【免费下载】商务契约关系Outcome1

CASE 1:Q1: I s Maggie entitled to bring a legal action against Thunderbolt & Lightning for selling her a defective tumble dryer and will it matter that she purchased the goods in a sale?1.Yes, Maggie is entitled to bring a legal action against Thunderbolt & Lightning for selling hera defective tumble dryer in terms of the Sale of Goods Act 1979 (as amended).2.Thunderbolt & Lightning will be in breach of Section 14 of the 1979 Act. The store hasbroken one of the implied terms of the Sale of Goods Act 1979 (Sections 12-15) which are always assumed to form part of every contract of sale.3.Section 14 also states that goods will be of satisfactory quality if they meet the standard that areasonable person would regard as satisfactory, taking account of any description of the goods, the price (if relevant) and all the other relevant circumstances. Section 14 lists five examples of quality that buyers can use to help them decide whether the goods that they have purchased fall below the expected standard of quality:∙fitness for all the purposes for which goods of the kind in question are commonly supplied∙appearance and finish∙freedom from minor defects∙safety∙durabilityThe tumble dryer is not fit for its purpose, it is unsafe and it is not durable. The protection which Section 14 gives to buyers is only applicable in situations where the seller is selling the goods in the course of business. Maggie, of course, has purchased the goods from a business seller.4.Will it make a difference that Maggie purchased the goods in a sale? No. The only exceptionswill be when detects were specifically drawn to the buyer’s attention by the seller.Furthermore, if the buyer examined the goods before purchasing them and noticed any obvious defects, she/he will not have the protection of Section l4.5.More generally, the buyer’s claim that goods were not of satisfactory quality will be defeatedif the goods have been subject to wear and tear, the buyer has misused the goods or the buyer now has simply taken a dislike to the goods.6.Section 48A(3) of the Sale of Goods Act 1979 now states that there will be a strongpresumption operating against the seller that if the goods develop defects within six months from the date of delivery to the buyer. Then they will probably have failed to meet the requirement of satisfactory quality.7.Candidates must be able to cite at least one of the following:∙Jackson v Rotax Motor and Cycle Co [1910]∙Grant v Australian Knitting Mills Ltd [1936]∙Mash and Murrell v Joseph I Emmanuel [196/], [1962]∙Bartlett v Sidney Marcus Ltd [1965]∙BS Brown & Son Ltd v Craiks Ltd[1970]∙Millars of Falkirk v Turpie [1976]Q2: What legal action, if any, can Charlie pursue as a result of the injuries that he hassuffered?1.Charlie will not be entitled to bring an action under Section 14 of the Sale of Goods Act l979,because he does not have a contractual relationship with Thunderbolt & Lightning.2.Charlie is in a much stronger legal position thanks to Part I of the Consumer Protection Actl987 which allows him to pursue a civil claim for damages against the manufacturer of the tumble dryer in respect of his injuries. Part l of the Consumer Protection Act establishes a regime of strict liability in relation to defective products which cause damage to other property and/or injuries to people who were injured as a result of using the product or who came into close contact with the product. Strict liability automatically presumes that the defect in the product must be the fault of the producer of the goods. The manufacturer must come up with a credible explanation to show why she/he is not to blame for the injuries or loss that the pursuer (Charlie) has suffered.3.The 1987 Act applies to dangerous products which are capable of causing damage to thepursuer’s property or capable of causing the pursuer to suffer some sort of personal injury.The fact that the product is not working properly will not give a pursuer the right to raise an action against the defender. Many products are defective without being dangerous in any way.Q3: Do you think that Thunderbolt & Lightning will be able to escape liability to Maggie by claiming that the manufacturer was responsible for the defects in the goods?1.No. Thunderbolt & Lightning’s attempt to escape liability to Maggie by claiming that themanufacturer was responsible for the defects in the goods will fall foul of the concept of strict liability in the Sale of Goods Act 1979.2.The buyer’s contract is with the seller and it is irrelevant to the buyer whether the defect hasbeen caused by a manufacturing fault or not. The seller’s liability is said to be strict in the sense that the buyer does not have to prove fault or blame on the seller’s part.3. A seller can in turn sue the manufacturer for supplying it with defective goods if the buyer hassuccessfully sued him/her for defects in the goods. The buyer may have suffered a personal injury or his/her property may have been damaged as a result of using the defective goods.The seller will have to compensate the buyer for any injuries suffered or any damage caused as a result of using the goods. So, compensation could be awarded for the destruction caused to Maggie’s kitchen and clothing in the appliance at the time of fire.4.Manufacturing guarantees may also give an indication as to the length of time that a buyer canexpect the goods to meet the appropriate standard of quality. This might be a strong indication of a major defect. Section 14 of the Sale of Goods Act l979 states that manufacturing guarantees are directly enforceable against the manufacturer and any person (Thunderbolt & Lightning) who uses a guarantee to sell or market the goods to a consumer.Q4: Do you think that Thunderbolt & Lightning will be able to rely on the above exclusion clause to escape any potential liability to Maggie?1.Thunderbolt & Lightning’s attempt to rely on the exclusion clause to escape any potentialliability to Maggie will fail miserably.2.Such an exclusion clause is null and void because the store is attempting to exclude itsliability for personal injuries which it simply cannot do.3.Any attempt by the store to exclude or limit its liability in relation to Section 14 of the Sale ofGoods Act 1979 will be automatically void in terms of Section 20 of the Unfair Contract Terms Act 1977.4.Furthermore, there is a general provision in Section 16 of the Unfair Contract Terms Act 1977which renders null and void any attempt by an individual to exclude his/her liability for death or personal injuries.5.Maggie is a consumer buying goods for her own private purposes and the strongest possibleprotection is extended to consumers in terms of 1977 