商務(wù)契約關(guān)系Outcome1

1、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 defect

2、ive tumble dryer in terms of the Sale of Goods Act 1979 (as ame nded).2. Thunderbolt & Lightning will 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 (Sectio ns 12-15) which are always assumed to form part of every con tract

3、 of sale.3. Secti on 14 also states that goods will be of satisfactory quality if they meet the sta ndard that a reas on able pers on would regard as satisfactory, tak ing acco unt of any descripti on of the goods, the price (if releva nt) and all the other releva nt circumsta nces. Sectio n 14 list

4、s five examplesof quality that buyers can use to help them decide whether the goods that they have purchased fall below the expected sta ndard of quality:« fitness for all the purposes for which goods of the kind in question are commonly supplied« appeara nee and finish« freedom from

5、minor defects* safety* durabilityThe tumble dryer is not fit for its purpose, it is un safe and it is not durable. The protect ion which Section 14 gives to buyers is only applicable in situations where the seller is selling the goods in the course of bus in ess. Maggie, of course, has purchased the

6、 goods from a bus in ess seller.4. Will it make a differe nee that Maggie purchased the goods in a sale? No. The only excepti ons will be when detects were specifically drawn to the buyer ' attention by the seller. Furthermore, if the buyer examined the goods before purchasing them and noticed a

7、ny obvious defects, she/he will not have the protect ion of Sectio n l4.5. More gen erally, the buyer' s claim that goods were not of satisfactory quality will be defeatedif the goods have bee n subject to wear and tear, the buyer has misused the goods or the buyernow has simply take n a dislike

8、 to the goods.6. Section 48A(3) of the Sale of Goods Act 1979 now states that there will be a strong presumpti on operat ing aga inst the seller that if the goods develop defects with in six mon ths from the date of delivery to the buyer. Then they will probably have failed to meet the requireme nt

9、of satisfactory quality.7. Can didates must be able to cite at least one of the follow ing:* 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 Sid ney Marcus Ltd 1965* BS Brow n & Son Ltd v Craiks Ltd1

10、970* Millars of Falkirk v Turpie 1976Q2: 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 1979, because he does not have a con tractual relati on ship with Thun d

11、erbolt & Light ning.2. Charlie is in a much stro nger legal positi on tha nks to Part I of the Con sumer Protect ion Act l987 which allows him to pursue a civil claim for damages aga inst the manu facturer of the tumble dryer in respect of his injuries. Part l of the Consumer Protection Act esta

12、blishes a regime of strict liability in relation to defective products which cause damage to other property an d/or injuries to people who were injured as a result of using the product or who came into close con tact with the product. Strict liability automatically presumes that the defectin the pro

13、duct must be the fault of the producer of the goods. The manu facturer 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 the

14、 pursuer 'property or capable of causing the pursuer to suffer some sort of personal injury. The fact that the product is not work ing properly will not give a pursuer the right to raise an action aga inst the defe nder. Many products are defective without being dan gerous in any way.Q3： Do you

15、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 'ttempt to escape liability to Maggie by claiming that the manu facturer was resp on sible for the d

16、efects in the goods will fall foul of the con cept of strict liability in the Sale of Goods Act 1979.2. The buyer ' s con tract is with the seller and it is irreleva nt to the buyer whether the defect hasbeen caused by a manufacturing fau lt or not. The seller' s liability is said to be stri

17、ct in thesense that the buyer does not have to prove fault or blame on the seller' s part.3. A seller can in tur n sue the manu facturer for suppl ying it with defective goods if the buyer has successfully sued him/her for defects in the goods. The buyer may have suffered a pers onal injury or h

18、is/her property may have bee n damaged as a result of using the defective goods. The seller will have to compe nsate the buyer for any injuries suffered or any damage caused as a result of using the goods. So, compe nsati on could be awarded for the destruct ion caused to Maggie ' s kitchen and

19、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 can expect 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

20、states that manufacturing guara ntees are directly en forceable aga inst the manu facturer and any pers on (Th un derbolt & Light ning) who uses a guara ntee to sell or market the goods to a con sumer.Q4: Do you think that Thunderbolt & Lightning will be able to rely on the above exclusion c

21、lause to escape any potential liability to Maggie?1. Thunderbolt & Lightningattempt 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 its liability for personal in

