Contract Law Essays – Legal Advice
1. The shop is relying on an exemption clause.Â Customer A is likely to have a remedy against the shop under schedule 3 of the Unfair Terms in Consumer Contracts Regulations (1999) which disallows a business to exclude a consumerâ€™s legal rights.Â In this instance, customer A may seek provision under the Sale of Goods Act 1979 s 14 (2) (goods must be of satisfactory quality) as amended by the Sale of Goods Act 1994 if the shop does not assist her.
2.Â Customer B may be able to rely on undue influence, the main case being National Westminster Bank v Morgan where it was held the claimant must not suffer from manifest disadvantage.Â Undue influence simply means unfair pressure on a party when forming a contract.Â The shop may argue there was no special relationship between the parties, in which case it is for customer B to prove this (Williams v Bayley).Â Following the decision in Lloyds Bank v Bundy, the question may be whether there was â€˜inequality of bargaining strengthâ€™ the shop acted as an agency for the HP financers.Â In this case, the creditor (financers) may be unable to enforce the contract against customer B (Kingsnorth Trust v Bell) if customer B can successfully plea undue influence then the contract may be rendered voidable (set aside).
3.Â In relation to customer C, she may be able to rely on the Sale of Goods Act 1979 as amended by the Sale and Supply of Goods Act 1994, which states under s.13, that the goods must be as described (see: Beale v Taylor).Â There must be a reliance on the description of goods as decided in: Grant v Australian Knitting Mills Ltd, but in this instance the customer is entitled to a remedy against the shop.
4.Â Customer D is seeking to bring a complaint for fraudulent misrepresentation under the Misrepresentation Act 1967.Â Stating that the childminders were qualified is a false statement of fact (Bisset v Wilkinson).Â Defined in Derry v Peek, fraudulent misrepresentation is a statement where there are several factors, one of which is a â€˜reckless statement made without caring whether it was true or notâ€™.Â In this instance, the shop is liable for all damages, including all loss, to the customer (Smith New Court Securities v Scrimgeour Vickers).Â
5. Neighbours are seeking to complain over a private nuisance. It can be defined as: â€œcontinuous, unlawful and indirect interference with a personâ€™s enjoyment of land…â€Â Balance must be stuck between conflicting interests, namely the shop needing its deliveries and the neighboursâ€™ peace in the morning.Â Has the duration being continuous? (Bolton v Stone)Â The shop being aware of the problem, if it fails to address the issue, then it may be liable for nuisance (Leakey v National Trust).
6.Â The shop has a duty of care under the Occupierâ€™s Liability Act 1957, s 2 (1) towards visitors, in this case invitees to the shop (s. 1 (2)).Â The shop must take â€˜reasonable steps to inform a visitor that an area is out of bounds.Â It did so in this case, with the notice on the door.Â Â Under s. 2 (3) (a) of the OLA 1957, the shop must be prepared for children to be less careful than an adult.Â However, the shop is entitled to be assured that the behaviour of a young child should be supervised by an adult (Phipps v Rochester Corporation).Â Therefore, this part of the claim may fail since the mother did not keep her child under supervision.
In relation to her claim for nervous shock, there is a 3 stage test as outlined in Alcock v Chief Constable of South Yorkshire Police, namely: a). Was the mother in sufficient proximate time and space to the incident?Â b) There must be close ties of love and affection to the victim c) The claimant must have seen or heard the incident or its immediate aftermath.Â As all these answers are in the affirmative, then it is likely this part of the claim may be successful against the store.
7.Â The shop is liable for injury to F under the Employerâ€™s Liability Act 1969, s1. F is no longer required to pursue the manufacturer as the shop has informed her, although she may do so if she wishes.Â F (employee) must show: a) That the defect in the equipment caused the accident and b) That the defect was due to a fault in the manufacture. In this part, the employer is liable directly to F.
With Fâ€™s claims for bullying, the shop is liable under vicarious liability, since this is a tort by an employee acting in the course of their employment.Â A noted case for this was outlined in Jones v Tower Boot Co
8.Â An advertisement is an invitation to treat, where the customer makes an offer to buy (Partridge v Crittenden).Â There may only be revocation of an offer where response is made to an invitation to treat (Payne v Cave).Â In this case the customer accepted the terms of the offer and is entitled to the goods as stated (Lefkowitz v Great Minneapolis Surplus Stores).Â
9. The shop is liable under the Consumer Protection Act 1987.Â The fact that Hâ€™s sister did not make the contract is irrelevant as the case of Stennett v Hancock illustrated that a duty of care is owed to a person receiving presents from the original buyer (H). Under s. 2 (1) of the CPA 1987, the supplier (shop) is liable, since the customer cannot identify or contact the manufacturer.Â
10.Â The shop owes K a duty of care as outlined in the â€˜neighbourâ€™ principle of Donoghue v Stevenson.Â To prove negligence, there must have been a duty, that duty was breached and causation. Therefore, the shop is negligent in this case.Â Also, K may have a claim under the Consumer Protection Act 1987 which places strict liability on anyone in the distribution food chain where a consumer suffers harm.
11.Â This contract is frustrated.Â In the case of Taylor v Caldwell, it was determined that where a contract depends on a given thing (in this case 100 copper saucepans), and there is impossibility of performance of the contract, then the performance should be excused.Â Both parties are discharged from further performance in this case as the supplier cannot supply the order requested.
12.Â Part payment of a debt can never be satisfaction for the whole payment as outlined in Pinnelâ€™s Case (1602).Â This has since been confirmed in Foakes v Beer and Re Selectmove.Â Further, if the money is unable to be recovered at a later date, the doctrine of promissory estoppel applies where further rights to recover the remaining sum will be extinguished (High Trees case)
13.Â This is a case of pure economic loss.Â The negligent driver does not owe a duty of care to the shop as there was no damage to the shopâ€™s property (Spartan Steel v Martin).Â Based on policy guidelines, the loss of profit to the shop is â€˜non-recoverableâ€™ to avoid the driver from a â€˜crushing liabilityâ€™.
14.Â This is a negligent statement on the part of the accountants.Â In Hedley Byrne v Heller, the House of Lords held that a â€˜…high degree of proximity or closeness of relationship is required, and for liability to arise, a special relationship has to be shown between the maker of the statement and the person who relied on it.â€™Â XYZ should be able to sue the accountants.
Charman, M, (2002), Contract Law, 2nd edn, London, Willan Publishing
Giliker, P and Beckwith, S., (2004) Tort, 2nd edn, London, Sweet and Maxwell
Martin, J and Turner, C., (2001) Contract Law, London, Hodder & Stoughton
Martin, J and Turner, C., (2001) Tort Law, London, Hodder & Stoughton
Richards, P, (2002), Law of Contract, 5th edn, London, Longman PublishingOrder Now