British Consumer Law - Essay Example

?The General Product Safety Regulations (GPSR) 2005, Consumer Protection Act 1987, Supply of Goods and Services Act 1982 and Sale of Goods Act, 1979 important British legislation and regulations that guide the way and manner in which buyers and sellers must relate to each other in a legally justifiable fashion1. In this paper, there are three scenarios with consumer law context that will be analyzed using the three afore mentioned legislations and laws. In all cases of the analysis, breaches shall be identified as well as any strict liabilities that come with them so that remedies shall be suggested in the long run. One of the problems, which will be analyzed using General Product Safety Regulations (GPSR) 2005 for guaranteed safety of a product bought will do with Kingsley purchasing a luxury coffee machine for Miriam’s mother from Home Appliances Limited (HAL). There is also the case of Kingsley, engaging the services of Ben to provide a specified kind of wallpaper for his room, which had been advertised on television. Under the Sale of Goods Act, 1979, a buyer is entitled and has the right to receiving exactly what he or she prefers from a seller2 but it turns out that this is not what happened to Kingsley. In the last case, which talks about Consumer Protection Act, Kingsley had gone to purchase a dog, which was advertised to be a pedigree dog. The dog was also said to be a very friendly dog that would make a wonder companion of the family as a family pet. However, two months after buying the dog, it turns out that the dog is not a pedigree but a crossbreed; turning out to be a very dangerous dog. LUXURY COFFEE MACHINE As part of consumer law and practice and by statutes in the General Product Safety Regulations, 2005, consumers are given maximum protection from defective products, such that the mere fact that a consumer shows that a product was faulty and thus caused damage should be enough to guarantee a substantiated claim3. Before, consumers had to prove negligence by the manufacturers of the products before their claims could be substantiated4. In relation to the case of the purchased made by Kingsley, it would be noted that the safety of the product purchase was not fully guaranteed because it caused both damage and harm. The product became damaged in the course of its usage, whiles the user of the product suffered physical harm. Clearly, the level of damage caused is only possible in electrical appliances that have faults because of the level of hotness that was recorded5. In Abouzaid v. Mothercare (UK) Ltd., 2001, claimant’s mother purchased a Cosytoes sleeping bag, which was designed to be attached to a child’s pushchair with elastic straps but whiles fixing the product with his mother, one of the elastic straps slipped and lashed back, causing permanent eye damage to the user. Though the claim of damages in negligence was overruled by the court, it was held that Mothercare Ltd was still liable under the Consumer Protection Act strict liability provision because defect in the product is always a major consideration over the level of care exercised by the consumer and in the case of defect in the product, exercise of care may not necessarily protect the manufacturer from ensuring that there are no defects with their products6. Based on the case law available and the binding legislation, a number of considerations will be made when giving advice for the case of Kingsley and Miriam. In the first place, the fact that the product purchased is electrical equipment means that the case comes under the range of goods covered by safety regulations. Secondly, safety regulations are binding on both new and second hand products and so the product is also covered in this case. Specifically, the fact that the luxury coffee machine caused damage and harm by becoming excessively hot means that the product was not well insulated7. Meanwhile, under both the General Product Safety Regulations (2005) and Consumer Protection Act, 1987, it is required that electrical equipment will be well insulated and earthed so that they will not cause excessive hotness and shock8. It will therefore be advised that a legal redress be sought from the company, which made the sale. With regards to the notice that read, “Sale items cannot be returned”, the company must prove that at the time of the purchase, the notice was advertised. But even if the notice was in place at the time of the purchase, strict liability may apply, whereby legal responsibility will still be imposed on the company without the user of the product being proofed of carelessness or fault. By invoking strict liability, the company will not be in a position use an implied term, which is defined in ss.12 and 25 of the Unfair Contract Terms Act, 1977 to defend their point. This is because a similar situation prevailed in St. Albans City and District Council v International Computers Ltd [1996]. But even at all if it was hanging, they must also prove that they sought the consent of the buyers to it through a binding contract, where a binding contract in this case will be either a signed terms of purchase or one that was just read by the buyer9. In the absence