Identify the legal criteria for offer and acceptance in a valid contract
A valid contract is a written or expressed agreement made between two or more parties to provide a product or a service. For it to be legally binding it must include five elements; acceptance, capacity, intention, consideration and offer/ invitation to treat. The starting point for an enforceable contract is the offer and its acceptance. There are various different types of contracts, some are in your every day life such as; buying a newspaper etc. The more complex contracts are when you are buying a phone for example. A verbal contract is when two parties agree through the spoken word and are therefore bound by a verbal agreement. This type of contract is usually done between friends or people who know each other well enough. On the other hand, a written contract is more commonly used in a business world. Additionally, standard-form contracts are used by some businesses, because they often contain terms that amount to custom-made offers and acceptances that fit individual business needs. The benefits of using standards-form contracts are that it is cheap, it avoids the need for individual negotiation and regular parties such as producers or suppliers who are contracted frequently, become familiar with their rights and obligations. When going to court about a contract it would go through the civil law section, in the civil court system. The purpose of the law is to decide if there was a valid contract in the first place and secondly to provide remedies when one person has been affected by another’s failure to perform their part of the contract. For a contract to be legal and consider as a contract, it has to contain four essential elements .The first element is that there is a clear and obvious offer to do something. If the offer gets out of date and goes past its expiry date then it becomes invalid and you cannot use it like the ‘Ramsgate Victoria Hotel VS Montefiore’’ 1866 case. Also, the contract has to be specific, stating e.g. how many days a guest wants to stay in a hotel, the type of room he/she would like to stay in and how many people he/she is coming with to make sure it is clearly stated to make the contract valid. You can tell what an offer is and what isn’t by using the invitation to treat. This is a declaration to show you are willing to open up to negotiations yet this is not an offer in itself.
Lastly, in a contract it is required that both parties enter into a legally binding agreement. This means that both parties have to make legal relations and acknowledge that the agreement can be changed, or enforced by law. Nonetheless, it isn’t a legal requirement to create legal relations so the contract doesn’t need to contain an explanation as to you understanding the legal consequences. 18 is the age stated to be a major therefore no one below the age of 18 can enter a contract as this is illegal, this is the same for insane people. For example, a 16 year old could not stay in a hotel alone as the hotel could not authorise his/her stay as he/she is not 18 and so he/she must accompanied with a guardian who is 18 or older. A famous case is Carlill v Carbolic Smoke Ball Co 1892 and this was when Mrs Carlill claimed the reward given by Carbolic Smoke Ball Co for anybody who has used a smoke ball which is a medical vaporizer or inhaler but caught influenza. The company refused to pay the offer (£100) and was not intended to have any contract what so ever. Mrs Carlill argued and said that it was an offer which she had accepted by buying and using the smoke ball with the instructions. To conclude, Mrs Carlill won the case and the court decided that it was an offer that could be taken as a serious matter and wasn’t just an advertising joke.
Invitation to treat
An invitation to treat is an indication that a person is prepared to receive offers form another person. It is not legally binding and the person who is available to receive an invitation to treat can accept or reject the offer until the final moment of acceptance. An invitation to treat can appear in many different ways such as; catalogues, the business prospectus, shop windows, supermarkets etc. They can sometimes cause confusion and embarrassment when mistakes are made about product information (usually on the price). This can result in businesses having to tell disappointed customers that their products are 'not for sale', because the information classified as an invitation to treat doesn't have to be sold legally. Parties need to decide at an early stage, whether they are going to form a contract by making a definite offer, or whether they are just making enquiries about the possibility of making a contract in the future, for example, an invitation to treat.
Offer
An offer is a definite prompted that is intend to be followed, an offer is the starting point for the contract. The offer is make with a promise that it shall become binding or legally enforceable as soon as it is accepted by the person receiving the offer. Counter-offers are offers that invalidates the original offer. The effect of these is to terminate or end the original offer. Although, enquiries about te variation of contract terms at the negotiating stage will not amount to a counter-offer, even though it may appear to be one. When an offer is made, it must be made aware of by both parties, either in writing or verbally. The offer must be valid but ensuring it isn't too vague and it must be clear. However, an exception to this is known as 'reward cases' in which an offer to a contract can be made to many people or even in theory the whole world. Sometimes it can be difficult to differentiate whether a statement amounts to an offer or whether it is just a statement preparatory to an offer and this is an invitation to treat. An example in the past of this is the Fisher v Bell 1961 where this shows the respect to goods in a shop window. This case involves a shop keeper in Bristol who was prosecuted because he had a flick knife in the shop window with a price label on it. This case was a criminal offence and it did not obey the Offensive Weapons Act 1959 for the reasoning as to you are not allowed to sell knifes for sale. However, the shop keeper was found not guilty because he wasn’t offering the knife for sale; it was an invitation to treat. This was a sensible and realistic decision because the shop keeper could choose the person who sells the goods.
