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Statutory Implied Terms and statutory rights (SGA 1979 (s12 Condition…
Statutory Implied Terms and statutory rights
SGA 1979
s12 Condition
seller has right to sell the goods
sale = has right to sell
agreement to sell = has right at the time property is to pass
sale of Unascertained goods
must have right at the time when the property is to pass to buyer under rule 5, s18
contract for sale of specific goods
must have right to sell at the time the contract is made
Niblett Ltd v Confectioners' Materials
if vendor can be stopped by the process of law from selling, he has not the right to sell
breach = damages
strict liability - applies without reference to knowledge of the seller
Breach
reject goods
repudiate contract
recover damages
recover full purchase price on basis of total failure of consideration -
Rowland v Divall
- contract to obtain valid title to car - he had not obtained
s12(2)(a) Warranty
goods are free from any charge or encumbrance
not disclosed or known to the B before the contract is made
charge or encumbrance
proprietary or possessory right
free at time of contract and continue to remain so until property in the goods pass to the B
mere existence of it sufficent
no assertion
nominal damages
damages based on diminution in value based on the amount the B would have to spend to remove the charge or encumbrance
breach
only entitled to claim damages
not amount to right to repudiate and reject goods
lose possession
damages based on value of goods at the time of dispossession
either way he can claim reasonable costs incurred in avoiding the charge or encumbrance - legal costs and damages awarded against the buyer
no lose possession
value of goods when they were delivered minus value if the contract had been complied with
.
s12(2)(b) Warranty
buyer will enjoy quiet possession of goods
B will enjoy quiet possession = continuous so will apply post transfer of property
Rubicon Computers System v United Paints
seller's interference caused the breach
Microbeads AG v Vinhurst Road Markings
3p interrupted enjoyment via seeking injunction
applies irrespective of passing of title as long as possession given
interference by seller's breach of contract or tortious conduct
lawful conduct of 3p interference
unlawful conduct of 3p when seller involved in some way with the unlawful conduct + sufficiently connected with the contract of sale
breach
unable to repudiate
claim damages
lose possession = value at time of dispossession
loss directly and naturally resulting from the breach
no dispossession
difference in value
claim legal costs and consequential loss if they're not too remote
Transfer of limited title
appears from contract or inferred from circumstances an intention that seller should only transfer such title as he or a 3p may have
seller unaware of full extent of his title
implied
Chapman v Speller
s12(1) will not apply at all
s12(2)(b) - limited term will apply - known to seller and not to B have been disclosed to B before contract is made
s12(2)(b)
not disturbed by
seller
3p - intended only 3p title may have to be transfer
s12(4)
s12(5)
disclosure pre contract
s12(3)
s13 Condition
goods will correspond to their description
s13(1) - sale of goods by description
display to B not matter
Beale v Taylor
relied at least in part on description
must identify the goods
words as to identity not attributes
Ashington Piggeries v Christopher Hill
no loss of identity - still herring meal. only quality described
B relies on description
Harlington & LE v Christopher Hull Art
customs could trade could decide
only descriptive words will form part of the contract
must constitute term of the contract
mere rep or puff :red_cross:
extent?
terms
detailed list - close correspondence req
court applies strict standard - minor deviation = breach
Arcos v EA Ronaasen
1/6 increase in thickness made no difference but court held breach
Remedies
reject goods
repudiation
recover damages
s14
s14(2) Condition
satisfactory quality
sold in course of business
extends to containers in which goods are supplied
not include
unsatisfactory quality made known to B pre contract
agent not selling in course of business and B knows this or reasonable steps taken to bring this to his attention
defects which examination ought to reveal and examination is conducted
nature of examination required matters
standard that a reasonable person would regard as satisfactory, taking into account any description of the goods, the price (if relevant) and all other relevant circumstances
objective test but reasonable person is who is in position of the B - with his knowledge
description -
BS Brown V Craiks
whether or not the goods were of any use for any purpose for which goods complying with the description under which they were sold would normally be used
price -
Thain v Anniesland Trade Centre
- preferred not to pay for warranty - assumed risk of expense of repair
aspects of quality
fitness for
all
purposes for which goods of the kind in question are commonly supplied
appearance and finnish
aesthetic qualities
new or second hand
freedom from minor defects
quick or easy remedy availability not render it of satisfactory quality
safety
goods + packaging + instructions
durability
not req goods to remain of same standard as when first purchased
reasonable time lasting
Remedies
reject goods
repudiate contract
recover damages
s14(3) Condition
fit for purpose
Jewson v Boyhan
3 requirements
B expressly or by implication makes known to seller any particular purpose for which the goods are being bought
implied term that they will reasonably be fit for that purpose
regardless of whether or not those goods are commonly supplied for that purpose
its reasonable for B to rely on the skill or judgement of the seller or credit broker
reasonably fit
price
age
etc
second hand goods no need to reach same standard as new
durability
buyers use - misuse = loss
label and packaging
only to goods sold in course of business
goods supplied under the contract
communication of purpose
purpose obvious or purpose one of many commonly used for - no need to make seller known
non common/abnormal purpose
Griffiths v Peter Conway
skin allergy - not made this particular purpose known to seller so no breach
objective strict liability
Frost v Aylesbury
fact that seller could not have discovered the typhoid in milk was irrelevant. defect discoverable, latent or patent not matter
Reliance
B not rely or unreasonable for him to rely on skill or judgement of the seller
Tehran - Europe v ST Belton
partial reliance
issue that lies within the expertise of of the B - no breach
