Concepts of Mutuality and Adequacy of Damages - Assignment Example

? Case Study: “Stinky Trainers” Case Study: “Stinky Trainers” The first issue under consideration in this study is rights of Matt’s parents as far as Sale of Goods Act 1979 is concerned. We will consider whether the parents have a right to claim for refund or replacement from the retailers. In this case, the parents should base their claims on implied terms. This is because they obvious and not necessary to have been written. According to Section s12. (1), a contract of sale, contains an implied condition on the part of the seller that in the case of a sale he has a right to sell the good, and in the case of the agreement to sell such a right will only be valid at the time when the property is to pass (Sale of Goods Act 1979). This means that the goods are owned by the seller (retailer in this case) and, therefore, the seller cannot deny ownership because he is not the manufacturer (Nike). The case of Rowland v Divall applies in this scenario. In this car was bought by the plaintiff from the defendant who was not the owner. It was held that the rightful owner could recover the car. The next consideration here will be whether the parents have a right to claim as far as contract description is concerned. According to section s.13 (1), “Where there is a contract for selling goods based on description, condition implies that the goods must correspond with the description.” Therefore, this means that goods must agree with the description. The fact that Nike agreed that they had put a cotton canvas in place of artificial lining, implies that the good does not correspond to the description. Therefore, the parents have a right to claim for replacement or refund. This scenario is similar to case of Beale v Taylor 1967. This concerned a car, which was made of a collection of several vehicles soldered together. The other issue here can also be a consideration of whether the parents have a right as far as the quality of the shoes is concerned. The cases of goods which are usable, but do not meet specific expectations (they have some defect) are addressed in sections.14 (2). The parents have a right to claim for refund or replacement because the shoes are stinky (they are usable but have some defect) and cause embarrassment to the wearer. This is similar to the case law Rogers and another v Parish (Scarborough) Ltd and another 1988. During this case, it was held by the court of appeal that a Range Rover was not of satisfactory quality (un merchantable) even though it was fit to drive. This was because it had a number of defects. Similarly under the same section s.14(2) SOGA 1979, it is not mandatory that the goods be inspected during the time of buying (by the consumer), and that protection against defective good is allowed even if Matt had observed that a cotton canvas was put under the laces. Therefore, it can be argued that Matt’s parents can claim for breach of contract. The other part will deal with whether or not Matt’s parents have a right to argue any statements made by Nike Company when contacted by the Watchdog. For instance, one of the statements read: In isolated instances when such a problem has occurred, the company recommends returning of the product to the retailer where the footwear is purchased to ask for a refund or replacement. This statement means that the company accepts to refund the cost of goods purchased if they are found to have a default or do not meet the standards specified. However, they have not mentioned anything concerning liability for any damage caused because of using the shoes. Finally, under rights we shall consider whether the parents have a right to discharge the contract or not. Section s.15 (Sale of Goods Act) implies that the buyer regardless of the magnitude of the damage can discharge a contract (whether big or small). The case law similar to this was that of Arcos Ltd. V E.A. Ronaasen & Son [1933] A. C. 470. This section, however, does not give consideration to liability in clear terms. Therefore, the parents have a right to discharge the contract and claim breach of contract under the sale of Goods Act 1979 or other related laws for instance the Unfair Contract Terms Act 1977, s12. To conclude this part, we shall look at possible remedies available to Matt’s parents if her claim on breach of the contract is successful. Under SOGA, there is a provision that awards specific performance. This has an element of discretion and is not often awarded by the courts (Jones & Goodhart, 1996). According to section s.52(1), there is no guarantee that any claim for damages beyond that of the price of good could be claimed even if the buyer is harmed by the goods purchased. Question 2 A tort is a civil wrong that is committed against an individual rather than a state (Best, & David, 2003). The law of tort states that the law protects specific individual interests. According to Best and David, the relevant principles of the law of tort are malice, intention, and negligence. The protection of these interests can result into a court awarding an individual damages. These damages can be in the form of money paid for infringement of a protected interest. I would advise the parents to go to court and seek for legal redress of the matter. In court, it may also be requested that the claimant (Matt’s parents) prove that the defendant (shop) was at fault. Fault in this case means malice, intention, and negligence. In this case, the parents should sue the shop for negligence. Negligence in this case can have varying meanings. It may refer to a careless behavior or tort of negligence. In the case of careless behavior