This assignment concerns a contract between
This assignment concerns a contract between Lil and Tuffstuff under which Lil purchased a brace of places from Tuffstuff. When Lil returned to the store to kick that the places had fallen apart she was met with three defense mechanisms from the store:
- That the places were non intended for usage on rugged terrain.
- That there wan an exclusion of liability clause printed on the contrary of the reception.
- That this type of shoe was no longer stocked by the store.
The assignment asks for Lil’s place to be assessed from the following positions:
- Her contractual rights.
- The alleged exclusion of liability clause.
- The redresss available.
Looking foremost at Lil’s contractual rights, the general place under common jurisprudence is ever that the parties are free to contract as they wish. While this rule goes back good over a century [ 1 ] it has more late been affirmed by Lord Diplock who observed that a‘basic rule of the common jurisprudence of contract… is that parties to a contract are free to find for themselves what primary duties they will accept.’[ 2 ]
This basic rule has been basically altered nevertheless, by regulations now contained in the Sale of Goods Act 1979. Before looking at the footings of this Act, it is necessary to province that the footings of the 1979 Act use to the contract between Lil and Tuffstuff by virtuousness of subdivision 2 ( 1 ) . Under subdivision 2 ( 1 ) a contract of sale of goods is defined as:
‘a contract by which the marketer transportations or agrees to reassign the belongings in goods to the purchaser for a money consideration, called the price.’[ 3 ]
The store, Tuffstuff, transferred the belongings in a brace of places to Lil in exchange for the monetary value paid.
The 1979 Act is of import as it will connote a figure of footings into the contract of sale between Tuffstuff and Lil. As these footings are implied by jurisprudence, it is unneeded to turn out that they were really agreed by the parties. The footings implied into the contract are that, in all contracts of sale, the marketer has a right to sell the goods, [ 4 ] that he will be under a responsibility to present the goods, [ 5 ] that the goods will be supplied at the right clip, [ 6 ] and in the right measure. [ 7 ] While these are of import deductions, they are non straight relevant to Lil’s state of affairs.
Probably the most of import regulations contained in the 1979 Act, nevertheless, are those covering with the quality of goods sold. This is where Lil’s state of affairs is straight catered for and the relevant footings are subdivisions 13-15 of the 1979 Act.
Under these subdivisions, where goods are sold by description or by sample, there is an implied term that the goods will conform to such description or sample, [ 8 ] and this is augmented by subdivision 15 ( 2 ) which states that the goods will non be capable to a defect which a sensible scrutiny of the sample would non uncover.
Section 14 of the Act provinces:
14 ( 2 )Where the marketer sells goods in the class of a concern, there is an implied term that the goods supplied under the contract are of satisfactory quality.
14 ( 2A )For the intents of this Act, goods are of satisfactory quality if they meet the criterion that a sensible individual would see as satisfactory, taking history of any description of the goods, the monetary value ( if relevant ) and all the other relevant fortunes.
14 ( 2B )For the intents of this Act, the quality of goods includes their province and status and the undermentioned ( among other things ) are in appropriate instances facets of quality of goods-
- fittingness for all the intents for which goods of the sort in inquiry are normally supplied,
- visual aspect and coating,
- freedom from minor defects,
- safety and lastingness.
Section 14 goes on to supply that footings implied supra will non widen to ‘facets of the goods brought specifically to the attending of the purchaser before the contract was made’ [ 9 ] or to defects that the purchaser should hold noticed on review. [ 10 ]
Section 14 has the possible to greatly protect Lil’s place in this state of affairs. If she can demo that there was an implied status of quality in the contract, and that the goods she bought were non of that quality, so the marketer will be in breach of the contract and will hold to counterbalance Lil.
In order for subdivision 14 to use, the goods must be sold in the class of a concern. If the goods were sold by a private marketer through an ad in the local newspaper for illustration, so the term would non be implied. However, we know that Lil bought the places from Tuffstuff which is a store. Therefore, so long as Tuffstuff’s ordinary trade included the merchandising of such places as those Lil bought, the subdivision will use. This appears to be the more likely state of affairs and this assignment will continue on this premise.
We know under subdivision 14 ( 2C ) that if any defects were specifically mentioned to Lil, so she will non profit under the protection envisioned by subdivision 14. Therefore, in order for the implied term of quality to be of usage to her, it is of import that the marketer did non indicate out defects to Lil before the contract was concluded.