Acceptance
Offer
An offer is a definite prompted that is intend to be followed, an offer is the starting point for the contract. The offer is make with a promise that it shall become binding or legally enforceable as soon as it is accepted by the person receiving the offer. Counter-offers are offers that invalidates the original offer. The effect of these is to terminate or end the original offer. Although, enquiries about te variation of contract terms at the negotiating stage will not amount to a counter-offer, even though it may appear to be one. When an offer is made, it must be made aware of by both parties, either in writing or verbally. The offer must be valid but ensuring it isn't too vague and it must be clear. However, an exception to this is known as 'reward cases' in which an offer to a contract can be made to many people or even in theory the whole world. Sometimes it can be difficult to differentiate whether a statement amounts to an offer or whether it is just a statement preparatory to an offer and this is an invitation to treat. An example in the past of this is the Fisher v Bell 1961 where this shows the respect to goods in a shop window. This case involves a shop keeper in Bristol who was prosecuted because he had a flick knife in the shop window with a price label on it. This case was a criminal offence and it did not obey the Offensive Weapons Act 1959 for the reasoning as to you are not allowed to sell knifes for sale. However, the shop keeper was found not guilty because he wasn’t offering the knife for sale; it was an invitation to treat. This was a sensible and realistic decision because the shop keeper could choose the person who sells the goods.
A valid contract must be accepted by the offer, although their are several factors to be considered when looking at acceptance. Acceptance of the offer must be communicated to the person making an offer, the offeror. Also, it must be in the form specified in the offer, although if no form is specified then written or oral acceptance will suffice. Acceptance doesn't need to be in the specific form which is laid out within the offer, as long as the method of acceptance used satisfies the offer and the offeror is not prejudiced in any way. Furthermore, acceptance of the offer must be unqualified, absolute and without condition. The effect os a change in the acceptance will have the effect of cancelling the original offer as it creates a counter offer. Some contracts can be posted, this is an exception to the rule. Acceptance is considered to be effective as soon as a correctly addressed, stamped evolved is posted in the letterbox. If the letter gets delayed or never reaches the destination, acceptance is still considered valid. Proof of the postage need to be shown though as evidence because it is not acceptance to hand the letter to the postie. As we live in a modern world, there has been some problems associated with offers and acceptances sent though emails and fax. The parties in a contract can get around the postal rules by either; always asking for proof of postage and receipt or stipulating in the contract that acceptance is upon confirmaion.
The battle of the forms
When businesses deal with one another using standard form contracts, there have been difficulties. This is because when businesses go into contract with their own forms, they often contain terms that are in conflict with each other. Most businesses rely on standard form contracts, which causes inevitable disputes. It is hard to decide whose terms are prevailed, this is not easy at all. The court take the approach of, taking the most recent counter-offer to be accepted by the offeror, which means the contract will be concluded on those terms.
Consideration
This is something of value, that is given by both parties of a contract that induces them to reach an agreement in exchange for mutual performance. Each party must give up something which has some value to it, it doesn't have to be expensive, just something that has value to the party. It is an extremely important element when forming a contract, because it may consist of a promise to perform a desired act or to refrain from performing an undesired act. Consideration can take two forms; executed consideration, which is the act in exchange for a promise, such as a reward case where the person making the offer promises to pat the reals upon the act of the task being completed. The other form is executory consideration, which is when the parties exchange promises to perform acts in the future, most contracts begin in this way. If the consideration within a contract is immortal or illegal, the contract will not be valid and it cannot be one-sided because it has to emphasis the idea that there is consideration from both parties. A famous case as an example is Chappell v Nestle, where just a chocolate bar wrappers were enough, it doesn't have to be something which is majorly big or expensive. Past consideration is not a valid type of consideration as it is something that has been already done X at the time the agreement was made by X with K. Another example of this is, a customer in a fast food restaurant like KFC ordering a set meal deal for £5.50; this is the customers agreeing to pay £5.50 for consideration. However, it can be anything which has a value as well as the promise not to do something. These payments do not need to be equal and fair and the court will not get involved if one party gives the other a higher arrangement unless it involves fraud or anything to do with inappropriate conduct.
Right of Third Parties Act 1999
If the party who is making the offer has the capability to accept the offer. As an example, if a business are reducing their prices in a sale, the questions they need to think about is if they can afford to reduce the prices, do they have enough stock to do this etc.
Implications of Pricing Through Invitations to Treat
Some parties may think that they have got an offer however, it is only an invitation to treat to commence negotiations. When in court, they will look carefully and closely at the words written in order to decide if it is just an invitation to treat or an actual offer. By doing this, it will help to understand which party has made the offer.
The battle of the forms
When businesses deal with one another using standard form contracts, there have been difficulties. This is because when businesses go into contract with their own forms, they often contain terms that are in conflict with each other. Most businesses rely on standard form contracts, which causes inevitable disputes. It is hard to decide whose terms are prevailed, this is not easy at all. The court take the approach of, taking the most recent counter-offer to be accepted by the offeror, which means the contract will be concluded on those terms.
