Legal Issues and Actionable Steps - Winston Graham - Case Study Example

Student’s Name Your Instructor’s name The Course Date Introduction The Act on the sale of goods of 1979 and its variations defines the obligations and performance of the seller and buyer in relation to a transaction that involved the exchange of goods with a price and in this case the price is defined as money. The Act in general terms applies to the sale of goods other than real property and where applicable extends to barter trade. The Act does not play out in solitary but is subject to the Act protecting consumers of 1978. This report in view of existing circumstances explores legal issues surrounding litigation in relation to infringement of rights as provided by the Act and the best course of action to be undertaken. The report moves on to unearth the express and implied terms of the Act clearly examining the difference between consumer and non-consumer sales. Further, the report explains the specific court involved in handling this matter that relates to the breach of the Sales and Goods Act and the procedures involved in relation Winston Graham, a partner in an antiques firm and Alan Daly, a motor vehicle proprietor. Legal Issues and Actionable Steps Winston Graham a partner in an antiques firm and in agreement with his counterpart purchase a truck after an incident that wrote off an existing one, thus threating the survival of their business. He personally visits Daly Car Sales Ltd and engages Alan Daly the proprietor where he expresses his need and upon reaching a settlement, he buys a truck for the sole purpose of maintaining business operations. Winston Graham acting for the antiques firm explains carefully, what he exactly requires of the truck in terms of make, volumetric size and engine carrying capacity after which Alan Daly affirmatively responds that he can provide for the same and that the specific truck is available for sale. A transaction takes place upon signing of documents and payment of a price. Winston Graham and his partner use the truck for business operations but it fails to reach expectations as initially anticipated. Major concern is to establish if a contract actually exists and has it been breached. Winston Graham walks into the business premises of Alan Daly who by virtue of being a seller then this extends a voluntary invitation. They negotiate for an existing good and a price is paid after of signing documents. Section 2(1) of the Sale of Goods Act as mentioned by Graham Fuller in his book, Purchasing Contract: A Practical Guide provides that, “a contractual agreement does exist when a seller transfers goods to a buyer for a price” (38). In law therefore, a contract does exist between Winston and company and Alan Daly the proprietor. There is absolutely no dispute if a contract does exist as Alan Daly is in legal business and by so doing voluntarily invites Winston a buyer. It is after discussions that a transaction takes place. Winston signed documents and paid a price. All elements of a contractual agreement have been legally met and adhered to (Schaffer, Agusti and Earle 116). Chapter 4 of the Act on the sale of goods provides that, “goods must conform to the agreement specified…” as agreed by both parties. This is in terms of quality and description. Winston provided that he required a track that has engine capacity to withstand up to one ton of luggage and a volumetric size of 250 cubic feet. Alan Daly did not provide for this as specified thus necessitating a breach of contract. Winston Graham and his partner are thus entitled for damages. Any form of contractual agreement in the sale of goods has terms that form a rider and are thus binding and take effect in law and common practice (Barker 129). Most of the times we would expect terms in a contract to be explicitly conveyed but this is not usually the case. In all forms of contracts there are express and implied terms which should never be ignored. Express terms are the conditions clearly stated in the contract papers and agreed by both parties (Chappel 70). In this case, it is stated that the warranty of the truck as to the quality or fitness for specific purpose is not part of the sale agreement. This is expressly provided in written form and is thus an express term in the contract. Some terms need not to be mentioned in the contractual agreement but are included in the contract for it to make a sense in business transaction. These are the implied terms of the contract (Barker 129). The implied terms of a contract take two forms, as those implied by the court of law and those implied by the statute of 1979 of the sale of goods. Section 12 of the act in relation to the existing contract between Winston and Daly implies that the seller of the good is legally in business and that this business is his day to day activity. Alan Daly is the proprietor of a company that is in legal existence and thus, the statute does imply that he is a legal seller of the good in question. Section 14 of the same statute implies that the goods must be in good quality and must be reasonably accepted so. If the buyer informs the seller the goods are for a specific use and purpose there is an implied term that the goods must meet the standards to perform the task at hand. In the negotiations, Winston clearly states the purpose for which he intends to purchase the truck for and Alan affirmatively responds that he can provide such kind of a truck. It therefore implied that the truck is in good condition for the purpose of carrying goods up to the capacity specified by the buyer as provided for in the contractual agreement. Some terms are implied by the court of law in relation to contractual agreements. As a matter of general public association and usage, the court assumes how parties are to relate and associate while in contractual agreement. Winston and his partner are in daily use of the truck in good faith and that their business survival is dependent on the availability of the truck. The court implies that Alan should be aware of this even as he mentions that he would specifically need to check the truck within a specific time frame and as mentioned within one week. Winston could not adhere to this as his business is duly dependent on the physical availability of the truck in question for survival. Verbal Contractual Agreements and Usability in Law Contractual agreements are legally binding and the procedures and forms of the agreement are useful to be aware of. Business transactions in most cases will involve buying and selling and contrary to popular belief, a contract on the sale of goods does not entirely need to be expressed in writing unless in a unique situation. All facts need not be expressed in writing. A verbal agreement is admissible in law and disputes arising can be settled in court using available facts and evidence (Brown and Clinton 50). It is not a requirement that all facts in agreements be expressed in writing for a contract to be operational. In the case of disputes arising it is