Consumer Protection - Assignment Example

In order to advise Doris with regard to her rights it will be necessary to firstly consider the Sale of Goods Act 1979 (SGA) and ascertain necessary to ascertain whether there was an enforceable contract for sale as required by section 1(1) of the SGA. The law of contract stipulates three fundamental requirements for the formation of a legally enforceable contract; namely; offer, acceptance and consideration1 (it is important to note that the contracting parties must have legal capacity, which is presumed not to be an issue in this case). Lord Wilberforce asserted rules for contract formation in the case of New Zealand Shipping Co Limited v A M Satterhwaite, the Eurymedon2 thus: “English law having committed itself to a rather technical……. Doctrine of contract, in application takes a practical approach……… Into the market slots of offer, acceptance and consideration3”. The law of contract formation distinguishes between an offer and an invitation to treat, which is not an offer but an indication of willingness to negotiate a contract4. For example, in the case of Gibson v Manchester City Council,5 the words “may be prepared to sell” constituted an invitation to treat and not a distinct offer. In the current scenario, Doris went to Baxter Beds and bought the bed after examination and there is no issue that this is an enforceable consumer contract for the sale of goods The bed was advertised as being made of “solid brass” however transpired to have many problems including scratches on the bed-head and a wobbly leg. Furthermore, the facts indicate the brass bed-head of the bed was one of the motivations behind Doris’s purchase of the bed and as such, went to “the root of the contract,”6thereby constituting a condition7. Accordingly, the description of the bed was clearly misrepresented and (in addition to false representation) it is arguable that this misrepresentation gives Doris the right to repudiate the contract and return the side board on grounds that the misrepresentation constituted a breach of condition8. The burden would be on Doris to prove this9. Additionally, Baxter Beds may be strictly liable for the offence of providing false trading descriptions under the Trade Description Act 1968. Section 1(1) of the Act provides that any person who “in the course of a trade or business: a) applied a false trade description to any good; or b supplies or offers to supply any goods to which a false description is applied, shall…..be guilty of an offence”. Liability under the Act is strict. Additionally, the SGA implies terms into sale of goods contracts which can be asserted by consumers10. However as asserted by section 14(2) of the SGA, the implied term provisions only apply to contracts where the “seller sells goods in the course of a business,” and section 12(1) of the SGA provides that there is an “implied term on the part of the seller that in the case of a sale he has a right to sell the goods, and in the case of an agreement to sell he will have such right at the time when the property is to pass”, which is not in contention with regard to Doris’ purchase from Baxter Beds. Section 13 of the SGA is of particular importance to Doris’s position, which asserts that “where there is a contract for the sale of goods by description, there is an implied term that the goods will correspond with that description”. Furthermore, section 13(3) provides that “a sale of goods is not prevented from being a sale by description by reason only that, being exposed for sale or hire, they are selected by the buyer”. In order to be a sale by description, the description must be an “identifying” description11. In context of Doris’s purchase, her viewing the bed prior to purchase will not prevent it being a “sale by description”. Moreover, the bed was advertised as being of “solid brass”, which would satisfy the “identifying description” requirement. If we consider the case law, in Beale v Taylor12, an advertisement had read “Herald, convertible white 1961”. However, it transpired that two “half cars” were actually joined together, including the back half of a 1961 model and the front of an older model. It was held that as the vehicle failed to comply with the express description, it was a breach of the equivalent section 13 provision of the SGA. With regard to Doris’ purchase, the product was clearly advertised as being of solid brass and therefore the problems with the bed arguably fail to comply with the express description due to the scratches and the wobbly leg. Furthermore, the provisions of the Sale and Supply of Goods to Consumer Regulations 2002 (the Regulations) provide further guidance to consumer rights under the SGA. With regard to breach of section 13, Regulation 5 of the Regulations grants buyers additional remedies in consumer cases and provides that if the goods do not conform to the contract of sale at the time of delivery, then the “Buyer has the right to require replacement or repair of the goods or rescind the contract regarding the goods in question”. Doris’ rights under section 13 are potentially strengthened by virtue of section 14 of the SGA, which provides that there is an implied term that goods supplied under an SGA contract are of satisfactory quality. Section 14(2A) elucidates and provides that “goods are of satisfactory quality if they meet the standard that a reasonable person would regard as satisfactory, taking account of any description of the goods, the price and all other circumstances. However, section 14(2C) of the SGA expressly provides that the implied term regarding quality does not extend to any matter making goods unsatisfactory that was brought to the buyer’s attention before the contract was