Consideration
This is something of value, that is given by both parties of a contract that induces them to reach an agreement in exchange for mutual performance. Each party must give up something which has some value to it, it doesn't have to be expensive, just something that has value to the party. It is an extremely important element when forming a contract, because it may consist of a promise to perform a desired act or to refrain from performing an undesired act. Consideration can take two forms; executed consideration, which is the act in exchange for a promise, such as a reward case where the person making the offer promises to pat the reals upon the act of the task being completed. The other form is executory consideration, which is when the parties exchange promises to perform acts in the future, most contracts begin in this way. If the consideration within a contract is immortal or illegal, the contract will not be valid and it cannot be one-sided because it has to emphasis the idea that there is consideration from both parties. A famous case as an example is Chappell v Nestle, where just a chocolate bar wrappers were enough, it doesn't have to be something which is majorly big or expensive. Past consideration is not a valid type of consideration as it is something that has been already done X at the time the agreement was made by X with K. Another example of this is, a customer in a fast food restaurant like KFC ordering a set meal deal for £5.50; this is the customers agreeing to pay £5.50 for consideration. However, it can be anything which has a value as well as the promise not to do something. These payments do not need to be equal and fair and the court will not get involved if one party gives the other a higher arrangement unless it involves fraud or anything to do with inappropriate conduct.
Right of Third Parties Act 1999
The Rights of Third Parties Act 1999 was an act which was an act to make arrangements for the enforcement of fair terms for third parties in a contract. This act ensures the third-party have a right to get involved as it states that in the contract they make. Someone who is a third-party is a person who is part of a team or a person on the side. The third party rights have limitations by the terms and conditions in the contract. The parties must limit and define what rights they want to give the third parties, they must be extremely clear and identify the names, class or description. This will allow all remedies to be available to a third party as if they were part of the contract made between the original parties. The Right of Third Parties Act 1999 can prevent the alteration of a contract without the consent of non-parties to the contract.
Strengths of Formation
The main advantage of forming a contract is to reduced the risk of the business being sued. This enables all the parties to agree on the terms of the contract. Another advantage is that contract provide clear and useful clarity to both parties, because contracts outline exactly what is exactly from both parties.
Weaknesses of Formation
One disadvantage of forming a contract is that it takes up a lot of time and it costs quite a lot. Another disadvantage to forming a contract, is that the contract may be bias towards one party, which means that the other party will think the contract is unfair and may not want to agree to the contract.
Problems with Offer and Acceptance
A counter offer may be hidden from a conditional acceptance. Furthermore, if the offeree varies the terms and conditions of the offer, then this is a counter offer rather than an acceptance.
Problems with Counter Offer
Some parties may have difficulties deciding on wether there has actually been a counter-offer or just a request to receive more information. This may seem like a new offer has been made, which changes the terms and conditions of the contract. Instead of more information being needed.
Problems with Clarity of Communication
Some people may not speak English fluently, which may make it extremely hard for the party who is offering the contract to communicate with the other party.
Capacity for AcceptanceStrengths of Formation
The main advantage of forming a contract is to reduced the risk of the business being sued. This enables all the parties to agree on the terms of the contract. Another advantage is that contract provide clear and useful clarity to both parties, because contracts outline exactly what is exactly from both parties.
Weaknesses of Formation
One disadvantage of forming a contract is that it takes up a lot of time and it costs quite a lot. Another disadvantage to forming a contract, is that the contract may be bias towards one party, which means that the other party will think the contract is unfair and may not want to agree to the contract.
Problems with Offer and Acceptance
A counter offer may be hidden from a conditional acceptance. Furthermore, if the offeree varies the terms and conditions of the offer, then this is a counter offer rather than an acceptance.
Problems with Counter Offer
Some parties may have difficulties deciding on wether there has actually been a counter-offer or just a request to receive more information. This may seem like a new offer has been made, which changes the terms and conditions of the contract. Instead of more information being needed.
Problems with Clarity of Communication
Some people may not speak English fluently, which may make it extremely hard for the party who is offering the contract to communicate with the other party.
If the party who is making the offer has the capability to accept the offer. As an example, if a business are reducing their prices in a sale, the questions they need to think about is if they can afford to reduce the prices, do they have enough stock to do this etc.
Implications of Pricing Through Invitations to Treat
Some parties may think that they have got an offer however, it is only an invitation to treat to commence negotiations. When in court, they will look carefully and closely at the words written in order to decide if it is just an invitation to treat or an actual offer. By doing this, it will help to understand which party has made the offer.
UNIT 21 P2
Explain the law in relation to the formation of a contract in a given situation
Within this assignment, I will be explaining the law in relation to the formation of a contract within a given situation. The contract I will be using the the FE enrolment form, because this is the contract that all the pupils in the college have to fill in and sign when they first enrol for the college.
