The Sale of Goods Act 1979 - Case Study Example

Dealing first with the problem regarding the DVD player the starting point is to examine ways in which Simon might be able to reject the player. The relevant Act that might assist in this matter is the Sale of Goods Act 1979. Under s14 of this Act there is an implied condition that the goods sold shall be of a satisfactory quality and fit for a particular purpose1. This implied condition cannot be invalidated by an exclusion clause in a contract and the client is entitled to expect the item to be fit for the purpose intended2 and of satisfactory quality. In this particular case the goods are not of an unsatisfactory quality but the DVD is not fit for the intended purpose. The implied term as to quality3 and fitness for purpose4 apply only where the seller sells in the course of a business. The seller is not responsible for any defects that are brought to the buyer’s attention. The Supply of Goods (Implied Terms) Act 1973 introduced a definition of merchantable quality which was added to s14(6) of the Sale of Goods Act 1979 which states (6) Goods of any kind are of merchantable quality above if they are as fit for the purpose or purposes for which goods of that kind are commonly bought as it is reasonable to expect having regard to any description applied o them, the price and all the other relevant circumstances. In advising Simon as to his legal position and possible remedies it is necessary to decide whether the term fit for the purpose can apply to a DVD failing to play discs that are not pre-recorded. If a buyer wishes to be sure that the goods will be suitable for a particular purpose which is not a purpose for which such goods are commonly supplied the buyer must make the purpose known to the seller5 and rely on the seller’s judgment. If the seller indicates to the buyer that the goods will be suitable for the express purpose then the seller will be liable if the product fails to perform in the expected manner6. As Simon specifically stated the purpose that he wanted the DVD for it is likely that Simon could succeed in a claim against the shop. In bringing his action he could rely on the case of Watford Electronics Ltd v Sanderson CFL Ltd7. In this case the court held that there was an implication that the goods supplied would fit for the intended purpose and that this should extend to the software as well as the hardware. As the computer in this case would not operate the software it was deemed that the computer was not fit for the intended purpose. When examining the situation with regard to the holiday it is necessary to examine the conditions under which Simon might be able to bring an action. In order to establish a claim against the company it is essential to analyse the promises made by the agent in respect of the holiday. Under the Package Travel, Package Holidays and Package Tours Regulations 1992 guidelines are laid down as to the description of the holiday as described to the potential client and also gives explicit instructions concerning the accuracy of information that is supplied in the brochures. This would assist Simon in his claim as he can use the regulation to argue that the brochure wrongly described the accommodation8 and the facilities. Within the contract there are express terms9 and implied terms10. The accommodation he was offered and the facilities were express terms. He was entitled therefore to expect that the description given would be accurate and up to the standard as suggested by the brochure. In Mawdsley v Cosmosair PLC 2002 the court held that the implied term in the contract between the travel agent and the plaintiff was that the hotel was suitable for children which in itself implied that access to the restaurant should have been by way of a lift. Simon could argue that there has been a misrepresentation11 on the part of the travel agent as it was as a direct result of the inducement12 that the holiday would satisfy the requirements he specified that he booked his holiday through the agent. Section 2 (1) of the Misrepresentation Act 1967 states that Where a person has entered into a contract after a misrepresentation has been made to him by another party thereto and as a result thereof he has suffered loss, then if the person making the representation would be liable to damages in respect thereof had the misrepresentation been made fraudulently, that person shall be so liable notwithstanding that the misrepresentation was not made fraudulently, unless he proves that he had reasonable ground to believe and did believe up to the time the contract was made that the facts represented were true. In this particular scenario it is likely that if the travel agent wants to avoid a claim against them for damages they are likely to use the assertion that at the time of the making of the contract they ‘had reasonable ground to believe and did believe13’ that the information they had supplied to Simon was accurate. If it can be proved that the agent knew that the representations they were making were untrue then Simon could pursue an action for fraudulent misrepresentation14. This would be difficult to prove but might occur if the travel agent was in anyway connected to the