22、juries 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 Sectio n 20 of the Un fair Con tract Terms Act 1977.4. Furthermore, there is a gen eral provisi on in Section 1

23、6 of the Un fair Con tract Terms Act 1977 which ren ders n ull and void any attempt by an in dividual to exclude his/her liability for death or pers onal injuries.5. Maggie is a con sumer buying goods for her own private purposes and the stro ngest possible protecti on is exte nded to con sumers in

24、terms of 1977 Act.6. Additi on ally, the store 'xclusi on clause could be challe nged un der the Un fair Terms in Con sumer Con tracts Regulatio ns 1999. The Regulati ons apply a test of fairness before exclusi on or limitatio n clause can be regarded as void and unen forceable. With regard to t

25、he issue of excluding or limiting liability for death or personal injury, the Regulations state that such terms may be un fair 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

26、& Lightning?1. If Maggie ' s legal action is successful, she will be entitled to claim the remedies of rescissioni. e. can cellati on of the con tract of sale for material breach (suppl ying goods of un satisfactory quality) and damages as per Section 15B of the Sale of Goods Act 1979.2. The

27、re are various remedies:« rescissi on* reduct ion in the price of the good* replaceme nt 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 Con sumer Credit Act 1974 (as ame nded) regulates the con su

28、mer credit in dustry.2. Secti on 8 of the l974 Act lays dow n a defi niti on of a regulated con sumer credit agreeme nt.Such an agreeme nt is a pers onal credit agreeme nt by which the creditor provides the debtor with credit not exceeding 坨5,000. A corporate body (company, a limited partnership or

29、a limited liability part nership) cannot be a party to a con sumer credit agreeme nt.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 th

30、e Alba Bank.Debtor-creditor-supplier agreeme nts 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 'customers (the debtors). The supplier (Marvellous Motors PLC) in a debtor-creditor-supplier

31、agreeme nt is the age nt of the finance house or the bank. This kind of arran geme nt ben efits all three parties. The debtor is give n access to a source of credit; the supplier can be con fide nt of selli ng more goods because she/he is in a positi on to offer credit to pote ntial customers and th

32、e finance house/ba nk gets some one else (the supplier) to drum upcustom on its behalf Debtor-creditor -supplier agreements.2. Secti on 75 of the Act allows a debtor to sue either the creditor or the supplier in the above arran geme nt for a breach of con tract committed by the supplier (Marvellous

33、Motors PLC). Secti on 75 makes the creditor and supplier join tly and severally liable to the debtor for any misreprese ntati ons or breaches of con tract 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 beco

34、me the owner of the goods from the outset of the agreement. 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 un til he has paid the creditor all the in stalme nt

35、s owed un der the agreeme nt. The debtor will be give n an opti on to purchase the goods. Hire purchase can n ever in volve the purchase of land.Q4: in what circumstances do debtors have the right to cancel a consumer credit agreement?1. Secti on 67 of the Con sumer Credit Act 1974 does allow a cred

36、it agreeme nt to be can celled in certa in situati ons. Credit agreeme nts can only be can celled if two con diti ons 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

37、the credit agreem ent by both parties did not take place on the creditor bus in ess premisesIf a debtor signed a credit agreement in his/her own home after discussions with the creditor ' s age nt, the debtor can take adva ntage of a cooli ng-off period. This period gives the debtor time to deci

38、de whether he wishes to cancel the agreeme nt 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 activities relati ng to the provisi on

39、 of credit. Busin esses or in dividuals wish ing to provide credit facilitiesto members of the public must be in possessi on of a lice nee issued by the Office of Fair Trad ing. Failure to obta in a lice nee means a bus in ess or an in dividual providi ng credit could face both civil and criminal pe

40、nalties. An unlicensed creditor may find they are unable to en force the agreeme nt aga inst the debtor.2. Lice nces are not just issued to anyone.a. If you have previously broke n the rules in the Con sumer Credit Act 1974, you will probably not be issued with a lice nee.b. Criminal convictions for

41、 violence and dishonesty are likely to result in the applicant being refused a lice nce.c. All lice nce holders must en sure that they con duct their bus in esses properly. Any un desirable con duct on their part could mea n that the Office of Fair Tradi ng may decide 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