and the court finds one to be negligent, the court will always make an ex post examination of the conduct of the person claimed to be negligent (shop). According to the law of Tort, a person is guilty of negligence if though he tries his best, but fails to meet the standard legal requirement and causes damage. This means that the shop will be held liable for negligence by the court irrespective of whether it had control or no control over the situation. This is because Matt’s foot was injured. In such a judgment, no account of individual disabilities is put into consideration. Therefore, the court will apply the test of what a reasonable person in the defendant’s position would have done. Consider the following case law: Nettleship v Weston (1971) 2 QB 691 The plaintiff was a driving school teacher while the defendant was a learner driver. The plaintiff succumbed to injuries due the negligent driving of the defendant. Then the court held that all drivers who were learners would be judged by the standards of judging an average competent driver. On the contrary, a person is not guilty of negligence if he completely disregards the safety of others but does not cause them injury. In the case of the foot rot, the basis of the case will be “a reasonable expectation.” Matt can claim damages because the terms of the sale between the seller and the buyer could not be considered equitable in terms of the pain Matt suffered as a result of the transaction and the money Matt’s parents lost to cater for his medication. Only one of the requirements for duty of care is relevant to the case. That is *fair* just and reasonable. Under this duty, one is not allowed to cause an injury to another person. The fact that Matt succumbed to injuries on his toes means that there was a breach of contract. Question 3 A legal agreement between two parties, which can be enforced by the law, is called a contract (Kidner, 1987). Contracts can be written, oral, or implied. Simple contracts whose formation is not subject to any legal procedures include partnership agreements or contract of sale of goods. For any legal binding, contract to exist there are must be specific basic elements. These basic elements of a contract include offer, acceptance, consideration, free consent, and capacity to contract (Kidner, 1987). From the above, it can be said that there was a legal binding contract between the Nike shop and Matt’s parents. The contract came into existence when the Nike shop took Matt’s money. The fact that there were shoes for sale in the shop means there was an invitation to treat (Fisher v Bell [1960] 3 All ER 731; P.S.G.B. v Boots Chemists [1953] 1 All ER 482). This invitation caused Matt to pick the books from where they had been displayed to the payment counter; he made an offer buy shoes. In this case, an offer is the willingness to contract on specific terms made by the offeror with the intention that if the offer is accepted, he will be bound by the contract. In addition, an acceptance was made when the shop attendant at the counter (until) took Matt’s money. Expression of absolute and unconditional agreement to all terms set out in the offer is called acceptance. It can be oral or in writing (refer to implied acceptance of an offer (Williams v Carwardine [1833]5 Car & P 566). During this transaction, there was also consideration in the sense that Matt got the shoes while the Nike shop got the money. That is to say, each part to the contract received something of value. For instance, suppose I promise to give you pen but you don’t give me anything in return; if I do not keep my promise and fails to give you a pen then you cannot go to court to seek legal redress of the matter in order to compel me to give you the pen. According to Pollock suggested that the price for buying another person’s promise is called a consideration. Therefore, there can be no contract in the absence of a consideration. Currie v Musa (1975) This was a significant case, which resulted into the formulation of acceptable definition of considerations. This case described a consideration as ‘some right, profit, interest of benefit from one party for which forbearance, loss, detriment or responsibility assigned, suffered or that is undertaken by the other’. To further elaborate on this, the following case can also be considered: Carlil v Carlill Smoke ball Co. In this case, Mrs. Carlill bought and used carbolic smoke ball to prevent influenza. This was in response to a prior advertisement. She, however, still entered into a contract. The court held that she was entitled to damages, as her consideration to contract was the inconvenience in swallowing the ball while the consideration for the company was raising the sales of the smoke ball. Therefore, because in this case, there was an offer, acceptance, and consideration the contract is legally binding and I advice Matt’s parents to sue the Nike shop. References Arcos Ltd. V E.A. Ronaasen & Son [1933] A. C. 470. Beale v Taylor 1967 Best, A. & David, W., 2003. Basic Tort Law: cases, statutes, and problems. New York: Aspen. Carlil v Carlill Smoke ball Co. Currie v Musa (1975) Fisher v Bell [1960] 3 All ER 731; Jones, G & Goodhart, W., 1996. Specific performance: concepts of mutuality and adequacy of damages, 2nd Edition. London: Butterworths. Kidner, R., 1987. The Unfair Contract Terms Act 1977 – Who deals as consumer?” 38 Northern Ireland Legal Quarterly. p. 46 Nettleship v Weston (1971) 2 QB 691 P.S.G.B. v Boots Chemists [1953] 1 All ER 482 Rogers and another v Parish (Scarborough) Ltd and another 1988. Rowland v Divall Sale of Goods Act 1979 Williams v Carwardine [1833]5 Car & P 566 Read More