Remedies
reject goods
repudiation
damages
s15 Condition
bulk will correspond with the sample
s15(2)
free from defect which would not be apparent on reasonable examination of the sample
sale by sample is when there is an express or implied term in the contract to that effect
mere fact of exhibiting a sample to the buyer not sufficent
objectively show parties parties intended it to be sale by sample or
the sample was intended to form basis of comparison for the bulk
trade or custom indicating thats normal practice
express term
understand what sample is suppose to achieve
James Drummond -
not mean that the bulk must correspond with sample in every way
level of examination and correspondance
what reasonable or ordinary examination ought to reveal about quality
quality ought to be restricted to those which are patent, or were discoverable from such examination ..as under the circumstances the B might be expected to make
level differs from trade to trade
no defence that bulk could be made to correspond with the sample easily or inexpensively
E&S Ruben v Faire Bros
a15(2)(a) was breached even though the goods could have been made to correspond with the sample by simply warming them up
freedom from defects
limits
bulk and sample contain same defect in quality = no breach
non correspondence due to latent defect
not discoverable on reasonable examination
s15(2)(c)
free from any defect making their quality unsat which would not be apparent on reasonable examination of the sample
applies irrespective of examination happen in fact
remedies
reject the goods
repudiate
recover damages
Consumer Rights Act 2015
Satisfactory quality
s9
non exhaustive list
fitness for all the purposes for which the goods of the kind are usually supplied
s10
specific purpose made known to trader beforehands
must be fit for that purpose unnless
consumer does not rely on skill or judgement of the trader
unreasonable of him to rely on skill or judgement of the trader
appearance and finnish
freedom from minor defects
safety
durability
what a reasonable person would consider satisfactory for the goods in question taking in account all the relevant circumstances including
any description
s11
apply even where goods available to be seen and selected in shelves
CCR 2013 require certain info to be provided before consumer are bound by a contract (only 2nd hand goods sold at auction attended in person)
main characteristics of the goods (form part of contract)
any chanage made to this before or after contract not valid unless expressly agreed to by both parties
may not be necessary where pre contract info reflects the possibility of potential change envisaged may be made
cannot make change which would deprive consumer of protection under chap 2 CRA 2015
the price
lower standard expected of cheap or disposable goods
and any public statement by the trader or producer or their representatives, such as statements made in ads or on the labels of the goods
whether withdrawn or corrected before contract made
consumer should be influenced by it
consumer made aware of defect prior contract - no breach
reasonable examination ought to reveal and he in fact did examine
sample - even if in fact no examination made 'ought to reveal' defects excluded
final goods must match the sample/model (s14)
difference brought to attention - exlcluded
full goods must match sample
reasonable examination
Trader has right to supply goods etc
s17
right to sell or transfer goods or to transfer possession of them at the point when transfer of ownership or possession takes place
other party's right shall be made known to C before contract
Digital content
data which is produced and supplied in digital form
supplied for a price paid by the consumer
satisfactory quality
s34(1)
description
s36(1)
to include term that the digital content will match the description of it given by the trader to the C
trial version should be same. not sufficient if its same or better if it does not match the trial version
price (if relevant)
all other relevant circumstances
public statements about specific characteristics of digital content made by
trader
producer
representatives
withdrawl or correction
includes aspects
fitness for all purposes for which digital content of that kind is usually supplied
particular purpose fitness
s35(1)
consumer made it known to trader exp or by implication
rely
not unreasonable to rely on his skill and judgement
freedom from minor defects
safety
durability
objective test
not unsatisfactory when
specifically drawn to consumer's attention prior contract
examination ought to reveal and he in fact examines
examines a trial version pre contract and would have been apparent on reasonable examination
quality fitness description
s40
can update or alter digital content after its initial provision
licence
trader has right to supply digital content
unless otherwise agreed, trader will not usually pass on all property rights in digital content - ownership of intellectual property rights will remain with the rights holder
Exclusion of statutory terms
SGA s55
may be varied or negatived by
by course of dealing between them
by usage
express agreement
UCTA 1977
limited ability
s12 cannot be excluded or restricted by reference to any contractual term
non consumer dealer - terms implied by ss13-15 can be excl or restricted if it satisfies the requirement of reasonableness
s11 - term fair and reasonable to be included having regard to circumstances (at time of contract)
known
ought to have been known
in contemplation of the parties
matters
bargaining postiton
inducement to agree to a term
knew/reasonably ought to know extent of term
whether reasonable at time of contract to expect compliance with that condition would be practicable
whether goods were manufactured, processed or adapted to special order of the C
s11(4) restricting liability to a specified sum of money
resources expected to be available to him to meet liability
insurance
clause as a whole must be reasonable
drawn widely do capable of applying in unreasonable circumstances
not reasonable even if in particular case its application is not unreasonable
purporting to exclude all liability :red_cross:
CRA 2015
s31
can contract out protection that trader must have right to transfer possession or C must enjoy quiet possession but term subj to test of fairness in s62
restricting consumer's access to statutory remedies and rights - void
cannot contract out of C's statutory right under
28+29 :forbidden:
ss9-16 :forbidden:
s47 digital
ss34-37 +41 :forbidden:
46 :check:if fair
provision for arbitration :check: