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major_clangerNearly there with revision now!
One absolute dead cert question (well, it's been on every W200 paper for the last four years) is one on contract and/or tort, always phrased in terms of someone buying some sort of goods which go wrong and burn the kitchen down, or paying a builder to do some work which turns out badly... and you are asked to explain the legal redress available. What follows is my 'how to answer this question' summary, which I've just written out as a check to myself that I know this stuff well enough to tackle a question on it.
MC
Firstly, just confirm that there is a valid contract. Offer/acceptance, intent to create legal relations and consideration are all required. At this point, note the method of payment - if it is by credit card, and for more than £100, the Consumer Credit Act 1975 may be relevant later.
Has there been a breach of contract? For sale of goods, s13 Sale of Goods Act 1979 implies in a condition that goods must be as described, and s14 implies a condition that goods must be of satisfactory quality and fit for purpose (NB - goods can be one but not the other). The corresponding terms for hire purchase are s9 and s10 of the Supply of Goods Act 1973 and for a contract for services are s3 and s4 of the Supply of Goods and Services Act 1982.
If there is a question of fitness for purpose, the purpose is that stated by the buyer when making the contract. If no purpose was stated, then ordinary reasonable use is assumed.
The seller may attempt to rely on an exclusion clause or notice. To be valid, this must pass the common law tests and the statutory requirements of the Unfair Contract Terms Act 1977. For the former, the chief issue is whether it was incorporated when the contract was made. If it was drawn to the attention of the buyer afterwards it is not part of the contract (Olley v Marlborough Court). If it was in contractual documentation (e.g. an invoice) then it will probably be incorporated unless it was such that the buyer would not have seen it. However, if the buyer signed it, then it is deemed incorporated whether or not the buyer 'read the fine print' (Gracoub v L'Estrange). As for UCTA 1977, s6 provides that a seller cannot use an exclusion clause to evade s13/s14 SOGA 1979, provided that the buyer is dealing as consumer (i.e. not acting in the course of their own business). s7 covers s3/s4 SGSA 1983. Also, tests for reasonableness of exclusion clauses, and the contra preferentum rule.
If the contract is valid and liability not excluded, has it been breached? This is usually straightforward (e.g. a failed item is not fit for purpose). Possible issue of 'acceptance' - the buyer should not unduly delay taking action. Remoteness of damage assessed via Hadley v Baxendale - damage arising naturally from breach, also damage (e.g. more unusual or extreme) that both sides knew could arise in the event of a breach. Other party liable for all substantial consequences of breach, e.g. damage to goods, damage to person or other property, loss of income etc, but not generally disappointment. However, buyer must act to mitigate scope of damage and can only claim to restore original position, not better it. Buyer can also reject goods and terminate contract, so cannot be forced to just accept a replacement.
What about negligence? Negligence can arise in contract, e.g. contract for services. s13 SGSA 1983 implies condition that work will be carried out with reasonable care and skill - shoddy or negligent work is thus a breach of contract, with appropriate remedies. s2 UCTA 1977 prevents exempting liability for negligence causing personal injury or death, or unreasonably excluding liability for negligence causing other damage - this applies to tortious negligence in general, as well as contractual negligence under s13 SGSA 1983.
However, in many cases there is no contract, e.g. fault is responsibility of original manufacturer, or damage/injury is to a bystander. Here there is likely to be a claim for tortious negligence against manufacturer under Donoghue v Stevenson. Negligence requires duty of care, breach of such duty and resulting damage. Duty of care in D v S is to ensure that goods reach end user in safe condition. Does not apply if there is a likelihood of intermediate examination (rare in consumer goods). Res Ipsa Loquitur rule also often applies - if production process was under control of manufacturer, claimant does not have to prove where defect arose, instead burden of proof shifts to manufacturer to show why fault is not assumed. Duty of care is taken to be increased if the defendant knows the claimant is or could be specially vulnerable (Paris v Stepney Council).
Causation of damage is assessed on the 'but for' principle, i.e. would the damage not have occurred but for the breach of duty of care? (If it would have happened anyway, no liability - Barnett v Kensington Hospital). Remoteness of damage is assessed by Polemis as modified by The Wagon Mound, i.e. defendant is responsible for all damage ordinarily arising from breach, but not for consequences of freak chain of events. However, the defendant must take the claimant as he finds him (the 'eggshell skull rule' - liable for disproportionate damage to specially vulnerable claimant). Damages do not include 'pure economic loss', e.g. value of original product. As such, claim for breach of contract is more fruitful if available.
Alternative path for liability in negligence is via the Consumer Protection Act 1987. This establishes strict liability for damage caused by a defect in a product. Liability is on anyone involved in producing, distributing or selling product, but the latter can exempt responsibility to the original manufacturer unless they cannot identify him. Liability is for personal injury, or for property damage over £275. Various defences available, including that the defect was not detectable within the 'state of the art'.
If negligence is by an employee, employer may be liable under principle of vicarious liability. Various tests as to whether employee is under contract of service to employer, also negligence must have happened in course of authorised work (not when employee 'on a frolic of his own').
Finally - CCA 1975. s75 creates liability for supplier's breach of contract on credit card company if value of goods or services purchased are between £100 and £30k. Often useful if supplier has since gone bust!
One absolute dead cert question (well, it's been on every W200 paper for the last four years) is one on contract and/or tort, always phrased in terms of someone buying some sort of goods which go wrong and burn the kitchen down, or paying a builder to do some work which turns out badly... and you are asked to explain the legal redress available. What follows is my 'how to answer this question' summary, which I've just written out as a check to myself that I know this stuff well enough to tackle a question on it.
