商务契约关系Outcome1

1、 CASE 1： QI: Is 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 her a defective tu

2、mble dryer in terms of the Sale of Goods Act 1979 (as amended) 2. Thunderbolt & Lightning wi11 be in breach of Section 14 of the 1979 Act. The store has broken 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. S

3、ection 14 also states that goods will be of satisfactory quality if they meet the standard that a reasonable person would regard as satisfactory, taking account of any description of the goods, the price (if relevant) and al 1 the other relevant circumstances Section 14 lists five examples of qualit

4、y that buyers can use fall be1ow the to help them decide whether the goods that they have purchased expected standard of quality： fitness for al 1 the purposes for which goods of the kind in question are commonly supplied appearance and finish freedom from minor defects safety durabi1ity The tumble

5、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 di

6、fference that Maggie purchased the goods in a sale No. The only exceptions will 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

7、Section 14. 5. More generally, the buyer s claim that goods were not of satisfactory quality will be defeated if 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

8、states that there will be a strong presumption operating against the seller that if the goods develop defects within six months from the date of delivery to the buyer Then they wil 1 probably have failed to meet the requirement of satisfactory quality. 7. Candidates must be able to cite at least one

9、 of the fol lowing： Jackson v Rotax Motor and Cycle Co 1910 Grant v Australian Knitting Mills Ltd 1936 Mash and Murrel 1 v Joseph I Emmanuel 196/, 1962 Bartlett v Sidney Marcus Ltd 1965 BS Brown & Son Ltd v Craiks Ltd1970 M订lnrs of Falkirk v Turpie 1976 Q2: What legal action, if any, can Charlie pur

10、sue as a result of the injuries that he has suffered 1. Charlie will not be entitled to bring an action under Section 14 of the Sale of Goods Act 1979, because he does not have a contractual relationship with Thunderbolt & Lightning. 2. Chari ie is in a much stronger legal position thanks to Part I

11、of the Consumer Protection Act 1987 which allows him to pursue a civil claim for damages against the nuinufncturer of the tumble dryer in respect of his injuries Part 1 of the Consumer Protection Act establishes a regime of strict 1iability in relation to defective products which cause damage to oth

12、er 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 numufncturer must come up with a credible

13、explanation to show why she/he is not to blame for the injuries or loss that the pursuer (Chariie) has suffered 3. The 1987 Act applies to dangerous products which are capable of causing damage to the pursuer? s property or capable of causing the pursuer to suffer some sort of personal injury The fa

14、ct 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 ThunderboIt & Lightning w订1 be able to escape liability to Maggie by claiming that the manuFactu

15、rer was responsible for the defects in the goods 1. No. Thunderbolt & Lightning s attempt to escape liability to Maggie by claiming that the manufacturer was responsible for the defects in the goods wi11 fall foul of the concept of strict liability in the Sale of Goods Act 1979 2. The buyer* s contr

16、act is with the seller and it is irrelevant to the buyer whether the defect has been caused by a facturing fault or not The sellerf s liabi 1 ity 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

17、 for supplying it with defective goods if the buyer has successfully 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 seiler wi11 have to compensate the buyer for any injuries su

18、ffered or any damage caused as a result of using the goods So. compensation could be awarded for the destruction caused to MaggieJ s kitchen and clothing in the appliance at the time of fire 4. kmufacturing guarantees may also give an indication as to the length of time that a buyer can expect the g

19、oods to meet the appropriate stanckird of quality This might be a strong indication of a major defect Section 14 of the Sale of Goods Act 1979 states that nuinufacturing guarantees are directly enforceable against the nuinufDcturer and any person (Thunderbolt & Lightning) who uses a guarantee to sei

20、 1 or market the goods to a consumer Q4： Do you think that Thunderbolt & Lightning w订1 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 potential 1iability to Maggie will fail

21、miserably 2. Such an exclusion clause is null and void because the store is attempting to exclude its liability for personal injuries which it simply cannot do. 3. Any attempt by the store to exclude or 1 imit its 1 iability in relation to Section 14 of the Sale of Goods Act 1979 will be automatical

22、ly 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 1977 which renders null and void any attempt by an individual to exclude his/her 1iabi1ity for death or personal injuries 5. Maggie is a co

23、nsumer buying goods for her own private purposes and the strongest possible protection is extended to consumers in terms of 1977 Act. 6. Additionally, the storeJ s exclusion clause could be challenged un der the Un fair Terms in Consumer Contracts Regulations 1999. The Regulations apply a test of fa

24、irness before exclusion or limitation clause can be regarded as void and unenforceable With regard to the issue of excluding or 1 imiting liability for death or persorml injury, the Regulations state that such terms may be unfair whereas the Act makes these automatically void Q5: Presuming that Magg

25、ie 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 rescission cancel lation of the contract of sale for material breach (supplying goods of unsatisfacto

26、ry quality) and damages as per Section 15B of the Sale of Goods Act 1979. 2. 3. There are various remedies： rescission reduction in the price of the good replacement of the goods repair the goods Case 2 QI: What Act of Parliament covers consumer credit and how would you define a consumer credit agre

27、ement 1. The Consumer Credit Act 1974 (as amended) regulates the consumer credit industry. 2. Section 8 of the 1974 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

28、 25,000. A corporate body (company, a 1imited partnership or a 1 imited liability partnership) cnnnot be a party to a consumer credit agreement / Q2: By reference to Section 75 of the ConsumeT Credit Act 1974, describe the legal relationship between Marvellous Motors PLC and Alba Bank 1. Marvellous

29、Motors PLC has a debtor-creditor-supp 1 ier 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 wi 11 provide credit to the supplier s customers (the debtors) The sup

30、plier (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 positio

31、n to offer credit to potential customers and the finance house/bank gets someone else (the supplier) to drum up custom 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 above arrangement for a breach of contr

32、act committed by the supplier (Marvellous Motors PLC) Section 75 makes the creditor and supplier jointly and severally 1 iable to the debtor for any misrepresentations or breaches of contract committed by the supplier Q3： ffhat is the difference between a credit sale and a hire purchase agreement 1.

33、 In credit sales, the debtor will become the owner of the goods from the outset of the agreement Al 1 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 p

34、aid the creditor 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 cred辻 agreement 1. Section 67 of the Consumer Credit Ac

35、t 1974 does allow a credit agreement to be cancelled in certain 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 sig

36、ning of the credit agreement by both parties did not take place on the creditor? s business premises If a debtor signed a credit agreement in his/her own home after discussions with the creditor1 s agent, the debtor can take advantage of a cooling-off period This period gives the debtor time to deci

37、de whether he wishes to cancel the agreement or not Q5： What is the purpose of consumer credit licenses and vdll a business which applies for a license automatically be granted one 1. The Consumer Credit Act 1974 established a licensing system which covers al 1 activities relating to the provision o

38、f credit Businesses or individuals wishing to provide credit facilities to members of the public must be in possession of a 1 icence 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 uni

39、icensed 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 wi11 probab1y not be issued with a licence b. Criminal convictions for violence and dishone

40、sty are likely to result in the applicant being refused a licence c. All licence holders must ensure that they conduct their businesses properly. Any undesirable conduct on their part could mean that the Office of Fair Trading may decide to suspend or, even more seriously, withdraw the licence Case 3 % QI： By re-labelling the botties 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