Act.6.Additionally, the store’s exclusion clause could be challenged under the Unfair Terms inConsumer Contracts Regulations 1999. The Regulations apply a test of fairness before exclusion or limitation clause can be regarded as void and unenforceable. With regard to the issue of excluding or limiting liability for death or personal injury, the Regulations state that such terms may be unfair whereas the Act makes these automatically void.Q5: Presuming that Maggie’s legal action is successful, what remedies will she be entitled to claim against Thunderbolt & Lightning?1.If Maggie’s legal action is successful, she will be entitled to claim the remedies of rescissioni.e. cancellation of the contract of sale for material breach (supplying goods of unsatisfactoryquality) and damages as per Section 15B of the Sale of Goods Act 1979.2.There are various remedies:∙rescission∙reduction in the price of the good∙replacement of the goods∙repair the goodsCase 2Q1: What Act of Parliament covers consumer credit and how would you define a consumer credit agreement?1.The Consumer Credit Act 1974 (as amended) regulates the consumer credit industry.2.Section 8 of the l974 Act lays down a definition of a regulated consumer credit agreement.Such an agreement is a personal credit agreement by which the creditor provides the debtor with credit not exceeding £25,000. A corporate body (company, a limited partnership or a limited liability partnership) cannot be a party to a consumer credit agreement.Q2: By reference to Section 75 of the Consumer Credit Act l974, describe the legal relationship between Marvellous Motors PLC and Alba Bank.1.Marvellous Motors PLC has a debtor-creditor-supplier arrangement with the Alba Bank.Debtor-creditor-supplier agreements where the creditor and the supplier of goods may be the same person or where the supplier has links to a creditor who will provide credit to the supplier’s customers (the debtors). The supplier (Marvellous Motors PLC) in a debtor-creditor-supplier agreement is the agent of the finance house or the bank. This kind of arrangement benefits all three parties. The debtor is given access to a source of credit; the supplier can be confident of selling more goods because she/he is in a position to offer credit to potential customers and the finance house/bank gets someone else (the supplier) to drum upcustom on its behalf Debtor-creditor·-supplier agreements.2.Section 75 of the Act allows a debtor to sue either the creditor or the supplier in the abovearrangement for a breach of contract committed by the supplier (Marvellous Motors PLC).Section 75 makes the creditor and supplier jointly and severally liable to the debtor for any misrepresentations or breaches of contract committed by the supplier.Q3: What is the difference between a credit sale and a hire purchase agreement?1.In credit sales, the debtor will become the owner of the goods from the outset of theagreement. All the debtor has to do is make regular repayments of the debt owed to the creditor over the agreed credit period.2.In hire purchase sales, the debtor will not become the owner of goods until he has paid thecreditor all the instalments owed under the agreement. The debtor will be given an option to purchase the goods. Hire purchase can never involve the purchase of land.Q4: in what circumstances do debtors have the right to cancel a consumer credit agreement?1.Section 67 of the Consumer Credit Act 1974 does allow a credit agreement to be cancelled incertain situations. Credit agreements can only be cancelled if two conditions are met:∙if you, the debtor, entered into face to face discussions with the creditor or the creditor’s agents with the aim of entering a credit agreement; and∙the signing of the credit agreement by both parties did not take place on the creditor’s business premisesIf a debtor signed a credit agreement in his/her own home after discussions with the creditor’s agent, the debtor can take advantage of a cooling-off period. This period gives the debtor time to decide whether he wishes to cancel the agreement or not.Q5: What is the purpose of consumer credit licenses and will a business which applies for a license automatically be granted one?1.The Consumer Credit Act 1974 established a licensing system which covers all activitiesrelating to the provision of credit. Businesses or individuals wishing to provide credit facilities to members of the public must be in possession of a licence issued by the Office of Fair Trading. Failure to obtain a licence means a business or an individual providing credit could face both civil and criminal penalties. An unlicensed creditor may find they are unable to enforce the agreement against the debtor.2.Licences are not just issued to anyone.a.If you have previously broken the rules in the Consumer Credit Act 1974, you willprobably not be issued with a licence.b.Criminal convictions for violence and dishonesty are likely to result in the applicantbeing refused a licence.c.All licence holders must ensure that they conduct their businesses properly. Anyundesirable conduct on their part could mean that the Office of Fair Trading maydecide to suspend or, even more seriously, withdraw the licence.Case 3Q1: By re-labelling the bottles of Bulgarian chardonnay as champagne, what criminal offence is Wullie committing and which Act of Parliament will he be in breach of as a result of his activities?1.Wullie will have committed the criminal offence of making a materially false andmisleading trade description as regards the origin of goods.2.He will be in breach of:a.Section 1 of the Trade Descriptions Act 1968 for making a false and materiallymisleading trade description in relation to goodsb.Section 2 of the Act gives definitions of various false and materially misleadingtrade descriptions andc.Section 3 explains what is meant by the word "false" in relation to a tradedescription.Q2: What defences are available to someone in Wullie’s position?1. Section 24 of the Trade Descriptions Act 1968 provides the main defence to an accused in Wullie’s position:∙that the commission of the offence was due to a mistake, or due to reliance on information supplied to him, or to the act or default of another person, or to an accident, or due to some other cause beyond his control; and∙that he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence by himself for any person under his controlWullie is not to be successful in any attempt to defend his actions given the deliberate nature of his crime.2．Candidates should be able to cite at least one of the following examples:●Robertson v Dicicco [1972]●Fletcher v Budgen [ I 974 ]●Regina v Ford Motor Co [IQ74]●Ford v Guild []990]●Costello v Lowe [7990]。