There is a legal requirement to have clear contract terms, because it is essential to business trade. By having clear contract terms, this will allow both parties to be made fully aware of the conditions that the contract is stating. This can be done by having specific wording, along with no misunderstanding or vague language. This reduces the risk of a breach of contract occurring, along with any issues or risks that could happen if any of the parties misunderstand the contract.
One case that is specifically known and used to explain the breach of contract within the law industry is the Butler Machine Tool Company Ltd Ex-Cell-O Corp Ltd 1979 case. In which The Butler Machine Tool Company offered machinery to the Ex-Cell-O Corporation for £75.535. In this quotation, it included a term in a standard form contract, which was called a variation clause. It allows the seller to increase the price of the quotation. The Ex-Cell-O Corporation accepted this offer on their own standard form contract that was silent as to variation clauses. This agreement was made and when the machinery was devilled, the price had been increased by £2,892. The defendant refused to pay this amount because he did not agree to pay that price originally. They then went to the Court of Appeals, where the court decided that the defendant's form had been accepted by the claimant so the defendants terms government the agreement. This means that the sellers attempt at increasing the price failed.
Moreover, another case which is commonly known is McArdle 1951. This case involves Mr McArdle passing away and leaving his wife in the house alone. He left a life interest in their house, after which it was to be given to their children when his wife dies. The widow and there three grown children all moved back into the house along with the sons wife. One of the sons wife's made a load of improvements on the house which cost a total of £488. This means that the other siblings agreed to reimburse the brother as a form of compensation for the work he and the wife had done. This cause a dispute between the family as the other siblings refused to pay.
Within this assignment, I will be explaining the law in relation to the formation of a contract within a given situation. The contract I will be using the the FE enrolment form, because this is the contract that all the pupils in the college have to fill in and sign when they first enrol for the college.
There is a legal requirement to have clear contract terms, because it is essential to business trade. By having clear contract terms, this will allow both parties to be made fully aware of the conditions that the contract is stating. This can be done by having specific wording, along with no misunderstanding or vague language. This reduces the risk of a breach of contract occurring, along with any issues or risks that could happen if any of the parties misunderstand the contract.
One case that is specifically known and used to explain the breach of contract within the law industry is the Butler Machine Tool Company Ltd Ex-Cell-O Corp Ltd 1979 case. In which The Butler Machine Tool Company offered machinery to the Ex-Cell-O Corporation for £75.535. In this quotation, it included a term in a standard form contract, which was called a variation clause. It allows the seller to increase the price of the quotation. The Ex-Cell-O Corporation accepted this offer on their own standard form contract that was silent as to variation clauses. This agreement was made and when the machinery was devilled, the price had been increased by £2,892. The defendant refused to pay this amount because he did not agree to pay that price originally. They then went to the Court of Appeals, where the court decided that the defendant's form had been accepted by the claimant so the defendants terms government the agreement. This means that the sellers attempt at increasing the price failed.
Moreover, another case which is commonly known is McArdle 1951. This case involves Mr McArdle passing away and leaving his wife in the house alone. He left a life interest in their house, after which it was to be given to their children when his wife dies. The widow and there three grown children all moved back into the house along with the sons wife. One of the sons wife's made a load of improvements on the house which cost a total of £488. This means that the other siblings agreed to reimburse the brother as a form of compensation for the work he and the wife had done. This cause a dispute between the family as the other siblings refused to pay.
UNIT 21 P3- PASSED
Describe the law with respect to misrepresentation in a given situation
There are a number of factors that will invalidate an agreement. Contracts are often preceeded by a series of negotiations made between the parties. There negotiations are a series of representations forming the basis of a contract itself. If they are misrepresentations, then the contractual position between the parties is in doubt.
Misrepresentation is the actin of giving a false or misleading account of the nature of something. Within contract law, it refers to a dishonest statement that has been made by one of the parties. This has an effect on the other party who has not made the offer.
Fraudulent misrepresentation
If a person makes a false statement intentionally, they are automatically liable for fraud. When one party misleads another party with false knowledge this is called fraudulent misrepresentation. If the party who is making the offer, makes the statement very misleading and unclear, with little knowledge about it, then he is also liable for fraud. The other party can then take him to court and reject the offer, and it could result in the party who made a misleading statement to be prosecuted in the criminal courts. An action of fraudulent misrepresentation allow for the remedy of damages. An example of fraudulent misrepresentation in an EE mobile phone contract would be if: a sales person selling a mobile phone tells the customer that they will receive 100 minutes of calls and 800 text messages free just to entice the customer to buy the phone. This is false information, therefore if the customer purchases this phone and they do not receive 100 minutes of calls and 800 text messages free, then the sales person who promised that will make EE liable for fraud.
Negligent misrepresentation
This is when a statement is made by one party to another party without any validity that the statement is true. They solution for this type of misrepresentation might be to put parties into a position as if the misrepresentation never happened. An example of negligent misrepresentation in an EE mobile phone contract would be if: the sales person offering the contract tells the person buying their mobile phone that the phone will be delivered to them in at least 5 working days without them knowing how long it actually will take. If the phone gets delivered any time after that time period, the both parties can be in a position as if the misrepresentation never happened.
