商务契约关系 Outcome 1

Outcome 1 Case 1
1.Satisfactory Quality: In English law, there was previously an onus on the purchaser to ensure
that goods were of a reasonable quality and suitable for any specific purpose required the caveat emptor rule. In Scottish law, there was a principle that a sale of goods was a contract of good faith bona fide and the seller was bound to sell goods which were worthy of the price.
There are factors that are listed in section 14(2b) of SOGA 1979 as potentially relevant in appropriate cases, Fitness for the purpose for which goods of the kind in question are commonly supplied: Appearance and finish; Freedom from minor defects; Safety and;
Durability; Thomson v J Sears& CO (1926)
2.No, this contract between maggie and seller.
The seller has to return both the purchase price and compensate for any damage which the defective goods may have caused.，The provisions of SOGA 1979 only apply to the buyer, not to any other party, for example a person who received the goods as a gift, has no claim against the seller under the Act.
3.Section 20 of the Unfair Contract Terms Act 1977 states that any attempt to exclude or
restrict the seller’s liability for breach of Section 12 is void.
The contract it must be “incorporated”or form part of the contract .consumer contracts for the supply of goods and services are covered by act, as well as contracts of employment and apprenticeship. beach of any duty to take reasonable care exercise reasonable skill arising from the express implied terms of a contract. Any attempt to exclude liability for death or personal injury arising from breach of any of the above duties is void,
4. Section 16 UCTA 1977 covers attempts to exclude or restrict liability in relation to breach of duty in contracts or non-contractual notices. Breach of duty broadly covers the following.
Any attempt exclude liability for other loss or damage arising from breach of any of the above duties is allowed only to the extent that it is ‘fair and reasonable’
Unfair terms in consumer contracts regulations 1999.the regulations apply more widely than UCTA 1977 and can apply to the following situations: terms regarding termination of the contract and adequate notice; terms regarding delivery dates; terms allowing the supplier to increase charges without negotiation.
Section 20 UCTA 1977, as seen in topic 1, covers attempts to exclude or restrict liability in relation to implied terms in SOGA 1979. As previously discussed any such clauses are void in a consumer contract.
5. Rejection of the goods and Damages. Where the seller is in breach of any terms in a contract, the buyer shall be entitled to claim damages, and if the breach is material to treat the contract as repudiated and reject the goods.
By section 15b (2) SOGA 1979 where the contract is a consumer contract, a breach of the terms implied terms’ covered in Topic 1 will be regarded as a material breach. This will allow the consumer to reject the goods and claim damages. Additional Rights of Buyers in Consumer Contracts. It has part 5a to SOGA1979 making provision for additional remedies for buyers in consumer contracts where the goods for not conform to the contract at the time of delivery.
The remedies available under section 48 SOGA 1979 are:
Repairing or replacement of goods; Reduction in price; Rescission of the contract.
Case 2
1. Consumer Credit& The Consumer Credit Act 1974 (CCA 1974)
The CCA 1974 controls ‘ regulated agreements’ which are defined in Section 189 of the ACT as a consumer credit agreement ,or consumer hire agreement, other than an exempt agreement. A consumer credit agreement is the creditor supplies the debtor with credit not exceeding 25,000. This 25,000 limit only applies to amount of credit advanced.
2. There are two main categories of credit transaction or regulated agreement. Debtor-creditor- supplier’s agreement. Under Section 75 of the CCA 1974 both the creditor and the supplier are jointly and severally liable in respect of any breach of contract against the supplier known as ‘connected lender liability’. The consumer would therefore choose to claim against either the creditor or the supplier.
3. Protected Goods under a Hire Purchase or a Conditional Sale Agreement. In a hire –purchase or conditional sale agreement, ownership of the goods remains with the creditor until the debtor makes the last payment. Under common law provisions creditors could repossess the goods where the debtor is in default of obligations. Ownership of goods does not pass until the last payment has been made. A credit sale agreement is one where the purchase price is payable in five of more installments. But it is not a conditional sale agreement. Ownership of the goods would pass immediately to the buyer.
4. Right to cancel the agreement. The debtor has the right to cancel within the ‘cooling off” period: there has been an oral selling of the agreement to the debtor; and the agreement has been signed by the debtor off trade premises. Cancellation of a regulated agreement also cancels a linked transaction, for example, where there is debtor-creditor-supplier agreement.
5. The CCA 1974 introduced a licensing system to over all actives relating to credit. Applications for licences are made to the Director General and currently last for five years. It is a criminal offence to provide credit without a licence. Under Section 21 and 147 of the CCA 1974, licences are required for consumer credit, consumer hire and ‘ancillary credit businesses’
Case 3 1. The topic deals with the statutory provisions to protect consumers provided for in The Trade Descriptions Act 1968 (TDA 1968).
The TDA 1968 has a role in protecting consumers of goods and services through the criminal law. The local trading standards department are given various powers to carry out their duties under the Act and may make test purchases, enter premises at all reasonable hours, if they have reasonable cause to suspect that an offence has been committed, require production of books and documents and seize goods, enter premises after obtaining a Warrant from a Sheriff of Justice of the Peace. Strict liability applies to these offences, meaning that a person acting in his course of a trade or business can commit an offence without intending to do so.
2. Defenses available for a section 1 or section 14 offence. Onus is on the accused to establish the defense known as due diligence. The accused must establish two things under section 24;
(1)that the commission of the offence was due to a mistake or reliance on information supplied
to him/her, or the act of someone else, or an accident or some other cause beyond his /her control; And
(2)that he/she took all reasonable precautions and exercised all due diligence to avoid the
commission of such an offence by himself/herself or any person under his/her control.
If the accused is attempting to prove that he/she relied on the actions of someone else, or information supplied by someone else then he/she must give written notice to the prosecution identifying the other person at least seven days before the date of the hearing.Ford v Guild (1990).。