normally a daunting task to prove such verbal agreements and the circumstances surrounding the contract have to be evaluated (Morris 259). In the existing circumstances Winston entered into both a written and verbal agreement and his business partner can prove so using existing written documents. In the Act on the sale of goods section 4(1), a contract is achieved by either in way of writing or orally and by way of conduct between the parties involved (Fuller 38). Winston and Alan Daly engage each other orally and in writing and by so doing a legal contract is thus created. Any form of verbal discourse is totally admissible in a contract agreement. Condition of Good in Question The condition of the goods and their fitness to perform a specific purpose is a matter of importance in any contractual agreement. Winston Graham, while inspecting the truck, was clearly informed by Alan that the truck falls within his specifications. He noticed some oil leakage and curiously inquired on the nature of the leakage. Winston Graham is not involved in sale and repair of motor vehicles and he rightly relied on the expertise of Alan for an explanation. He had no reason not to believe him at all. Section 14(3) of the Act on the sale of goods provides that “when the buyer expressly or impliedly makes known the use of the good in question to the seller, it then must conform to the purpose stated”. This condition is implied, if the buyer relies on the seller’s expertise, something that Winston relied upon on noticing an oil leak. A report later indicated that the damage on the truck is attributed to excessive oil loss (Fuller 64). Exclusion Clause in Contractual Agreement As it is evident in the contractual paper signed by Winston and Alan, an exclusion clause does exist and its implication is a matter of law. The Act on the sale of goods is subject to the Act on unfair contract terms of 1977. This Act came into effect to further protect the consumers against unfair contractual agreements. The Act brings into play the issue of consumer and non-consumer sales. A consumer sale is a sale where the buyer of the goods in question does not have an intention to further engage in reselling activities of the same goods as opposed to a non consumer sale in a contractual sale agreement (Reuvid 139). Winston and his partner in business engaged in a consumer sale with Alan Daly. Section 3 of the Unfair Terms in Contracts provides that “if one of the parties involved is a consumer of the good in question the other party cannot deem to exclude himself from liability of a breach on his part using items expressed in the contract agreement” (139). A party in a contractual agreement is bound by an exclusion clause whether or not he read the clause before signing the contractual papers. Under Law and statute as duly expressed in the Act of unfair terms in contractual agreements and taking into account the existing circumstances, the exclusion clause can be subjected to the Act itself where one of the parties is a consumer, which in this case, Winston and his partners are consumers of the truck. Under UCTA such clauses are deemed null and void especially where such a clause excludes one party from liability (Salzedo 141). Remedies A breach on contractual agreement under the Sale of Goods Act provides for remedies according to the nature of the existing circumstances. If a buyer discovers anomalies in goods purchased, action should be taken within a time frame that is reasonable. Winston and his workers while using the truck, discovered defects that were life threatening as evidenced by brake failure while working under normal conditions. They did inform Alan Daly within a week. Alan intimated to check on this matter only if the track is delivered back within a week but this was not possible as Winston and his partner were in the midst of business operations that could not be terminated within the week and shortly thereafter. What can be defined as reasonable time remains within the confines of the court for interpretation in view of existing circumstances (Mead 79). A claim on damages relates to a breach on the implied terms to the goods being fit for the purpose they were intended for (Fuller 71). Winston and his business partner are entitled to a repair of the truck or a replacement all together as the truck does not meet the requirements for carrying luggage in tonnage and volumetric capacity as clearly implied in the contractual agreement. The Act of the sale of goods as amended in 1994 provides that, when a buyer acting as a consumer finds goods to be not as specified in the descriptions and alleges this fact within six months, the burden rests in the seller to prove otherwise (94). Goods being fit for the purpose intended for includes inner freedom for unseen defects and the defective clutch could not be realized by Winston at the time of purchase. He is entitled for a replacement. Nature of Court and General litigation Procedures Various courts do exist to handle different matters relating to interpretation of the law. If a matter of law relates to business transactions and such disputes fail to be solved between the parties themselves out of court and subsequently calling for litigation, then, such matters are referred to commercial courts (Daller 174). General litigation procedures start by filling a compliant with the relevant court for action. Paper work in form of filling forms is a general procedure in use and lawyers assist in the process. In the forms, the names of both the parties involved are clearly stated and a description of the matter narrated. This information is verified and signed by the complainant under oath and a fee is payable. The facts that call for action should be clearly stated and a conclusion made by request of hearing and judgment against the defendant. In this case Winston and his partner are to sue a business entity. The owner Alan Daly is the defendant. The business entity should be sued in its names as recognized by law. The case is then filed strictly within the time limits the statutes run. After the case is filed the defendant is properly served by any means possible and given specific time schedule to respond to the charges. It is within this time that the court determines a favorable date for hearing and proceedings to determine the case (Battle 105). Works Cited Barker, Austen Richard. Implied terms in English Contract Law. Cheltenham UK: Edward Elgar Publishing, 2011. Print. Battle, W. Carl. Legal Forms For Everyone. New York: Allworth Press, 2006. Print. Brown, H. Jeremy and Clinton Marcus. Horse Business Management: Managing a Successful Yard. West Sussex: John Willey and Sons, 2010. Print. Chappel, David. The JCT Design and Build Contracts 2005. London: Willey-Blackwell, 2007.Print. Daller, F. Marton. Business Torts 2009: A Fifty States Guide. Frederick: Aspen Publishers, 2009. Print. Fuller, Graham. Purchasing Contracts: A practical Guide. London: Spiramus Press Ltd, 2010. Print. 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