of any of these two, the buyer cannot be held liable under that notice. With reference to Abouzaid v. Mothercare (UK) Ltd., 2001 and advice made, it will be suggested to the client claim for a total replacement of the product and that the expenses of injury and for that matter hospital care be fully catered by the Home Appliances Ltd (HAL). This is because the defect of the product is always paramount whether or not the user exercised care in the use of the product. Meanwhile the notice at the store has not been substantiated as binding to the user in the form of a read or signed contract. Who has a contract? What are the claims? Discuss both civil and criminal liability. Barclaycard? Personal injury – does the mother have a contract - LIVING ROOM WALLPAPER S.13 of the Sale of Goods Act, 1979 talks about sales by description, whereby goods sold must always correspond to a set of description that had been given out10. In relation to the problem analysed above, it would be noted that Kingsley ordered for a specified goods or product that had been described through the advertisement that he saw on television. More importantly, S.13 of the Sale of Goods Act, 1979 makes it clear that all forms of “private sales and statements made about the quality of the goods” must be fulfilled in the long run11. In its specifics, the quality that was assured to Kingsley was the fact that the wallpaper will last for 10 years. It is worth noting that this promise on the quality of the wallpaper came not with any forms of corresponding conditions as to how the quality will be achieved or not. As in Rowland v. Divall (1923) where it was held that the defendant was in breach of the implied condition as reflected in s.12 of SGA for not giving the plaintiff what the defendant was contracted to deliver. It will be advised that the binding legislation of Sales by Description was not thoroughly followed in the circumstance of the problem analysed above and so all forms of legal redress must be based on S.13 of the Sale of Goods Act, 1979. In the case of Varley v. Whipp, 1990, a typical scenario of breach of Sale of Goods Act, 1979 and the remedies that come with it was exhibited when a second hand reaping machine was sold with the description that it was a new one. Upon purchase, it was realised that the machine was older than 1 year as it had been advertised. It was held that the buyer had the right of rejecting the machine because it did not match the description that was given on it. Giving advice in this circumstance needs a lot of considerations to ensure that the advice given has enough grounds for legal argument. The first aspect of guidance that will be considered would thus be on whether or not the wallpaper comes under supply of goods and services act 1982. This is important to establish because the supply of goods and services acts is made up of two major components, all of which applies in this case. The part 1 of the supply of goods and services act 1982, talks about supply of good. Under the part 1, the most important point to establish to the client is that it is only until the time of delivery that goods remain at the risk of the seller. Once they are delivered, the risk comes to the consumer12. The only instance under which the consumer has a statutory right is when the goods or services do not conform to the contract prior to the time of delivery. However, part 2 of the supply of goods and services act 1982 caters for supply of services, under s. 13 of which deals with poor workmanship. In relation to the case where it was established that the wallpaper was not defective at the time of supply but that the preparation instructions had not been followed by Ben at the time of fixing it, the implied term of reasonable care and skill ought to be invoked. There are four remedies that can be suggested in relation to the supply of goods and services Act 1982 and in accordance with the ruling on Bolam v Friern Barnet. Under the circumstance where the original wallpaper is not defective in itself, refit will be advised to Kingsley as a remedy against Ben. This is because a refit will offer an opportunity for the damaged wallpaper to be replaced. But if Kingsley feels he has lost confidence in the ability of Ben, then someone else will have to do the work and the builder, who in this case is Ben, will have to be made to pay for the additional cost. THE PEDIGREE DOG The pedigree dog scenario is a typical scenario that falls under two broad major binding legislations namely Consumer Protection Act, 1987 and S.13 of Sale of Goods Acts, 1979, under which Sale by Description is placed. With reference to consumer contract also, it will be advised that the wording in the advert, which influenced Kingsley to purchase the pedigree dog acts as a contract.13 In effect, as seen in Beale v Taylor (1967), product liability and consumer safety, all apply in the given circumstance of the purchase of the said pedigree dog. Liability is said to have been incurred when the benefits of purchasing a product ends up not being met but becomes disadvantageous to the buyer and this is exactly what was witnessed14. As far as product liability is concerned, it would be noted that unlike