â€Å"truly criminal† offence, the judgement convicting her would have grave consequences for the landlady who is the defendant. Lord Reid stated that â€Å"a stigma still attaches to any person convicted of a truly criminal offence, and the more serious or more disgraceful the offence the greater the stigma†. Lord Reid in furtherance pointed out that it was inappropriate to levy her for total liability for this type of wrongdoing because the people who were in charge for renting properties are not likely to have anticipated everything that their tenants were doing. It is imperative to mention that there are both similarities and differences in torts. Similarities between tort and contract laws The above two laws share the same similarities in that they are both civil wrong. In tort the injured person will claim damages with a classical example of Donoghue v Stevenson (1932) whilst in contract the injured person will sue for compensation an example is the case of Dunlop Pneumatic Tyre Co. Limited v New Garage & Motor Co Limited (1915) A C 79. In both tort and contract violations monetary rewards or any payment that will atone for the losses Differences between tort and contract laws are shown in the table below: Tort Law Contract Law No relationship with the claimant, could be total stranger Claimants could be known to each other and parties to the contract Consent not necessary liability is warranted by one individual against another Consenting parties are involved Tort is punitive Contracts is positive, creative situations Tort is used to claim compensation by the injured party Contract involves two or more parties In tort damages are imposed by court or negotiated In Contract compensations are awarded as stipulated in the contractual agreement Tort law is not codified Contract law is codified Tort law safeguards right in rem available against everyone It protects rights in personam meaning against a particular person Damages are un-liquidated Damages are liquidated Source: http://www.acadmia.edu Q. 3.2 Negligence is the failure to take reasonable care or exercise the required amount of care to preventing harming others. An example is where an accident occurs that injured another person or cause damage to the car because the driver was driving erratically, the driver could be sued for negligence. http://www.thismatter.com Negligence in behaviour and duty usually have a disastrous effect on individuals and the society as whole, and in order to protect the society from these dangerous acts, legal steps are taken such as included in the elements of negligence. Consequently, elements of negligence as explained below: Duty of Care: is the statutory obligation made mandatory on every rational human being of sound mind to exercise a level of care towards an individual, as reasonably in all the situations, so as to avoid injury to other fellow human being from being or damage his or her property. An example is the celebrated case of Donoghue v Stevenson (1932) in which the claimant drank gi nger beer bought by her friend containing a dead snail causing her harm . This case brought about the â€Å"neighbour principle test† and according to Lord Atkin â€Å"Reasonable care must be taken to avoid acts or omission which one can reasonably foresee to injure one’s neighbour and this brought about the question ‘Who then in law is my neighbour?’ Neighbours are those individuals who will be closely and directly affected by one’s act† This case led to the Neighbour’s principle. Duty of care is therefore based on the relationship of different parties’ involved, negligent act or omission and the reasonable foreseeability of loss to that person http://.www.carewatch.blogspot.co.uk. The loss here may arise as a result of misfeasance or nonfeasance and may also cause pure  economic loss as I the case of Ultramares Corporation v Touche (1931) and psychiatrist damage or nervous shock. Case of Alcock v Chief Constable of South Yorkshire Police (1991) refers In order to establish a Care of duty, the liste d bullet points below also known as the tripartite contained in negligence must be met: The element must be reasonably be foreseeable There must be a relationship between the claimant and the defendant It must be fair, just and reasonable in such environment or situation for a duty of care to be sanctioned. Example is the matter of Caparo v Dickman (1990) HL a case involving auditors certifying false account for the company. (www.sixthformlaw.info) Breach of Duty: is where the defendant fails to meet the standard of care as stipulated by law and to confirm if the defendant owed the plaintiff any moral or obligatory duty. However the defendant is not enforced to have any contractual liability with the plaintiff. The responsibility can be moral or legitimate. Example is the case of Willsher v Essex Area Health Authority (1988) 1 AC 1074 in which a premature babe was given overdose of oxygen by a junior doctor that affected the baby’s retina and made him blind. The case was affirmed as the defendant was in breach of duty (www.e-lawresource.co.uk) Psychiatric Injury: This arises from â€Å"sudden assault on the nervous system (www.lawteacher.net) and until recently was uncertain in tort of negligence. For claimants to make claims regarding psychiatric injury he or she must be able to prove that the injury was genuine. However emotions of grief or sorrow are not enough to cause psychiatric injury Hinz v Berry (1970) 2 QB 40 The Hinz family went out for a day trip when a jaguar driven by Berry ran into the Hinz’s car killing the Mr Hinz and injuring the children. Mrs Hinz witnessed the incident and became depressed but her claim was rejected by the Court of Appeal. Factual Causation: This is the process where it must be proved reasonably in the law