Innocent misrepresentation
This is when false statement is made by one of the parties unintentionally. One party believes that their statement is true, although it makes the statement have no grounds to be valid. This is a simple misunderstanding which can easily be cancelled. An example of innocent misrepresentation within EE using a mobile phone contract would be if: the sales person is selling a mobile phone and they make a mistake in reading out the terms and conditions to the customer. The customer would get the wrong information because of this, however it was a mistake and this would make it an innocent misrepresentation.
In court, they will establish what type of misrepresentation has happened and how to deal with it by discussing the remedies. There are type type of remedies available. One of them is damages which is when financial compensation is given to the party who has had the contract misrepresented to them. The other type of remedies is rescission, which is also available for the party who has has the contract misrepresented to them. The contract is then completely unvalid and scrapped, and noone has to accept it.
Describe the law with respect to misrepresentation in a given situation
There are a number of factors that will invalidate an agreement. Contracts are often preceeded by a series of negotiations made between the parties. There negotiations are a series of representations forming the basis of a contract itself. If they are misrepresentations, then the contractual position between the parties is in doubt.
Misrepresentation is the actin of giving a false or misleading account of the nature of something. Within contract law, it refers to a dishonest statement that has been made by one of the parties. This has an effect on the other party who has not made the offer.
Fraudulent misrepresentation
If a person makes a false statement intentionally, they are automatically liable for fraud. When one party misleads another party with false knowledge this is called fraudulent misrepresentation. If the party who is making the offer, makes the statement very misleading and unclear, with little knowledge about it, then he is also liable for fraud. The other party can then take him to court and reject the offer, and it could result in the party who made a misleading statement to be prosecuted in the criminal courts. An action of fraudulent misrepresentation allow for the remedy of damages. An example of fraudulent misrepresentation in an EE mobile phone contract would be if: a sales person selling a mobile phone tells the customer that they will receive 100 minutes of calls and 800 text messages free just to entice the customer to buy the phone. This is false information, therefore if the customer purchases this phone and they do not receive 100 minutes of calls and 800 text messages free, then the sales person who promised that will make EE liable for fraud.
Negligent misrepresentation
This is when a statement is made by one party to another party without any validity that the statement is true. They solution for this type of misrepresentation might be to put parties into a position as if the misrepresentation never happened. An example of negligent misrepresentation in an EE mobile phone contract would be if: the sales person offering the contract tells the person buying their mobile phone that the phone will be delivered to them in at least 5 working days without them knowing how long it actually will take. If the phone gets delivered any time after that time period, the both parties can be in a position as if the misrepresentation never happened.
Innocent misrepresentation
This is when false statement is made by one of the parties unintentionally. One party believes that their statement is true, although it makes the statement have no grounds to be valid. This is a simple misunderstanding which can easily be cancelled. An example of innocent misrepresentation within EE using a mobile phone contract would be if: the sales person is selling a mobile phone and they make a mistake in reading out the terms and conditions to the customer. The customer would get the wrong information because of this, however it was a mistake and this would make it an innocent misrepresentation.
In court, they will establish what type of misrepresentation has happened and how to deal with it by discussing the remedies. There are type type of remedies available. One of them is damages which is when financial compensation is given to the party who has had the contract misrepresented to them. The other type of remedies is rescission, which is also available for the party who has has the contract misrepresented to them. The contract is then completely unvalid and scrapped, and noone has to accept it.
UNIT 21 P6- PASSED
Explain the law with respect to consumer protection in given situations
Explain the law with respect to consumer protection in given situations
The Sales of Goods Act 1979 is the definition of goods and it defines a contract of sales of goods as ‘A contract by which the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration called price’, and only those contracts which fall within it are covered by the Act. The definition of goods include all tangible items of property e.g. clothes, food, furniture. Land and money are excluded though. The Sale of Goods Act1979 has a series of conditions that are already automatically included in all the contracts with sales. This includes dealings with e.g. incorrect title, description, fitness & satisfactory quality and sample. The parties within the contract usually are able to discuss the details of the contract between each other. The Sales of Goods Act 1979 includes many different conditions in which are involuntarily within the contract regarding the Sale of Goods. These are implied terms, which contain information about the fitness, description, title and the quality.
In section 12 is title and this is the right to sell. There is an implied condition on the part of the seller having the right to sell the goods. A seller will be liable for breach of contract if you can’t pass a good. An example of this could be where, deal dealers sell cars which physically belong to them, although legally the car dealers have the ability to grant the ownership of their vehicle to another person. Then this person will then be liable for breach of contract if they have a problem with the contract or the car. This section includes all the implied terms within it. Also, the section covers all the situations in which people are selling stolen goods.
