Advising Samantha and Adam against A1 - Assignment Example

Advising Samantha and Adam against A1 Advising Samantha and Adam against A1 (a) Advice whether Adam has any remedies in contractlaw under the Sale of Goods Act Adam has a range of remedies under the Sales of Goods Act such as refund and compensation. A1 has breached the contract under the Sales of Goods Act Section 15(B2) and such a breach is deemed as the material breach. Under the Sale of Goods Act, all goods must be as described, of satisfactory quality and fit for purpose and thus a retailer is deemed to have breached the contract and the buyer have a claim for compensation as outlined in section 14 of Sale of Goods Act. Examination of the brief reveals that the sale was made by description. Under Section 13 (1), in cases where the goods are sold by description, the implied term is that such products must correspond with the description. For this reason, Adam only needs to reject the goods within a reasonable time (within six months usually) and demand for a replacement, refund or compensation. Under Sales of Goods Act Section 14 (2A), the goods must be satisfactory quality if they meet the standard that any reasonable person would favor as satisfactory, in view of any description of the goods and other pertinent conditions (Carlan, Nored & Downey, 2011). The only challenge Adam faces in this suit is the exclusion is to ask the Court to determine the validity of the Exclusion Clause. However, the analysis of the presented brief points towards the material breach since the attention of Adam was not brought to the small printed exclusion clause before the sale was finished. In addition, the adverts were misleading as the wrong goods description of the goods were used to persuade Adam by A1 making him purchase unasked for goods. Besides, some buyer’s obligations are firmly attached to the seller of the products that cannot be waived by the Court with sale of drugs being listed. For this reason, Adam has a right to claim for the refund of his money under the sales of goods Act. (b) Advice whether Samantha would be able to sue Adam for breach of contract? In this case, the first step is to determine whether Adam had the capacity to sell as outlined in Section two the Sales of Goods Act (1979). Under the Sales of Goods Act Section 21(1 and 2), Samantha acquires no better title to the goods than the seller had lest the possessor of the products is by her conduct prohibited from repudiating the seller’s authority to retail. Adam acted as a private seller and therefore such statutory rights that Samantha could rely on when the goods were bought from the seller (be of satisfactory quality, be fit for purpose and match the description given by the vendor) may be limited (Miller & Jentz, 2008). However, the first question is that the vendor must have the right to sell the goods implying that Adam must own the products or have been provided with the permission to sell such products. Examination of the brief points out to the fact that Adam had no right (permission) to sell the goods to Samantha and therefore the requirement that product match any description given upholds and Samantha has a right to claim a refund from Adam. However, the right of the products to be fit for the purpose and of satisfactory quality cease to apply for Samantha and hence she cannot claim the refund based on the two requirement. Samantha only has a chance to sue Adam based on the fact that Adam had no right (permission) to sell the drugs otherwise might lose the suit if grounded on the waved provisions (satisfactory quality and fit for purpose). It becomes hard to sue private sellers as they are not required by the law to provide contact details and receipts making it hard to prove whatever the private seller has claimed unless Samantha have a witness or an item in writing. For Samantha to succeed, she might be required to produce a complaint made by the seller when she was buying such as the object works. (c) Discuss the validity of the exclusion clause and whether A1 can protect themselves against a claim by Adam and Samantha I determining the validity of the exclusion clause, the Courts attention is drawn to whether; the exclusion is properly included in the signed contract, whether there was a reasonable notice provided in regards to the exclusion clause before the terms of the agreement were freely consented to by the parties, whether the parties had prior dealings that were continuous in nature and whether the clause are not contrary to the law (Harlow, 2005). To be properly included in the contract implies that the clause cannot be appended afterward the contract has been made. It effective where there is a signed or unsigned contract (Macleod, 2002). In this case, there was no sign contract and therefore it was required that there be printed documents or signs posted outlines terms such clauses can be incorporated into the contract when brought to the attention of Adam before the contact is made (Great Britain & Great Britain 2012). An examination