hotel and received some kind of financial remuneration for recommending that particular hotel. They are more likely to be able to prove negligent misrepresentation15, but for this they would have to show that the travel agent did not believe that the hotel was of the standard described by him. As we do not know what the exact terms and conditions of the contract between the parties contained there is a possibility that both respondents could avoid liability if the contract contained any exclusion clauses16. An example of this would be that if within the brochure or the signed invoice it stated that the accommodation offered was subject to change, if for any reason it became unviable to use the proffered hotel. They would have to show that the hotel in which Simon stayed was not the one advertised within the brochure but one that purported to be of a similar specification to that advertised. By doing this they could absolve themselves of liability as they could argue that to the best of their knowledge the alternative hotel was of similar quality17. Simon would need to show the court what misrepresentations they are claiming exist in this situation. In respect of the accommodation offered Simon had been told that the hotel was a luxury accommodation with lots of people and entertainment. Instead he was given a small cramped chalet, with no room service and only one other guest who was a sheep18. When dealing with damages for the breach of contract for the spoilt holiday a good authority for this would be Jarvis V Swan Tours Ltd [1973]. In this case the plaintiff booked his annual fortnight’s holiday as a Christmas skiing vacation. The cost of the holiday was £63.45. The brochure from which the plaintiff booked the holiday described it as a ‘House party’ and stated that the hotel had its own ‘Alphutte Bar’ which would be open several evenings a week. It also stated that a welcome party, afternoon tea and cakes, a fondue party and yodeller evening were included in the price. On the first week of his stay there were only 13 people in the house and on the second week he was the only resident. The skiing was not as described in the brochure and neither was the cakes or the yodeller who was just a man from the village that came in one evening and sang a few songs. The bar was only open on one evening of his stay. The plaintiff claimed for damages and it was held that he was entitled to be compensated for his disappointment and distress at the loss of his holiday and the loss of facilities which he had been promised in the brochure. Initially the judge did not make an award for loss of enjoyment and was awarded half the cost of his holiday as compensation, but this was rectified at the Court of Appeal and his award was increased to £125. On the final issue regarding the fees owing from the first year it is usually a general term of the contract between the university and the student that they can withhold services if fees remain outstanding. This can include not allowing a student to register for subsequent years if fees have not been paid. It is likely in this case that the university will operate such a policy which would mean that Simon would not be entitled to enrol until he has paid the fees. Bibliography Barbara Harvey & John Marston, Tort, 3rd Ed, 1998, Financial Times Pitman Publishing Beale, HD, Bishop, WD, Furmston, MP, Contract Cases and Materials, 3rd Ed, 1995, Butterworths Civil Procedure Volume 2, The White Book Service, 2002, Sweet and Maxwell F.D. Rose, Statutes on Contract, Tort & Restitution, 10th Ed, 2000, Blackstones G.H. Treitel, The Law of Contract, 10th Ed, 1999, Sweet & Maxwell Jill Poole, Casebook on Contract Law, 6th Ed, 2003, Oxford University Press Tony Weir, A Casebook on Tort, 8th Ed, 1996, Sweet & Maxwell Table of Cases Balmoral Group Ltd v Borealis (UK) Ltd [2006] EWHC 1900 [2006] 2 Lloyds Rep. 629 [2006] 2 C.L.C. 220 Barber v NSW Bank Ltd [1996] 1 WLR 641 Eyre v Measday [1986] 1 All ER 488 Gardner v Coutts & Co [1968] 1 WLR 173 Howard Marine and Dredging Co Ltd v A Ogden & Sons (Excavations) Ltd [1978] Jackson v Horizon Holidays Ltd [1975] 1 WLR 1468 Jarvis v Swan Tours Ltd [1973] QB 233 Mawdsley v Cosmosair PLC 2002 EWCA Civ 587 Pan Atlantic Co Ltd v Pine Top Insurance Co Ltd [1994] 3 All ER 581. QB 574 CA Slater v Finning Ltd [1997] A.C. 473 [1996] 3 W.L.R. 191 [1996] 3 All E.R. 398 [1996] 2 Lloyds Rep. 353 1997 S.C. (H.L.) 8 1996 S.L.T. 912 1996 S.C.L.R. 863 [1996] C.L.C. 1236 (1996) 15 Tr. L.R. 458 (1996) 146 N.L.J. 1023 (1996) 140 S.J.L.B. 185 Times, July 10, 1996 Smith New Court Securities Ltd v Scrimgeour Vickers (Asset Management) Ltd St Albans City and District Council v International Computers Ltd [1996] 4 All E.R. 481 [1997-98] Info. T.L.R. 58 [1997] F.S.R. 251 (1996) 15 Tr. L.R. 444 [1998] Masons C.L.R. Rep. 98 (1997) 20(2) I.P.D. 20020 Times, August 14, 1996 Thomas Witter Ltd v TBP Industries Ltd [1996] 2 All ER 573 Walker v Boyle [1982] 1 WLR 495 Watford Electronics Ltd v Sanderson CFL Ltd[2000] 2 All E.R. (Comm) 984 Table of Statutes Misrepresentation Act 1967 s2 (1) Sale of Goods Act 1979 The Package Travel, Package Holidays and Package Tour Regulations 1992 The Supply of Goods (Implied Terms) Act 1973 Read More