HND 商务契约关系 第一次考试.doc

Case 1Q1：Maggie 没受伤，她是否有权利起诉SELLER；商品是in a sale,是否影响MAGGIE的权利？（买方和卖方的关系）A1：1，Yes, she can do that.2，The basic law is the seller violation the Implied Terms of SOGA 1979. It is include four terms.a) Section 12 SOGA 1979 Implied Terms of Titleb) Section 13 SOGA 1979 Sale by Descriptionc) Section 14 SOGA 1979 Satisfactory Quality and Reasonable Fitness for Purpose.d) Section 15 SOGA 1979 Sale by SampleThis case was violation Section 14 SOGA 1979.Section 14 implied two terms: Satisfactory Quality and Reasonable Fitness for the Purpose. The major violation of this case is Satisfactory Quality. The standard of Section 14 of SOGA 1979 is “that a reasonable person would regard as satisfactory taking account of any description of the goods, the price (if relevant)and all other relevant circumstances”. There are factors that are listed in Section 14 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 In this case, the tumble dryer is lack of safety and durability. Maggie just bought it two months, so it still a new tumble dryer. It was caught fire. Clearly, it is lack of durability. The tumble is a latent defect in the wiring that lead to detonate. So we said it is lack of safety.3,Maggie bought the tumble dryer in a sale, but it does not diminish the buyers rights unless they are classed as “seconds” etc or a particular defect is brought to the attention of the buyer as being the reason for the reduction in price. Maggie did not know the bug of the tumble dryer before she buy it. So Maggie s rights should not be diminished.4,The cited case is Thomson v J Sears Co(1926), the pursuer purchased boots for himself and suffered periostosis of the foot as a result of the insole having crumpled up and become knotted and nodular. It should be obvious that the boots were going to be worn as footwear. In the case of Priest V Last(1903),a buyer was scalded after using a hot water bottle and was successful in suing the seller on the basis that the bottle was unfit for the purpose. Strict liability also applies and it is no defence that the seller has done all that is reasonable to avoid breach of the provision.(nao) In the case of Frost V Aylesbury Dairy CO ltd(1905),where the plaintiffs wife died from consuming milk containing germs of typhoid fever and the dairy could not defend the action on the basis that they could not reasonably have discovered the presence of the virus in the milk.(pao)Q2:Charlie受伤，MAGGIE该怎么办？（the injury of Charlie）A2:1, Charlie can not impaled the seller. Because that he is not the buyer. Charlie no contractual relationship with the seller. The provisions of SOGA 1979 only apply to the buyer, not to any other people or party. He has no claim against the seller under the Act. 2,There is a case that Donoghue V Sterenson 1932,Mrs Donoghue drunk some of mixture and her friend then lifted the bottle and was pouring out the remainder into a tumbler when a decomposed snail floated out of he bottle and into her drink. Mrs Donoghue suffered shock and illness as a result. She claimed damages against the manufacturer. The House of Lords ruled that the manufacturer would have to pay Mrs Donoghue damages as he owed a duty of care to anyone using his product. He had failed in that duty of care. 3,Accroding to the Consumer Protection Act 1987 that the seller has to return both the purchase price and compensate for any damage. The buyer does not have to prove negligence on the part of the seller. To the dangerous products causing damages or injury, manufacturer should assume the strict liability. Just presume fault of manufacturer. 4In this case, Charlie should according to the Consumer Protection Act 1987 to implead. The process should not prove the fault of manufacturer, just mention Charlie was injury.Q3:Seller说是厂商的责任，零售商是否可以就此免责。A3：1,No, they can not exclude liability. 2,According to the Strict Liability in SOGA 1979 that the buyer should prove it is a faulty good, but the buyer should not prove negligence. The seller could damage to the buyer and then demand compensation to the manufacturer. 3,Maggie can get all of the compensation, include personal injury and goods damage. But she can not demand compensation about injury of Charlie. Because that Charlie is not the buyer.Q4:在告示之后的损失，免责条款是否生效？（there is a notice to exclusion clause）A4:1,The seller will fail. They can not exclusion clause. 2,According to the Unfair Contract Terms Act 1977.定义（you will recall from your previous study of the law of contract that for an exclusion clause, weather valid or not, to be considered as part of thee contract it must be :“incorporated” or form part of the contract. Consumer contracts for the supply of goods and services are covered by the Act, as well as contracts of employment and apprenticeship.）. In Section 16 of Unfair Contract Terms Act 1977,we can known that any attempt to exclude liability for death or personal injury arising from breach of any of the above duties is void Section 20 UCTA 1977,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. The notice can not exclude these implied terms.The controls imposed by the Act are more stringent on consumer contracts than on business to business contracts. The strongest possible protection consumer.3,Unfair Terms in Consumer Contracts Regulations 1999. Under these Regulations, a consumer can set aside a contract for goods or services by showing that the contract is unfair. The Regulations apply to any term in a contract between a seller or supplier and a consumer where the term has not been individually negotiated. Unfair contract Term Act 1977 has wider application, because the Act applies to consumer contracts and non-consumer contracts; Again a reasonableness testis applied where there is an attempt to exclude contractual liability.4,Now the new one is “Unfair Contract Terms Bill 2005”, it combine Unfair Contract Terms Act 1977 and Unfair Terms in Consumer Regulation 1999.5,In this case, the seller want use the notice exclude liability for death or personal injury, but breach of any of the above duties is void. To a certainly, the seller must fail.Q5:Maggie将得到什么补偿（remedies）？