the assumed circumstance of purchasing a friendly family pet, the dog that was purchased has rather ended up becoming a liability to Kingsley and his family. In terms of consumer safety also, it will be realised that consumer safety is said to be breached if after the purchase of a product, the product brings about an injury or harm to its user15. Since the dog that was purchase has started becoming a threat to the safety of Mark instead of becoming a friend, it could also be said that consumer safety legislations apply in this case. On the issue of sale by description, it would be noted that the dog was purchase as a result of an advertisement, which clearly spelt out some descriptions that makes Kingsley opt for it. This description also makes the case a typical case of sale by description, which is covered under S.13 of Sale of Goods Act, 1979. By applying s.13 of Sale of Gods Act, 1979, it will be noted that breach of s. 13 involves criminal law when placed under Consumer Protection from Unfair Trading Regulations 2008 even though Sale of Goods Act is typically a civil law16. In the circumstance therefore, r. 5 of Consumer Protection from Unfair Trading Regulations 2008 makes the description of the dog as pedigree an offence. Under the broad auspices of Sale of Goods Act however, only damages may be argued as a remedy. As per the definition of liability given, it would be noted that all products that serve undeserving use other than reasons for which they are purchased are said to have brought about liabilities and this is exactly what the fact that the dog is making friends and loved ones refuse to come to Kingsley’s house mean. This argument notwithstanding, it is said that the Consumer Protection Act, 1987 excludes sales that are not business sales17. This means that private sales such as the one that Kingsley made will not qualify for provisions of product liability. In terms of safety of consumer also, there is evidence to the effect that unlike what a peaceful and friendly dog should render to its owner, the dog in question has become aggressive and snappy towards little Mark, causing some levels of emotional harm. Finally, sale by description has totally been breached as the dog has been identified to be a crossbreed and not pedigree as it was advertised. Even more, the dog is not as friendly as advertised and this is a serious ground for Kingsley to seek legal redress. Based on Priest v. Last, 1903, which touched on s.14 of Sales by Description with goods describing themselves, the seller may plead against any breaches. This is because by self description, dogs are potentially violent. However, based on s. 14(2) of Trade Description Act and the case law involving Grant and the shop, where the sale of a dangerous product resulted in damages, it would be remedied that damages be levelled against the sellers of the dog for being dishonest in their trade and also for selling a dangerous product to Kingsley and his family. REFERENCE PAGE CASE LAWS Grant v Australian Knitting Mills (1936) AC 85 Beale v Taylor (1967) 3 ALL ER 253 Abouzaid v. Mothercare (UK) Ltd., [2001] All ER 482. Donoghue v. Stevenson [1932] All ER Rep 1; [1932] AC 562 St. Albans City and District Council v International Computers Ltd [1996] 4ALL ER 481, CA Rowland v Divall [1923] 2 KB 500 Varley v. Whipp, 1900 All 243 Priest v Last (1903)2K.B.148 UK LEGISLATIONS AND LAWS The General Product Safety Regulations (GPSR) 2005 Consumer Protection Act, 1987 Supply of Goods and Services Act 1982 Unfair Contract Terms Act, 1977 Trade Description Act Consumer Protection from Unfair Trading Regulations 2008 CITED WORKS Atiyah et al, The Sale of Goods Act, 12th Ed. (Longman Pearson Education, 2010). Devanny, J. and Kenny, M, European Consumer Protection: Theory and Practice, (Cambridge University Press, 2012) Eide, A. et al (eds.) Economic, Social and Cultural Rights: A Textbook ((Martinus Nijhoff, Doredrecht/London, 1995). Furmston Y & Chuah D, Commercial Law, 2nd Ed, (Pearson, 2013) Furmston, M. And Chuah, J. Commercial and Consumer Law. 2nd Ed. (Longman Pearson, 2010). Gray, C. Judicial Remedies in International Law (Clarendon Paperbacks, Oxford, 1990). Kidner, R. “The Unfair Contract Terms Act 1977 – Who deals as consumer?” 38 Northern Ireland Legal Quarterly 1987:46 Kreijen, G. (ed.) State Sovereignty and International Governance (Oxford University Press, Oxford, 2004). MacDonald, E. “In the course of a business – a fresh examination” Journal of Current Legal Issues, 1999: 54 O’Reilly, J. A Consumers Guide to Food Regulations and Safety, (OUP, 2010) Pigot M. S, 2009. Analyses in Contract & Sale of Goods: Implied Terms [Online] http://insitelawmagazine.com/analysisimpliedterms1.htm [May 21, 2013] Rose F., Blackstone’s Statutes on Commercial and Consumer Law, 2013-14, 22nd Ed., OUP Ryder R, Griffiths E and Singh T, Commercial Law: Principles and Policy, (Cambridge University Press, 2012) Saggerson, A. Package Holiday Law: Cases and Materials, (Tarquin Press, 2008) The National Achieves. 2013. Sale of Goods Act 1979. [Online] http://www.legislation.gov.uk/ukpga/1979/54 [May 21, 2013] Woodroffe and Lowe, Consumer Law and Practice, 8th Ed. (Sweet & Maxwell, 2010). Read More