Aspects of Business Law - Essay Example

Introduction to Business Law Question Jenny spent two days in hospital and two weeks off work in order to recover from her injuries. Her watch is unfortunately beyond repair. In a letter to Remi, Jenny made very clear that she expected to be compensated for her loss and injuries. Remi argues that he has no liability for the accident because of the notice near the stage excluding any liability. It must first be pointed out that the injury was by direct action was due to Jenny being “Lost in the moment of the guitar solo” hence she was unable to notice that certain boxes of tequila were left at side of the stage. Moreover there exists a notice that provides for the exclusion of the establishment from liability. The law is clear that:” Where a contract term or notice purports to exclude or restrict liability for negligence a person’s agreement to or awareness of it is not of itself to be taken as indicating his voluntary acceptance of any risk” (Section 2, subsection 3, Unfair Contract Terms Act 1977). This means that the posted notice of exclusion from liability will not insulate Remi Shorro, proprietor of Remi’s Place from civil actions for liability due to injury and loss of property suffered. However it must be established that Remi Shorro is negligent in the sense that his negligence facilitated the injury of Jenny. Negligence as per the law is treated as: “(1) For the purposes of this Part of this Act, “negligence” means the breach— (a) of any obligation, arising from the express or implied terms of a contract, to take reasonable care or exercise reasonable skill in the performance of the contract; (b) of any common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty); (c) of the common duty of care imposed by the Occupiers’ Liability Act 1957 or the Occupiers’ Liability Act (Northern Ireland) 1957” (Section 1, Unfair Contract Terms Act 1977). It is therefore required that Remi Shorro committed any of the given acts to merit being negligent and thus the provision not permitting exclusion from liability be considered applicable. Although Remi Shorro claims that he does not possess any liability for the injuries and loss of Jenny it is not correct to say that this is due to the fact that a notice for the same exists. Rather the contention that holds most water is the one that forwards the idea that Jenny is burdened to prove that Remi Shorro was negligent since if this is established then the prohibition on notices of exclusion from liability will be in effect and the said notice in this case will have no merit. Hence it would be advised to Remi Shorro that his initial response to the claim of Jenny is for the latter to establish the former’s negligence as outlined by the law. Question 2 Tania has threatened to sue Remi claiming that she relied on the skill of the shop in selecting its merchandise and will sue unless she receives a full refund. It must first be cited that the claimant, Tania Oleg, asserted that “she was a specialist and knew all about the Fender Stratocaster guitars”, despite the fact that Peter, the assistant in charge of the sale of items in Remi’ Place already informed her that the guitar which Tania wanted to purchase:” had just arrived in the shop that morning and had not been authenticated not been authenticated.” This establishes the fact that Remi’s Place as well as its agent Peter acted in good faith and Tania is precluded from claiming otherwise. The law provides that:” Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage...”(Section 1, Contributory Negligence Act of 1945). From the given circumstances it is clear that Tania is the direct and proximate cause of the harm and injury which she is basing her claim against Remi Shorro on. The concept of contributory negligence outlines the liabilities of those involved. From this we can assert that Remi Shorro and Remi’s Place was not negligent and in fact through its agent, Peter availed of all means to protect the interests of Tania Oleg, the buyer by asking:” whether she would be willing to wait for the authentication certificate” so as to validate the quality of the product, an offer she denied. Furthermore the law provides that:” In a contract of sale, other than one to which subsection (3) below applies, there is also an implied term that— (a) the goods are free, and will remain free until the time when the property is to pass, from any charge or encumbrance not disclosed or known to the buyer before the contract is made, and (b) the buyer will enjoy quiet possession of the goods except so far as it may be disturbed by the owner or other person entitled to the benefit of any charge or encumbrance so disclosed or known”(Section 12, subsection 2, Sale of Goods Act of 1979 as amended). From this it is clear that Remi Shorro is liable in the sense that any disruption of the buyers enjoyment will make the seller of the said product liable. Moreover the implied term may only be breached if the buyer relied upon the description (Harlingdon & Leinster Enterprises Ltd v Christopher Hull Fine Art Ltd). However if the buyer is an expert, reliance may not be established (Harlingdon & Leinster Enterprises Ltd v Christopher Hull Fine Art Ltd). That is to say that the entire issue of whether the buyer relied on the description is moot if the buyer as expertise in the object being sold. Therefore the entire contention that the seller is liable since due to the implied terms the buyer relied on the object’s description to the latter’s detriment is no longer viable. In the given scenario Tania Oleg claimed:” she was a specialist and knew all about the Fender Stratocaster guitars”, this fulfils the legal requirement