that the defendant’s ‘action’ led to damage. This in some cases, applying â€Å"but for† test in most cases resolve the disputed tort’s law cases but if it was proved, the fact must go hand in hand with the other elements, in order to make the case valid and if established, then the defendant is said to be liable to damages. The case of Barnet v Chelsea & Kensington Hospital Management Committee (1969) in which a Mr Barnett went to hospital and complained of stomach pains and vomiting, he was attended to by a nurse who  informed the doctor on duty. The doctor told the nurse to send him home and visit his GP in the morning. Mr Barnet passed away five hours later due to arsenic poisoning. Even if the doctor had examined Mr Barnett at the time he visited the hospital there was nothing he could have done to save him. The hospital was found not liable but this case introduced the â€Å"but for† test that is, the hospital was not negligent for the death of Mr Barnett. Bermingham. (2005). However, there is no need to prove negligence has a certain pattern or order. The elements are principally the determining rules in assessing whether a certain case is a case of negligence or not. Damages: This is the sum of money a plaintiff gets awarded in a lawsuit. There are various types of damages such as: Special damages: caused by the injury received inclusive of medical and hospital bills, ambulance charges, loss of wages, property repair or replacement costs or loss of money due on a contract. General damages: is a result of the other party’s actions, however, they are subjective both in nature and in determining the value of damages. These include pain and suffering, future problems and crippling effect of an injury, loss of ability to perform various acts, shortening of life span, mental anguish, and loss of companionship, loss of reputation in a libel suit, humiliation from scars, loss of anticipated business and other harm. Exemplary (Punitive) damages: This is the combination of punishment and the setting of public example. Exemplary damages may be awarded when the defendant acted in a malicious, violent, oppressive, fraudulent, wanton or grossly reckless way in causing the special and general damages to the plaintiff. On occasion punitive damages can be greater than the actual damages, for example, in a sexual harassment case or fraudulent schemes, though these damages are often requested for, they are rarely granted. Nominal damages: These are damages awarded when the actual harm is minor and an award is necessitated under the circumstances. The most famous case was when Winston Churchill was awarded a shilling (about 25 cents) against author Louis Adamic, who wrote that the British Prime Minister had been drunk at a dinner at the White House. The Times. (1947) Liquidated damages are damages pre-set by the parties in a contract to be awarded in case one party defaults as in breach of contract. The case of Dunlop Pneumatic Tyre Company v New Garage & Motor co (1915) AC 70 refers. Defences for  Negligence: This is where the defendant tries to introduce evidence that he did not cause the plaintiff’s damage or injury. (www.injury.findlaw.com) There are several defences obtainable to negligence claims such as: Violenti non fit injuria: This is a Latin phrase which means â€Å"for a willing person, there is no harm† and used in civil cases as a defence especially when the claimant voluntarily assented to start legal risk of harm at his own peril. In the case of: Smith v Baker (1891) AC 325. The plaintiff was employed by the defendants on a railway construction site and during the course of his work rocks were moved over his head by a crane. It was known to both the plaintiff and his employers that there a risk possibility of a stone falling on him and had earlier complained to his employer about the risk A stone fell and injured him and he sued his employers for negligence. His employer pleaded violenti non fit injuria and declined by the court because although the plaintiff knew about the risk and continued to work but no evidence shown that he voluntarily undertook to run the risk of injury, but his continuance to work did not indicate volens (his consent). Contributory negligence: This defence applies where the damage suffered by was caused partly both by the claimant and the defendant. Here the defendant must prove that the claimant failed to take reasonable care for his own safety and this caused the damage. This was enacted in the Law Reform Contributory Negligence Act 1945 according to Cracknell (2001) that (1) â€Å"Where any person suffers damage as the result is partly of his own fault and partly of the fault of any other person or persons, a claim in respect in respect of the damage shall not be defeated by by reasons of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such exte nt as the court thinks just and equitable having regard to the claimant’s share in the responsibility of the damage† so, if contributory negligence is confirmed the claimant would be awarded the cost proportional to his own fault of the damage. For example if the claimant was entitled to  £20,000.00 (Twenty thousand Pounds and he was responsible for 25 per cent of the damage, the claimant would be awarded  £15,000.00 (Fifteen thousand Pounds only). However, sometimes contributory negligence operates in complete defence as in Common law where the court found the claimant to be partially blame for their injuries they might receive nothing. In the case of Butterfield v Forrester (1809) 11 East 60  the plaintiff was injured when rode his horse erratically and ran into a post obstruction negligently left on the road by the defendant near his house with the intentions of carrying out repairs. A witness confirmed the plaintiff (Butterfield) was