Sing the fittingness of the goods for the intent intended, it has been explained by the Courts that this term means that the goods must be fit for all of the intents for which the goods may moderately be used. This means that if the places Lil bought are sometimes used for hike, and it is sensible to utilize them for boosting, so they are bound by the term and should hold been fit for this intent. This will be the instance whether or non Lil really told Tuffstuff that she was sing utilizing the places for boosting. However, we are non told the exact nature of the places bought, and there are bounds to how lasting goods must be. So, if for illustration, the places were ballerina slippers, it would non be sensible to anticipate that Lil was traveling to utilize them boosting and hence, unless she told Tuffstuff what she was traveling to make with them, they would non necessitate to be fit for that intent. This follows the logical thinking of the instance ofAswan Engineering V Lupdine[ 11 ] which dealt with the older diction of ‘merchantable quality’ . In this instance, plastic containers were bought for hive awaying chemical. The chemicals were exported in the containers to Kuwait where they were stacked six containers high and left in utmost heat ( 60 – 70 grades Celsius ) for a figure of yearss. In this instance the Court of Appeal found that this was an extraordinary usage of the containers and one which the marketer would merely hold to contemplate if he was told about it before manus. Therefore, the marketer was non apt when the containers gave manner and the chemical was lost.
The inquiry of whether the places were intended for the intent of boosting is non one that the marketer can merely declare. It will depend on what is a moderately foreseeable usage of the places, taking history of all the possible utilizations that are normally made of such goods. Therefore, presuming that Lil did non purchase overly delicate places, so it can be likely assumed that they should hold been fit for the intents of a walking vacation and the fact that they did non last will do the marketer apt for breach of contract.
The lastingness of goods is besides a factor to be taken into history and inMash and Murrell v Joseph I Emmanuel[ 12 ] it was held that murphies that were in good status when loaded onto a ship in Cyprus but were rotten upon reaching in Liverpool were non of marketable quality because they lacked lastingness.
The monetary value can besides be held to be relevant although it will non relieve a marketer from his responsibilities under the contract.
The following inquiry will be the alleged exclusion of liability clause printed on the contrary of the reception. The first obvious point about this exclusion clause is that it is printed on a papers that Lil merely received after the contract of sale had already been concluded and hence will non be capable of being portion of the contract. This follows the basic rule that one time a contract is concluded, it can non be one-sidedly altered by one of the parties. The lone valid manner for a marketer to integrate an exclusion clause in a contract of sale is by either holding the purchaser mark it or a papers that contains it, or by conveying it specifically to the purchasers attending. Since neither of these stairss appears to hold been taken, the exclusion clause can non be incorporated into the contract. [ 13 ]
However, there is an even greater hurdle to the exclusion clause taking consequence against Lil. Under the Unfair Contract Footings Act 1977 and the EC Directive on Unfair Footings in Consumer Contracts [ 14 ] as implemented by Unfair Footings in Consumer Contracts Regulations [ 15 ] the power of Sellerss to contract out of the implied footings are badly restricted.
Section 3 of the 1977 Act provides that in all contracts where a concern utilizing standard footings is covering with a consumer, the concern can non, unless sensible,
‘when himself in breach of contract, exclude or curtail any liability of his in regard of the breach.’[ 16 ]
Since Tuffstuff did non negociate the term with Lil, it is a standard term and hence, can merely be an effectual exclusion clause if it satisfies a trial of ‘reasonableness’ .
However, under s6 ( 2 ) of the 1977 Act, in a contract of sale made with a consumer, liability for any breach of subdivisions 13, 14 or 15 of the 1979 Act‘ can non be excluded or restricted by mention to any contract term.’
This means that it is non possible for Tuffstuff to except their liability for the quality of the places against Lil, in any fortunes.
The concluding issue to be dealt with in this assignment is the redresss that are available to Lil. The redresss available to a purchaser in these fortunes are the same as those by and large available under the jurisprudence of contract. Therefore, Lil has a right to disown the contract and reject the goods. This would intend that money she has paid to the marketer would hold to be returned.
If Lil feels she has suffered a loss other than the monetary value paid for the places, such as if her pess were injured, so she could action for such losingss under ordinary contract jurisprudence under amendss for breach of contract.
Atiyah, Adams & A ; Macqueen, The Sale of Goods, 10Thursdayerectile dysfunction. Pearson Education 2001
Guest ed. , Chitty on Contracts, General Principles, 27Thursdayed. , Sweet & A ; Maxwell 1994
Rose, Blackstone’s Statutes on Commercial and Consumer Law 2004-2005, 13Thursdayerectile dysfunction. Oxford 2004
Sale of Goods Act 1979
Unfair Contract Footings Act 1977
Council Directive on Unfair Footings in Consumer Contracts 93/13/EEC
Unfair Footings in Consumer Contract Regulations SI 1994 No. 3159
Unfair Footings in Consumer Contract Regulations SI 1999 No. 2083
Printing and Numerical Registering Co. V Sampson( 1875 ) L.R. 19 Eq. 462 at 465perJessel M.R.
Photo Production Ltd. v Securicor Transport Ltd.[ 1980 ] AC 827 at 848.
Aswan Engineering Establishment Co v Lupdine Ltd.[ 1987 ] 1 WLR 1
Mash and Murrell v Joseph I Emmanuel[ 1961 ] 1 All ER 485
L’Estrange V Graucob[ 1934 ] 2 KB 394