In section 13 there is an implied term that the goods will correspond with that description. The description of the goods may cover such matters like size, quantity, ingredients, weight and origin as well as how the goods are packed. If the slightest bit of description is missing or left out, this gives the buyer the right to reject the goods for breach of condition of the contract. An example of this in the past is the FW Moore & Co. v Landauer &Co. 1921 which involved FW Moore & Co. agreeing to supply to Landauer &Co. 3,000 tins of Australian canned fruit which were packed in cases which contain 30 tins each. However, when the delivery got to Landauer &Co. it was discovered that although the 3,000 tins were there, about half the consignment was packed in cases of 24 tins. The court, therefore agreed that FW Moore & Co. could reject the whole contract as they stated in the first place that they would contain 30 tins and this is not what they agreed to buy therefore they have the right to reject the whole delivery because this is not what they wanted or brought. Fitness and satisfactory quality is when there is no general duty placed on private sellers to make sure the goods sold are of correct quality and suitability. This preserved the principle of caveat emptor which is Latin for “let the buyer beware” which means that a buyer buys a product ‘as is’ and should be aware of the defect it has and this should all be stated in the description to the buyer is aware and it is know of.
In section 12 is title and this is the right to sell. There is an implied condition on the part of the seller having the right to sell the goods. A seller will be liable for breach of contract if you can’t pass a good. An example of this could be where, deal dealers sell cars which physically belong to them, although legally the car dealers have the ability to grant the ownership of their vehicle to another person. Then this person will then be liable for breach of contract if they have a problem with the contract or the car. This section includes all the implied terms within it. Also, the section covers all the situations in which people are selling stolen goods.
In section 13 there is an implied term that the goods will correspond with that description. The description of the goods may cover such matters like size, quantity, ingredients, weight and origin as well as how the goods are packed. If the slightest bit of description is missing or left out, this gives the buyer the right to reject the goods for breach of condition of the contract. An example of this in the past is the FW Moore & Co. v Landauer &Co. 1921 which involved FW Moore & Co. agreeing to supply to Landauer &Co. 3,000 tins of Australian canned fruit which were packed in cases which contain 30 tins each. However, when the delivery got to Landauer &Co. it was discovered that although the 3,000 tins were there, about half the consignment was packed in cases of 24 tins. The court, therefore agreed that FW Moore & Co. could reject the whole contract as they stated in the first place that they would contain 30 tins and this is not what they agreed to buy therefore they have the right to reject the whole delivery because this is not what they wanted or brought. Fitness and satisfactory quality is when there is no general duty placed on private sellers to make sure the goods sold are of correct quality and suitability. This preserved the principle of caveat emptor which is Latin for “let the buyer beware” which means that a buyer buys a product ‘as is’ and should be aware of the defect it has and this should all be stated in the description to the buyer is aware and it is know of.
In section 14 it states that if you buy a product in the course of a business there are two implied conditions; the goods are of satisfactory quality and the goods are fit for a particular purpose. This means that when a seller sells a product within a business the goods sold must be of a satisfactory quality except if it has defects which are clearly stated and made aware of. The quality of goods includes the state and condition of the product. Section 14 does not require absolute standards of quality with which all goods must comply however, goods must be acceptable and satisfactory to a reasonable person for a purpose which means that the goods do not have to be of a polished and spotless quality but adequate standard in the usual run of events. Furthermore, the goods should be fit for a particular purpose as this is the law and this ensures the goods being sold are durable, safe and will last long and wont break straight after purchasing the item. An example of this is Priest v Last 1903 when the buyer bought a hot water bottle from the seller at a chemist and his wife used the hot water bottle and after 5 times of using it the water burst and his wife was burnt and scalded. This shows that the bottle was not ‘fit for the purpose’ which was the use as a hot water bottle. The buyer claimed for breach of Section 14 and the seller stated that the buyer had not made the purpose known of the hot water bottle. However, the court rejected this as the seller has entitled to recover the expenses in the treatment of the buyer’s wife’s injuries. This is because the buyer took the sellers word and relied on his opinion and judgement and he had in fact used the hot water bottle for the usual and common purpose. Within a business it is required that the seller states or suggested the particular purpose of the goods being sold before purchasing as this is vital that the seller is told the particular purpose as this will offer a degree of protection for the buyer under the legalisation.
The Supply of Goods and Services Act 1979 discusses the concerns contracts have, that involve the selling of goods for money. The act doesn't include any additional procedures of getting money as well as not covering the running of the services which are offered. The Supply of Goods and Services Act and the Services Act both discuss the terms which have been implied formerly by the common law in contracts for services on a legal basis. The Supply of Goods and Services Act 1979 discusses the implied terms which are used within contracts for an individual to settle with goods to another individual by the way of hire. An example of this is when hiring a car. In the act there are different sections, which deal with several implied terms and conditions. If the Supply of Goods and Services Act is not followed, and the contract is breached, there will be similar remedies as if the Sales of Goods Act is breached.