A5:1,Maggie can claim damage payable is the estimated loss arising from the sellers breach of contract. such like her kitchen. And the breach is material to treat the contract as repudiated. Maggie can rescission the contract. 2,The remedies available under Section 48 SOGA 1979 are: Repairing or replacement of goods Reduction in price Rescission of the contract.Case2 Q1:Act of parliament: consumer credit agreement(与消费信贷有关的成文法有哪些？)A2：Consumer Credit The Consumer Credit Act 1974(CCA 1974). It contained consumer credit agreement and consumer hire agreement. A consumer credit agreement is defined in Section 8 of the CCA 1974 as a personal credit agreement where the credit supplies the debtor with credit not exceeding 25,000. This 25,000 limit only applies to the amount of credit advanced, it does not include any interest chargedA consumer hire agreement is defined in Section 15 of the CCA 1974 as an agreement made by an owner of goods to hire goods to an individual known as the hirer and which is not a hire-purchase agreement; is capable of lasting for more than three months; and does not require the hirer to make payments exceeding 25,000.Q2: What are the main body in the case? The legal relationship between company and bank (案例中的两个主题是什么？公司和银行)A2：1,The case involve Debtor-Credit-Supplier agreement. Where the credit is not the supplier of the goods. In these agreements where goods or services cost more than 100 or less than 30,000 the debtor can hold the creditor jointly and severally liable with supplier when he claims misrepresentation or breach of contract against the supplier. In this case, the Marvellous Motors PLC is supplier, the bank is the creditor, the consumer is debtor.2,The bank and Marvellous Motors PLC have connected lender liability. 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. The consumer would therefore choose to claim against either the creditor or the supplier.3,PLC is agent of bank.(PLC是银行的代理人)PLC is agent of bank.Q3:Credit sale and Hire PURCHASE 的区别？A3：Under a hire purchase agreement the hirer agrees to pay for the hire of the goods over a period of time with an option to purchase at the end of the hire period. 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 or more installments, but is not a conditional sale agreement. Ownership of the goods would pass immediately to the buyer. Hire purchase never involves the purchase of land.Q4:消费信贷合同撤消权利。（right to cancel the agreement.）A4:1,there are two conditions: there has been an oral selling of the agreement to the debtor; and the agreement has been signed by the debtor off trade premises. 2,cooling off period 是如何规定的？ The right to cancel must be made within 5 days of receiving the copy agreement. The debtor must deliver a notice of cancellation either in person or by post. After cancellation the debtor is to have any sums paid returned to him and any goods must be retuned (debtor is to take reasonable care of the goods for a 21days period and hand them over when asked for them) The debtor has the right to retain goods pending return of monies paid or goods given in part-exchange or their monetary value Cancellation of a regulated agreement also cancels a linked transaction. ? 3,Case中的消费者是否拥有这个权利。 No, they made the contract in the curse of a business.Q5 Consumer credit licenses有关许可证的规定？A5：1,Every company which supply consumer credit should have licenses.The CCA 1974 introduced a licensing system t cover all activities relating to credit. It is the responsibility of the Director General of fair Trading to licence those who provide 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.The office of fair Trading would issued licences to company. 2,取得许可证的条件，有哪些人不可以取得许可证？不可以取得许可证的：(who will not be issued liences if)who previously broken the rules in CCA.who has Anti- discrimination law.who have Criminal convictions for violence and dishonesty.who undesirable business practicesLicense holder: withdraw the license if he infracts the rules.Case3Q1: Relabeling the bottle(重新贴标签) 此行为违反了什么成文法？要求承担什么行事责任？A2：1,It transgress The Trade Descriptions Act 1986(TDA 1986) Section 1 TDA 1986 sets our the two main criminal offences in relation to goods, making it a criminal offence for any person, in the course of a trade or business, to apply a false or misleading description to goods, or supply or offer to supply any goods to which a false or misleading trade description is applied. Under Section 2 of the Act a trade description is an indication, direct or indirect of any of the following with respect to any good; The quantity, size or gauge of the goods; The composition of the goods; The method of manufacture of the goods The fitness for purpose, strength, performance, behavior or accuracy Any other physical characteristics of the goods Any testing by any person and the results of such testing Any approval by any person pr conformity with a type of approval The date or place of manufacture, production, processing r reconditioning of the goods Other history of the goods including ownership or use which are inaccurate.A false description means misleading to a material degree.2,In this case, it transgress the place of manufacture, production, process