Contract and Tort: Formation, Breach and Civil Liability
The common-law foundation
Contract and tort in The Gambia are governed by the received common law and equity, modified by local statute where it exists. The examiner tests doctrine applied to short fact patterns: was a contract formed, was it broken, what loss is recoverable, and who is liable in tort?
Contract points
- Offer and acceptance must be communicated; a counter-offer destroys the original offer, while a request for information does not. The postal rule applies to acceptance by post where that is contemplated.
- Consideration must be sufficient but need not be adequate; past consideration is no consideration; promissory estoppel can suspend, not create, a right.
- Intention to create legal relations is presumed in commercial dealings and rebutted in social ones.
- Misrepresentation (fraudulent, negligent or innocent) and duress, undue influence and mistake may vitiate consent; remedies differ between rescission and damages.
- Discharge occurs by performance, agreement, breach or frustration. Damages follow the Hadley v Baxendale remoteness test, and penalties are unenforceable as distinct from valid liquidated damages.
Tort points
- Negligence requires a duty of care, breach, factual causation and non-remoteness of damage, with defences of contributory negligence and volenti non fit iniuria.
- Vicarious liability attaches to an employer for an employee's acts in the course of employment, distinguishing employees from independent contractors.
- Defamation requires a defamatory statement, reference to the claimant and publication; defences include truth, honest comment and privilege.
Worked example
A delivery company's driver takes a detour to buy lunch and injures a pedestrian. The pedestrian sues both driver and company.
Reasoning: the driver is negligent, and the company is vicariously liable because the driver is an employee acting within the broad course of employment; a detour does not necessarily take him outside it unless it is a wholly independent adventure. Damages are reduced for the pedestrian's contributory negligence only if he failed to take reasonable care for his own safety. Loss must be reasonably foreseeable to be recoverable.
Traps
Using 'remoteness' and 'causation' as synonyms; stating that consideration must be adequate; applying foreseeability to duty and to remoteness without distinguishing them; and overlooking statutory insurance or road-traffic provisions.