The Supply of Goods and Services Act 1979 discusses the concerns contracts have, that involve the selling of goods for money. The act doesn't include any additional procedures of getting money as well as not covering the running of the services which are offered. The Supply of Goods and Services Act and the Services Act both discuss the terms which have been implied formerly by the common law in contracts for services on a legal basis. The Supply of Goods and Services Act 1979 discusses the implied terms which are used within contracts for an individual to settle with goods to another individual by the way of hire. An example of this is when hiring a car. In the act there are different sections, which deal with several implied terms and conditions. If the Supply of Goods and Services Act is not followed, and the contract is breached, there will be similar remedies as if the Sales of Goods Act is breached.
A case study from 1987 is the Rogers v Parish (Scarborough) case in which Rogers brought a new Range Rover for £16,000 and within 6 months of driving it, the engine became defective and the bodywork of the car began to deteriorate. The driver of the car wished to reject the vehicle even though it was able to get repaired and it was still capable to drive. The Court came to a conclusion that the buyer was entitled to do so. This is because it wasn’t stated by the seller how old the Range Rover was, and how the engine wasn’t fulling functioning. Also, a new car would not deteriorate within 6 months as it is an extremely expensive and superior car.
Section 15 is part of the Sales of Goods Act 1979, and is named 'sale by sample'. A sale by simply section is included within contracts of bulk orders. There are two elements to this section. The first element which is mentioned, is that he bulk of goods will match the description and quality of the sample provided by the business, as well as this it has to provide the exact number that is specified in the order and contract. The second section explains that all the products provided in the bulk order must be free from ant mistakes and defects, especially the ones which could affect the safety of the consumer. The Services Act 1982 deals with implied terms that apply to contracts of which one person agrees to bail goods to another person by way of hire e.g. hiring a car or a piece of machinery. Different sections of the Act deal with the various implied terms and conditions.
Section 15 is part of the Sales of Goods Act 1979, and is named 'sale by sample'. A sale by simply section is included within contracts of bulk orders. There are two elements to this section. The first element which is mentioned, is that he bulk of goods will match the description and quality of the sample provided by the business, as well as this it has to provide the exact number that is specified in the order and contract. The second section explains that all the products provided in the bulk order must be free from ant mistakes and defects, especially the ones which could affect the safety of the consumer. The Services Act 1982 deals with implied terms that apply to contracts of which one person agrees to bail goods to another person by way of hire e.g. hiring a car or a piece of machinery. Different sections of the Act deal with the various implied terms and conditions.
Section 7 states that there is an implied condition that the bailor, which is the person providing the hire has the right to transfer the goods e.g. if a person hires a piece of gym equipment via the Internet from a gym hire fire, then it is implied that the gym equipment is delivered by the gym hire fire and is owned by that firm and that they will allow the hire to take place and happen. Section 8 includes that when there is a contract for the hire of goods by description that there is an implied condition that the goods will match the description. Section 9 states that when goods are hired within a business, there is a condition that the goods are of a satisfactory quality and reasonably fit for the purpose hired.
Lastly, Section 10 covers implied conditions in relation to the contracts of the hire of goods by sample whereby the bulk must match the sample given. In Section 2 of the Supply of Goods Act and Services Act 1982 it contains a condition that the transferor which is the person who is providing the goods or services to have the legal right to transfer the property. Moreover, Section 3 includes that the goods will correspond to the description stated e.g. if your computer broke down and you sent it to a computer repair shop to get repaired, the invoice should describe the parts fitted and the work done to the laptop to repair it as this is required. Then the invoice would be implied into the contract that the actual parts and work has been provided. In Section 4 of the Act is says that when goods are being transferred in the business there is a condition that the good are suitable and fit for the purpose described. Ultimately, Section 5 refers to transferring goods for a sample and there is a condition that the bulk will correspond with the sample.
Lastly, Section 10 covers implied conditions in relation to the contracts of the hire of goods by sample whereby the bulk must match the sample given. In Section 2 of the Supply of Goods Act and Services Act 1982 it contains a condition that the transferor which is the person who is providing the goods or services to have the legal right to transfer the property. Moreover, Section 3 includes that the goods will correspond to the description stated e.g. if your computer broke down and you sent it to a computer repair shop to get repaired, the invoice should describe the parts fitted and the work done to the laptop to repair it as this is required. Then the invoice would be implied into the contract that the actual parts and work has been provided. In Section 4 of the Act is says that when goods are being transferred in the business there is a condition that the good are suitable and fit for the purpose described. Ultimately, Section 5 refers to transferring goods for a sample and there is a condition that the bulk will correspond with the sample.
UNIT 21 P7- PASSED
Describe the remedies available for breach of contract
Remedies are legal solutions that are valuable to victims of contract misrepresentations. There are five basic remedies for breach of contract, which include; damages, restitution, rescission, reformation and specific performance. The party who have access to remedies are also eligible to gain compensation for the loss.