made. Furthermore, the implied obligations under section 14 will be negated where the buyer examines the goods before the contract is made and the defects were such “that the examination ought to reveal”. In the current scenario, Doris went to the shop in person and tried out the bed, which may prejudice her right to a refund or replacement. However, Doris has terrible eyesight and therefore it may be reasonable that she wouldn’t have realised the problems with the bed in the shop. Alternatively, the bed she sat on may have been the shop model and not the same bed that was delivered to her. With regard to the practical application of section 14(2C), Regulation 3 of the Regulations asserts that the relevant circumstances when considering whether the defects should have been discovered upon examination include “any public statements on the specific characteristics of the goods made about them by the seller, the producer or his representative, particularly in advertising or selling”. With regard to Doris’ position, not only did the bed fail to comply with the advertised description, it was scratched and wobbly. The central issue of contention regarding Doris’ claim which is likely to be cited by the seller is the fact that she looked over the item prior to purchase. In the case of Beal v Taylor13, although the plaintiff had inspected the car prior to purchase, it was only until after purchase that he realised it was an earlier model. Nevertheless, the Court of Appeal held in the plaintiff’s favour and determined that he was entitled to damages for breach as he had relied on the description in the advertisement. The Court of Appeal also stated that as the plaintiff was a consumer and not an expert in cars and could not be expected to have known that the car was not the model advertised. If we apply this by analogy to Doris’ position, while she examined the beds, she was not an expert and had bad eyesight. Additionally we are not aware whether the bed delivered to her was the same bed as the one she sat on in the shop. Accordingly, in line with the reasoning in Beal, Doris will have a strong argument that despite her prior inspection the bed failed to comply with the implied terms of the SGA. Another issue in applying section 14 is how long the satisfactory quality and fitness of purpose is meant to last after purchase in order to bring a claim, as this is not expressly defined in the SGA. For example, in the case of Bernstein v Pamson Motors14 a new Nissan car was purchased for cash by Mr Bernstein. After three weeks of use and clocking up 140 miles, the car engine seized up on the motorway due to a drop of sealant, which had infiltrated the lubrication system on manufacture. It was held that the car was not of merchantable quality and that a consumer would not expect that the engine of a new car will cease up after 3 weeks. However, there hasn’t been a consistent approach to the length of time post purchase and ultimately it is a question of fact dependant on the circumstances. For example, with regard to “appearance”, in the case of Rogers v Parish15 the plaintiff purchased a car under conditional sale agreement. On delivery, there were defects in the engine, gearbox and bodywork and the oil seals were defective. Nevertheless, the plaintiff continued to drive the car for 6 months whilst regularly complaining, clocking up 5,500 miles. However the faults remained after the 6 month period and the issue arose as to whether the bodywork defects and the level of comfort fell below the level that should be expected in a new car. The Court of Appeal asserted that appearance defects in a new car could, (depending on the standard expected) render a car, to be of unsatisfactory quality and in this case the period of six months did not negate a claim that the quality of the car supplied was in breach of section 14 for being of unsatisfactory quality. With regard to Doris’ purchase, the defects were discovered a day after delivery by the neighbour and the cracks clearly fell below the standard of quality that she was entitled to expect and as such, points to a breach of section 14. Alternatively, Doris may have a direct claim against the manufacturer for product liability under the Consumer Protection Act 1987 on grounds of the bed being a “defective product”. Additionally, we are not told how Doris paid for the goods and if she paid by credit card as the value was in excess of £100, the credit card company will also owe Doris a duty of care under section 75 of the Consumer Credit Act 1974 on the equal liability principle. The equal liability principle means that a credit company will have the same responsibility towards Doris for the goods being of satisfactory quality under the SGA and Doris can further claim directly against the credit card company for fault or misrepresented goods. Additionally, Doris will have the right to claim against the credit card company for non-delivery of the bed sheets under the equal liability principle. BIBLIOGRAPHY P. S Atiyah (2005). Sale of Goods.11th Edition Longman. Blackstones Statutes on Contract, Tort and Restitution Chitty on Contracts (2007). 29th Edition Sweet & Maxwell. John Hodgson & John Lewthwaite, “Tort Law” (2007). 2nd Edition, Oxford University Press. John Macleod (2006). Consumer Sales Law. 2nd Edition Routledge Cavendish. Linda Mulcahy & John Tillotson (2004). Contract Law in Perspective. Routledge Cavendish. Jill Poole (2006). Contract law. 8th Edition Oxford University Press. G H. Treitel (2007). The Law of Contract. 12th Revised Edition Sweet & Maxwell. Legislation Trade Descriptions Act 1968 Consumer Credit Act 1974 Sale of Goods Act 1979 Consumer Protection Act 1987 Sale and Supply of Goods to Consumers Regulations 2002 Read More