of the transaction uncovers that Adam attention was not brought to the exclusion clause at the point of contact even if it was legal clause, Adam may use improper inclusion to be compensated for the faulty good. On the other hand, the Courts will have to ascertain the legality of the exclusion clause if it was properly included in the contract. Some principle consumer obligations are attached to the trader that are implied by the statute into the consumer contracts and can never be excluded (Cooker, 2005). In determining the legality of the exclusion clause, Courts are influenced by whether the products is unsatisfactory, and the consumer has been misled by the trader and whether the trader acted unreasonably. Examination of the brief points towards unreasonable actions of the trader, the trader misled Adam and the most important is that the goods were unsatisfactory (Goldring 1998). In my view, the said exclusion clause will be dismissed by the Courts as it lacks every bit of a legal clause as well as proper inclusion into the contract and hence invalid in this context. (d) Advice Samantha as to how she can succeed in claiming against A1 for negligence under the Law of Tort In order to advice Samantha, her attention must be drawn to what constitutes negligence. Negligence occurs if someone (Samantha) suffers damage, and the person who causes such injury (A1) does so through carelessness. However, Negligence is never a measly careless, and there must be an obligation on the facts and not a meager notional responsibility (Dongen, 2014). To this end, Samantha’s courtesy is drawn on three principle features that have to be demonstrated to establish negligence on the part of A1 (White, 2005). The damage caused that can be either injury or damage to property must never be too far-flung a result of the breach (Cane, 1997). The duty must be breached by the defendant (A1), and that defendant must owe a duty of care to the plaintiff (Samantha). The purpose of the Tort Law is to take back the plaintiff to her initial status. In this case, Samantha lost her job besides being hospitalized for two months that also attracted Hospital bills. In order to be compensated, her status must be restored (ex-ante). Analysis of the case of negligence in this context points towards a justification that indeed A1 acted negligently. Indeed, A1 owes a duty of care to Samantha and that the A1 breached this duty of care to Samantha. On the other hand, Samantha’s damages were as a direct consequence to A1 carelessness (Busuioc, 2013). A1 intentionally sold fake products (drugs) based on the misleading and adversarial advertisement. Despite the fact that, Samantha never bought such goods directly from A1, this does not waiver A1’s duty of care to Samantha. The damages could have been avoided if A1 had intentionally never carelessly acted based negligence. The Wagon Mound (1961) and London Borough of Sutton (2000) ruled cases of negligence presents a typical example for the, ‘but for’ test in determining the causation and remoteness of damage. Accordingly, Samantha needs to file a suit and mention A1 on negligence (Best & Barnes, 2007). Also, Samantha should name Adam as her witness in this suit as Adam stands beneficial in helping the judges to determine the remoteness and causation of damages faced by Samantha (Elliott & Quinn, 2007). In addition, Samantha only needs to prove that her sufferings were direct as consequent of A1’s carelessness (Ward, 2010). The Court will determine the levels of compensation that would revamp her status before the negligence acts of the defendant (Horsey & Rackley 2013). For this reason, Samantha needs to contact her attorney and file the case against A1 that she will argue that she lost her job as well as suffered emotionally while in the hospital besides the hospital bill payable (Steele, 2014). In so doing, the court will determine the remoteness and causation of the damages she suffered and suggest an amount to be compensated (Buckley & Okrent, 2004). In addition, the Court will determine whether, A1 had a duty of care and that it negligently acted to warrant a breach of such duty of care to Samantha. Reference Best, A., & Barnes, D. W. (2007). Basic tort law: Cases, statutes, and problems. Austin: Wolters Kluwer Law & Business. Buckley, W. R., & Okrent, C. J. (2004). Torts and personal injury law. Clifton Park, NY: Thomson/Delmar Learning. Busuioc, M. (2013). European Agencies: Law and Practices of Accountability. Oxford: OUP Oxford. Cane, P. (1997). The anatomy of tort law. Oxford: Hart Publ. Carlan, P. E., Nored, L. S., & Downey, R. A. (2011). An introduction to criminal law. Sudbury, Mass: Jones and Bartlett Publishers. Cooker, C. . (2005). Accountability, investigation and due process in international organizations. Leiden [u.a.: Martinus Nijhoff. Dongen, E. G. D. (2014). Contributory negligence: A historical and comparative study. Elliott, C., & Quinn, F. (2007). Tort law. Harlow: Longman. Goldring, J. (1998). 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