that reliance on description is no longer necessary and Remi Shorro is not liable for the violation of implied terms. This is what Remi Shorro will be advised to respond with as to the contention of Tania Oleg, the claimant. Question 3 Remi is still rather angry about the stereo system and wants to sue the Ear Ltd and has asked for your help. The scenario raises that question that was the offer and counter offer made by the parties as to the sale of a music system constitute a valid sale and that the seller is bound by it to deliver the said object of sale to the buyer? To answer this would require a perusal of the law on sales that governs acts in question. Moreover we have to take into account that the Sale of Goods Act 1979 has already been amended by a more recent legislation. The governing law provides that: “A contract of sale of goods is a contract by which the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price” (section 2 (1), Sale of Goods Act 1979). This means that for a sale to exist there has to be an existence of an agreement between all parties concerned as to the sale which can be deduced from subsequent actions they have done or when the product is already delivered to the buyer. When Remi Shorro negotiated with JR for a lower price for the object at issue there has been no agreement between them and the product has not yet been delivered to the former. Moreover the law as amended provides that a sale exist when the buyer accepts the goods in manner which he:”...intimates to the seller that he has accepted them, or... when the goods have been delivered to him and he does any act in relation to them which is inconsistent with the ownership of the seller” (section 35, Sale and Supply of Goods Act 1994). Furthermore the offer to buy the product in question at a lower price was an attempt to negotiate its price which cannot be treated as a sale. After all any displaying of a price of a product is merely an invitation to treat not an offer (Fisher v Bell [1961] QB 394). Therefore availing of products via offer of price for goods with displayed prices does not constitute a sale of the same goods. Applying this to the internet or to online purchases, websites are like virtual shops thus products are presented as invitations to treat, not offers. Availing of them will not give rise to a perfected contract of sale which can give rise to legally enforceable rights among the parties involved. It has to be understood that in a contract of sale the buyer has to unequivocally agree to buy the product and the seller must equally agree to sell the same. And absence of this meeting of the minds precludes the inception of a contract of sale. Hence rights to the goods do not pass to the buyer from the seller. In assessing the given scenario, it is clear that at the onset the Remi Shorro emailed to Ear Ltd that he agrees to purchase the object being advertised for sale at £5,250 which is a price lower than the advertised price. This offer even if it utilized the term “agree” is not the agreement contemplated by the law as well as applicable legal doctrine. The agreement required must be common between the buyer and the seller in the sense that what they have in mind is the one and the same thing, that is to say the nature of the sale. The email from Ear Ltd that the price for the product is the price as advertised is not in any way acceptance of any offer to purchase assuming one exist in the context of the scenario. It was merely an email informing Remi Shorro of the price of the product. When Remi Shorro emailed JR of Ear Ltd that he agrees to purchase the product at the agreed price this again does not constitute a contract of sale. JR and Ear Ltd still has to agree and this agreement never materialized, particularly the kind that the law require for a contract of sale to be created. When JR ignored the email and sold the item in question to another he was legally empowered to do so. He still as seller had the right to choose whom to sell the product. The only time he is bound is when the sale is perfected meaning, he and the buyer agree on the price and conditions of the sale if there are any, as to the object to be sold as well as all material aspects of it and lastly any other stipulations that manifest their interests and rights. Moreover JR and Ear Ltd cannot be sued for selling the product to another since they are not duty bound to sell the same to Remi Shorro nor hand over possession of it to him. From the foregoing no sale exists. Consequently Remi Shorro has not rights and may not legally proceed against JR and Ear Ltd. The most sound legal advice to be forwarded to Remi Shorro is not pursue the matter further as he will likely incur cost in litigation that will not likely bear any fruit nor result to a favourable outcome for his interests. Since the prevailing trend in terms of court decisions all point to the fact that any contention that does not spring from legally and actually existing claims will be give no weight and merit. Bibliography Contributory Negligence Act of 1945. [Online]. Available at: http://www.statutelaw.gov.uk/content.aspx?LegType=All+Legislation&title=negligence&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&sortAlpha=0&TYPE=QS&PageNumber=1&NavFrom=0&parentActiveTextDocId=1088684&ActiveTextDocId=1088687&filesize=6522. [Accessed 11 May 2010]. Fisher v Bell [1961] QB 394 Harlingdon & Leinster Enterprises Ltd v Christopher Hull Fine Art Ltd Sale of Goods Act 1979. [Online]. Available at: http://www.johnantell.co.uk/SOGA1979.htm. [Accessed 11 May 2010]. Unfair Contract Terms Act 1977. [Online] Available at: http://www.johnantell.co.uk/UCTA1977.htm. [Accessed 11 May 2010]. Read More