riding dangerously and could not avoid the post. The witness further testified that if the plaintiff was not riding dangerously he would have seen the post and the accident would have been avoided. The plaintiff was found guilty of contributory negligence and received nothing. Froom v Butcher (1976) QB 286. The driver of a car did not use the safety belt and was seriously injured in the accident with the defendant’s car as a result of the defendant’s negligence. The injuries sustained by the driver would not have been that serious if he wore the seat belt. His damages were reduced by 20 per cent by the Court of Appeal. This accident resulted in the introduction of not wearing safety belt as a criminal offence. Statutory or Common Law Justification: In certain situation a person may have a worthy defence to a tort action if he has valid evidence that his actions are covered by statutory rule and applicable law or legislation. A good example is the Police and Criminal Evidence Act 1968 distinctly setting out the power of Police to arrest, stop and search and entry. If these powers are used fairly and responsibly, the Act will yield a good defence to a tort action. Self-defence might possibly be a good justification in common law for tortious actions as in the case of R v Gladstone Williams (1984) 78 Cr. App. R. 276. Ex turpli causa non oritur actio (Illegality) : This is coined from Latin to mean â€Å"of an illegal act there can be no lawsuit† (www.legal-glossary.com) In the case of Vellino v Chief Constable of Greater Manchester (2002) 1 WLR 218 Court of Appeal Vellino was a regular offender with history of convictions. He was arrested and as usual tried to jump from the second floor window and got himself injured seriously. The Police were aware of his several attempts in the past and knew this to be dangerous but did nothing to stop him from escaping. In his attempt to escape from the second floor he injured himself and suffered fractured skull resulting in brain damage and quadriplegia also known as tetraplegia, a paralysis caused by the injury he sustained making completely dependent on people for support. Vellino sued the Police and claimed they owe him duty of care to prevent him from injuring himself which the Police denied and in their defence raised ex ‘turpi causa’ that it was a criminal  offence for an arrested person to attempt to escape. The claimant’s appeal was dismissed. Consent: Is a full defence raised in civil cases especially when a defendant is sued for civil litigation for committing an intentional tort. . It is also referred to as assumption of risk and it plays an important role in law. In common law consent is regarded as a necessary ingredient for creating a binding contractual bargain. In addition Consent is very closely linked with â€Å"volenti non fit injuria†. Below are the types of Consent: Express Consent: Is when the defendant agreed to willingly submit to plaintiff’s action. For example, Tom willingly takes part in a tackle football game and Henry tackled Tom, Tom suffers a knee injury. Henry is not liable because Tom obviously consented by agreeing to take part in the game. Implied Consent: is deduced from plaintiff’s conduct. (O’Brien v Cunard S. S. Co., 28 N. E. 266 (1891) Plaintiff was a passenger abroad on one of the Defendant’s ships. She was vaccinated whilst on the ship and suffered complication resulting in injury. She sued for assault and injury. Her case was dismissed on the grounds that she did not object when the defendant’s doctor indicated he wants to vaccinate her. Informed Consent: This is an individual’s agreement to allow something to occur made with full knowledge of the risks involved and other options to his chosen course of action. However, consent by the plaintiff does not authorise the defendant to do whatever he wishes to the plaintiff because of the contact that the defendant made with the plaintiff should not go beyond what the plaintiff consented to. For example, if I visited my Dentist to remove a rotten tooth and in the process he noticed a tumour and removed it without my consent. I could sue my GP for assault and injury because I did not consent to him to remove the tumour I only consented to him to remove my rotten tooth. (1) Consent will be void if it is obtained by trickery or by fraudulent means. Bartell v. State 82 N.W. 142 (Wis. 1900). Case refers. (2) Consent will be void if it is given under duress or threats of physical force. (3) Consent will also be void if it was given as a result of a mistake and the mistake was (a) Caused by the defendant, or (b) The defendant was aware of the mistake and he did not alert the plaintiff. Necessity: It is an affirmative defence that is raised when a tortious act is committed by an individual, for the prevention of greater harm or injury from occurring to the community, defendant or defendant’s property. Regina v Dudley & Stephen (1884) 14 QBD 273 DC. In this case, Dudley and Stephen the defendants and Brooms were ship wrecked with Parker, a fellow young seaman. They have been without food and water for almost three weeks. The defendants killed Parker to provide food for themselves to save them from starvation but Brooms dissented. They were found guilty of murder (www.casebriefs.com) Q. 3.3 Vicarious liability is â€Å"one which on one individual as a result of an action of another†. Rutherford and Bone. (1993). For example, is the liability of an employer for the acts and omission of his employees. It can be regarded as strict liability due to the defendant not being at fault. The most popular vicarious liability is when the employee otherwise the ‘tortfeasor’ commits a tort while in his employer’s employment, the employer is held liable and this due to the doctrine of ‘respondeat superior’ a Latin phrase