Australian Consumer Legislation - Assignment Example

Name : xxxxxxxxxxx Institution : xxxxxxxxxxx Course : xxxxxxxxxxx Title : Business Law Tutor : xxxxxxxxxxx @ 2011 Answering the question The facts Tyson owns a classic Antiques stores in William Street. Tyson employs Mandela as a salesperson and store manager. Tyson sells antique armchair which I am interested in as I was shopping for my furniture. There is a sign starting ‘Please do not sit on the chair – fragile – considered sold if damaged’ of which I ignored and sat on it. Mandela assures me that the chair is suitable and that I will be able to use it for many years. Mandela was instructed to sell the chair at 3500 I managed to persuade Mandela to sell the chair at $ 1500 Tyson is delighted with the news that Mandela sold the chair, only to realize later that it was sold less the amount he had insisted upon. The chair has a market value of $4,000. Big Mac (my friend) sat of the chair and fell down, injuring his right hand. Two front legs snap off. It will cost me $ 500 to get the two front legs repaired The law The appropriate law would appear to be: Goods must be reasonably fit for the purpose of consumer. A suppler must not engage in a misleading or rather deceptive conduct- Hardley Byrne v Heller Counter offer terminates the initial form of a contract- Negligence on the part of the plaintiff- (I) Defense: volenti non fit injuria (voluntary assumption of risks). Applying law to facts Question one Section 55 of the Australian Consumer legislation (ACL) states that ‘goods must be reasonably fit for the purpose of consumer’. Tyson and his salesperson (Mandela) are obliged to sell and represent goods that they are reasonably fit to consumers. However, if the consumer makes it known to the supplier, supplier’s agent or rather the manufacturer the purpose of the good, the supplier ought to represent that good in the same manner specified by the consumer. I relied on the fact and statement made by Mandela that the chair is suitable, stating ‘It is a solid old thing. I sit on it all the time. You will be able to use it safely for many years’ and made the purchase. Therefore, Tyson is obliged to refund me all the monies I spent on fixing the chair, as illustrated in section 55 of ACL, Tyson and Mandela are obliged to sell good that is considered reasonably fit to the consumer. However, Tyson and his salesperson knowing that the chair was fragile, Mandela assures me that the good is actually fit and I would be able to use it for a long time. I relied on the information made by Mandela and went ahead to make the purchase and ‘ yes’ I can return the chair and insist upon a refund based on the same arguments, since both Mandela and Tyson had breached section 55 of ACL. Their breach is clearly evident where Mandela discloses to Tyson that he had sold that‘that fragile old armchair’ and Tyson was delighted. Meaning they were full aware that the good was not fit (Davis, 2006). Question two Section 18 of Australian Consumer legislation states that, a person in trade or commerce should not engage in a conduct that is more likely to mislead or deceive someone. It is however important to establish that Mandela intended to deceive. This is clearly evident where Mandela assures me that the chair is suitable, stating ‘It is a solid old thing. I sit on it all the time. You will be able to use it safely for many years.’ Basing on Mandela’s argument, the chair is very strong and it can last for many years to come, however, there is a sign on the wall of the shop saying ‘Please do not sit on the chair – fragile – considered sold if damaged ’, but Mandela assures me that the chair is in good shape. Tyson and Mandela are liable for deceit as illustrated in the case of Hardley Byrne v Heller, where the defendant of the firm bankers gave misleading statement about the affairs of one of the customers to the plaintiff who relied on the misstatement to his losses. It was held that the defendant was liable for the torts even though the misstatement was made honestly. Similarly, Mandela and Tyson are jointly liable for the misleading statement which I was given, since I relied on Mandela’s assurance for which I suffered losses as a result of two of the font legs breaking. Another evident that will show that Mandela actually intended to mislead me is where he tells Tyson that he has managed to sell ‘that fragile old armchair’, meaning he was fully aware that the chair was fragile and will not last for a long period of time as earlier stated. However, for this section to dully apply it is not essential to prove that someone (Mandela) has mislead me; rather it is the perception that is created in the mind of the audience regardless of the message. Therefore Mandela has breached section 18 of the Australian Consumer Legislation (ACL), and therefore he is liable for the injuries suffered In terms of loss of money and wastage of time (Governement, 2010). Question there Agency has been created between Mandela and Tyson so that Mandela acts as an agent and Tyson as the principle. This type of agency is the one created by an agreement between two parties. Tyson through his conduct or representation has made the outside world to believe that Mandela is acting on his behalf. The purchaser with full knowledge of the principles price buys the armchair from the agent at a lower price which is against the wishes of the principle. The purchaser would only be protected by the NEMO DAT NON HABET rule if he did not have any knowledge of the agents conduct. Tyson will be able to get back his armchair, because in this case, the purchaser had full knowledge that the armchair was supposed to be sold at $ 3500 yet she went ahead and purchase it. Queston four No I will not manage to sue Tyson and on the tort of negligence and therefore I cannot seek compensation. Negligence is the breach of duty or omitting to do something which a reasonable man would do or would not do and which causes injury on a person’s body or property. For me to be able to sue under the tort of negligence, I must prove the following:- The defendant owed a duty of care. The defendant breached the duty of care. I suffered legal damages as a result of Mandela’s and Tyson breach of duty. Under the occupier under the tort of negligence, in this case the occupier is Tyson as well as Mandela owes me a duty of care and to all visitors to their premises, they are to ensure that I would be reasonably safe in using the premise for the purpose which I was invited for. The occupier involves the owner of the premise (Tyson) and any other person who has control over the premise (Mandela). However Tyson will exclude his liabilities if I went and sat on the before deciding to purchase and injured myself, because he (Tyson) had given sufficient or adequate notice or rather warning on the chair. There was a sign on the wall of the shop saying ‘Please do not sit on the chair – fragile – considered sold if damaged’ (Coulson, et al., 2002). Therefore, I sat on the chair at my own risk, any injuries suffered afterwards cannot be compensated, but instead I will be the one to compensate Tyson Company for the damages suffered as a result of my negligence. Tyson will defend himself based on the sign given, that sign acts as a warning and on volenti non fit injuria (this is a voluntary assumption of risks). Where the plaintiff (I) knew the risk about and willingly consented to run it, for example, in the world of sports like boxing, ruby just to mention but a few. One cannot complain of injuries suffered. Therefore, for Tyson to rely to this defence of volenti non fit injuria, he has to prove the following:- That the defendant knew the risk involved. That I appreciated the risk involved in all respect. And that I voluntarily consented to it when I sat on the chair with full knowledge of the risk involved. Therefore, I cannot sue Tyson on the tort of negligence and seek compensation afterwards. Conclusion I will therefore conclude that ‘goods must be reasonably fit for the purpose of consumer, therefore Tyson and Mandela ought to represent the good considered fit for it purpose under section 55 of ACL. I cannot sue Tyson in tort of negligence and claim compensation because Tyson can defend himself under volenti non fit injuria. Section 18 of Australian Consumer legislation affirms that, a person in trade should not connect in a conduct that is more likely to mislead or deceive someone. References Davis Emeritus Professor J L R, December 2010, 2006 Effects of the Australian Consumer Law on Building and Construction Contracts. - Australia . - Vol. 2nd Edition. Governement Australian, 2010, The Australian Consumer Law,Australia : Commonwealth of Australia. - Vol. 3rd edition. Coulson John C. and University Monash, 2002The tort of negligence: its importance and relevance in the administration of Victorian high schools ,New York : Oxford,. - Vol. 2 nd edition. Read More