MC
Firstly, just confirm that there is a valid contract. Offer/acceptance, intent to create legal relations and consideration are all required. At this point, note the method of payment - if it is by credit card, and for more than £100, the Consumer Credit Act 1975 may be relevant later.
Has there been a breach of contract? For sale of goods, s13 Sale of Goods Act 1979 implies in a condition that goods must be as described, and s14 implies a condition that goods must be of satisfactory quality and fit for purpose (NB - goods can be one but not the other). The corresponding terms for hire purchase are s9 and s10 of the Supply of Goods Act 1973 and for a contract for services are s3 and s4 of the Supply of Goods and Services Act 1982.
If there is a question of fitness for purpose, the purpose is that stated by the buyer when making the contract. If no purpose was stated, then ordinary reasonable use is assumed.
The seller may attempt to rely on an exclusion clause or notice. To be valid, this must pass the common law tests and the statutory requirements of the Unfair Contract Terms Act 1977. For the former, the chief issue is whether it was incorporated when the contract was made. If it was drawn to the attention of the buyer afterwards it is not part of the contract (Olley v Marlborough Court). If it was in contractual documentation (e.g. an invoice) then it will probably be incorporated unless it was such that the buyer would not have seen it. However, if the buyer signed it, then it is deemed incorporated whether or not the buyer 'read the fine print' (Gracoub v L'Estrange). As for UCTA 1977, s6 provides that a seller cannot use an exclusion clause to evade s13/s14 SOGA 1979, provided that the buyer is dealing as consumer (i.e. not acting in the course of their own business). s7 covers s3/s4 SGSA 1983. Also, tests for reasonableness of exclusion clauses, and the contra preferentum rule.
If the contract is valid and liability not excluded, has it been breached? This is usually straightforward (e.g. a failed item is not fit for purpose). Possible issue of 'acceptance' - the buyer should not unduly delay taking action. Remoteness of damage assessed via Hadley v Baxendale - damage arising naturally from breach, also damage (e.g. more unusual or extreme) that both sides knew could arise in the event of a breach. Other party liable for all substantial consequences of breach, e.g. damage to goods, damage to person or other property, loss of income etc, but not generally disappointment. However, buyer must act to mitigate scope of damage and can only claim to restore original position, not better it. Buyer can also reject goods and terminate contract, so cannot be forced to just accept a replacement.
What about negligence? Negligence can arise in contract, e.g. contract for services. s13 SGSA 1983 implies condition that work will be carried out with reasonable care and skill - shoddy or negligent work is thus a breach of contract, with appropriate remedies. s2 UCTA 1977 prevents exempting liability for negligence causing personal injury or death, or unreasonably excluding liability for negligence causing other damage - this applies to tortious negligence in general, as well as contractual negligence under s13 SGSA 1983.
However, in many cases there is no contract, e.g. fault is responsibility of original manufacturer, or damage/injury is to a bystander. Here there is likely to be a claim for tortious negligence against manufacturer under Donoghue v Stevenson. Negligence requires duty of care, breach of such duty and resulting damage. Duty of care in D v S is to ensure that goods reach end user in safe condition. Does not apply if there is a likelihood of intermediate examination (rare in consumer goods). Res Ipsa Loquitur rule also often applies - if production process was under control of manufacturer, claimant does not have to prove where defect arose, instead burden of proof shifts to manufacturer to show why fault is not assumed. Duty of care is taken to be increased if the defendant knows the claimant is or could be specially vulnerable (Paris v Stepney Council).
Causation of damage is assessed on the 'but for' principle, i.e. would the damage not have occurred but for the breach of duty of care? (If it would have happened anyway, no liability - Barnett v Kensington Hospital). Remoteness of damage is assessed by Polemis as modified by The Wagon Mound, i.e. defendant is responsible for all damage ordinarily arising from breach, but not for consequences of freak chain of events. However, the defendant must take the claimant as he finds him (the 'eggshell skull rule' - liable for disproportionate damage to specially vulnerable claimant). Damages do not include 'pure economic loss', e.g. value of original product. As such, claim for breach of contract is more fruitful if available.
Alternative path for liability in negligence is via the Consumer Protection Act 1987. This establishes strict liability for damage caused by a defect in a product. Liability is on anyone involved in producing, distributing or selling product, but the latter can exempt responsibility to the original manufacturer unless they cannot identify him. Liability is for personal injury, or for property damage over £275. Various defences available, including that the defect was not detectable within the 'state of the art'.
If negligence is by an employee, employer may be liable under principle of vicarious liability. Various tests as to whether employee is under contract of service to employer, also negligence must have happened in course of authorised work (not when employee 'on a frolic of his own').
Finally - CCA 1975. s75 creates liability for supplier's breach of contract on credit card company if value of goods or services purchased are between £100 and £30k. Often useful if supplier has since gone bust!
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no subject
Date: 2004-10-12 02:35 pm (UTC)MKK
no subject
Date: 2004-10-12 03:05 pm (UTC)MC
no subject
Date: 2004-10-12 11:30 pm (UTC)no subject
Date: 2004-10-13 04:56 am (UTC)The exam is three hours and closed-book; you have two answer two of five questions on general UK law, and two of five on European law. Some are quite specific, whilst others are broader (e.g. 'explain the doctrine of precedent') and some are very vague and woolly indeed ('Should human rights be implicit or explicit?'). The tutor's advice is to avoid the latter unless you are desperate (or an obsessed bore on the topic in question) as it is very hard to be sure that you are writing an answer that the examiner can definitely award good marks for!
MC