meaning ‘let the master answer’ . For a court to establish if an employee acted whilst in employment the following must be confirmed if: Did the action happen whilst the employee is at work and during working hours? Did the employer employ the employer when the incident occurred? Was the injury due to the actions of the employee in the role the employed was hired? Example is the case of Mattis v Pollock (t/a Flaming o’s Nightclub) (2003) EWCA Civ 887 The bouncer was employed by Flamingo night club and in the course of performing his duty he got into a fight with one the customers and stabbed the customer. His employer were held liable for the injuries caused to the customer. Other case example is Other was in which a business can be liable in vicarious manner is when the employee acted in an unauthorised ways whilst performing the contractual duties, or when the employee acted against his employer’s instruction, or if the employee commits fraud and  acted against his work boundaries. In all the above, the employer is still liable vicariously. Examples of different cases are enumerated below: In the case of Century Insurance Co. Road Transport Board (1942) AC 509 HL and Limpus v. London General Omnibus Co (1862). The driver o a petrol tanker was in employment whilst transferring petrol into and underground storage tank. He struck a match to light a cigarette resulted in explosion that caused a lot of damage. It was held negligent the driver was negligent in carrying out his duties and his employer was found negligent. Limpus v. London General Omnibus Co. (1862) in this case th e driver was speeding to collect passengers and purposely obstructed the driver of a rival company and overturned the latter’s bus despite that the bus driver had been warned strictly not to cause obstruction. His employer LGOC was found liable Employee committing a fraud whilst in employment is illustrated in the case of Lloyd v Grace, Smith and Co. 1912 in this case the plaintiff wants to sell some cottages and went to the solicitors. The managing clerk of Lloyd conned the plaintiff to transfer the cottages to him and embezzled part of the mortgage money. Lloyd was sued by the employee and they were found liable for the fraud committed by the clerk even though it was only the clerk who benefited from the fraud. Control Test: The control test was the original test that has its origin in master and servant law and it also explore who has dominance over the way work is carried out the work. This test was applied in Mersey dock and Harbour Boards v Coggins and Griffiths Ltd (1946) Mersey Dock was in charge of training and for providing crane operator to organizations. Mersey contracted one of his operators to Stevedore Company and caused injuries through his negligent in operating of the cra ne. Mersey Dock was found liable as it was assumed the crane operator was in their employment as a contractor. Finally, the Employee’s criminal behaviour is one of the positive factors of how a business can be vicariously liable because if whilst in employment commits any criminal action his employer is liable vicariously the case of Heasemans v Clarity Cleaning (1987) Court of Appeal where the defendant employed an office cleaner who in the course of her duty used the plaintiff’s telephone for international calls. The appeal of the contactor was successful as it was held that was not vicariously liable for his employee’s act Health and Safety Act 1974: It is also referred to as HSWA or HASAWA is the main piece  of law or legislation that covers occupational health and safety at work and gives wide-ranging duties on employers to ensure in a reasonable practical manner the health, safety and welfare at work of all employees, likewise it also expect some degree of responsibilities from employees. Source: (http://www.hse.gov.uk/legislation/hswa.htm) The main purpose of this Act is to ensure: The security, of health and safety as well as the welfare of individuals at work To protect individuals against risk to health and or safety in relations to the activities of individuals at work To control and prevent the use of illegally acquired of hazardous dangerous substances. Employers’ responsibilities include: To provide and maintain safety equipment and safe systems at work. To ensure hazardous materials used are properly stored, handled, utilised and transported safely To provide supervision, instruction, information, training at work for employees To ensure the control of certain emission into air To provide a safe working environment To provide a written safety policy/risk assessment for employees Look after the health and safety of others such as the members of public. On the other hand, the employees’ responsibilities include: Taking care of their own health and safety and that of others, failure to do this makes the employees liable Must avoid interfering with things provided by the employer in the interest of health and safety Must cooperate with their employers Source: (http://www.slideshare.net/ManojRNair/work-based-learning-health-and-safety-act-1974) Finally, it is worth mentioning that there are other several relevant legislations amongst which are: Management of Health and Safety at Work Regulations 1999 Fatal Accident Act 1976 Limitation Act 1980 Law Reform (Contributory Negligence) Act 1945 Employers’ Liability (Compulsory Insurance) Act 1969 Employers’ Liability (Defective Equipment) 1969 Civil Procedures Rules (as amended by the Woolf reforms) Sources: (www.leeds.ac.uk) In conclusion the above report has critically and chronically been done and analysed to reflect on all the relevant issues affecting Aspects of Contracts and Negligence. â€Å"Vicarious Liability.† StudyMode.com. 02, 2013. 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