There are two types of damages that can be offered to compensate the injured party. One type is liquidated damages, which is an amount of money agreed beforehand that will be paid back in an event of a breach of contract. The other type of damages is unliquidated damages, which is an amount of money that isn't agreed before the contract. In a case of a breach of contract, then this amount is decided in court.
Restitution is a remedy which is designed to restore the injured party to the position they were in before the formation of the contract. If a party seeks restitution, then they may not request to get compensation for lost profits or other earning caused by the breach.
Injunction is another remedy which is used in a breach of contract. Injunction is when the court requires the party at error to keep to the contract. It prohibits a party from a particular act and it can be temporary, prelimanary or permanent.
Specific performance is an equitable remedy which compels one party to perform, as nearly as practicable, his or her duties specified by the contract. Specific performance is only available when the money damages are inadequate to compensate the plaintiff for the breach of contact. This is only used when damages are not considered a satisfactory solution.
Furthermore, resale is used when there is a breach of contract as a solution. Resale happens when a seller has goods that haven't been paid for. They then have the right to resell the goods because the seller isn't buying the goods anymore. Although, this can only be done if the seller has told the buyer they want to resell but they don't respond, or it is written in the contract.
There are three bases of assessment to measure the damages. One of these three bases is expectation interest. It includes the benefit of bargain, lost profit and the cost of cover. Reliance interest is interest created based on a promise of the contract
Describe the remedies available for breach of contract
Remedies are legal solutions that are valuable to victims of contract misrepresentations. There are five basic remedies for breach of contract, which include; damages, restitution, rescission, reformation and specific performance. The party who have access to remedies are also eligible to gain compensation for the loss.
There are two types of damages that can be offered to compensate the injured party. One type is liquidated damages, which is an amount of money agreed beforehand that will be paid back in an event of a breach of contract. The other type of damages is unliquidated damages, which is an amount of money that isn't agreed before the contract. In a case of a breach of contract, then this amount is decided in court.
Restitution is a remedy which is designed to restore the injured party to the position they were in before the formation of the contract. If a party seeks restitution, then they may not request to get compensation for lost profits or other earning caused by the breach.
Injunction is another remedy which is used in a breach of contract. Injunction is when the court requires the party at error to keep to the contract. It prohibits a party from a particular act and it can be temporary, prelimanary or permanent.
Specific performance is an equitable remedy which compels one party to perform, as nearly as practicable, his or her duties specified by the contract. Specific performance is only available when the money damages are inadequate to compensate the plaintiff for the breach of contact. This is only used when damages are not considered a satisfactory solution.
Furthermore, resale is used when there is a breach of contract as a solution. Resale happens when a seller has goods that haven't been paid for. They then have the right to resell the goods because the seller isn't buying the goods anymore. Although, this can only be done if the seller has told the buyer they want to resell but they don't respond, or it is written in the contract.
There are three bases of assessment to measure the damages. One of these three bases is expectation interest. It includes the benefit of bargain, lost profit and the cost of cover. Reliance interest is interest created based on a promise of the contract
UNIT 21 M1- PASSED
Analyse the impact of requirements for a valid contract in a given situation
PUT INTO POWERPOINT!!!!
Aspects of Business and Contract Law
By Olivia Spalter
What is a contract?
A contract is written or verbal agreement between two parties put together to provide a good or service. Sometimes there can be a third part involved, not commonly though. Within this assignment, I will be analysing the impact of requirement for a valid contract in a situation of a mobile phone contract.
The formation of a contract
From looking at my chosen mobile phone contract, I have been able to spot a various number of strengths of the formation of the contract. These include;
-The layout of the contract is clear and organised, which makes it easy to read and understand.
-It looks professional which is important because people want to know its legit and valid before singing a contract.
-The information within the contract clearly informs and is straight to the point about what the contract is about.
-It is extremely detailed and includes accurate and relevant information that both parties need to know about the contract.
-The consequences are also straight to the point and are clear that if any of the parties breach the contract, there are severe consequences.
-Terms and conditions are included clearly within the contract.
-There are valid date, prices and times included, which shows proof of the parties signing the contract.
There were multiple weaknesses that I also identifed from looking at the mobile phone contract. These include;
-It is very straight to the point, although I feel it includes too much irrelevant information. It includes too much information for a contract, which could put the reader off of the contract.
-Moreover, the font of the contract is way too small and some people may not be able to read it, which means they may miss something out or people could feel like they are hiding something due to the small font.
-This could also affect people from reading the contract, because they could be put off and not want to squint and focus deeply to read a whole load of writing.
-Due to legalisations constantly changing in the technology industry especially, this means that the terms and conditions need to constantly be updated.
-This can waste a lot of time for EE because they will have to make sure everything is updated.
-This will cost a lot of money, because the contracts are long and would require loads of pages when being printed off.
Problems with Offer and Acceptance
-When the seller accepts the offer, the seller then cannot change their mind or change the offer. The offer will be considered as a counter offer, rather than an acceptance.
-There is an obvious offer and acceptance which makes the contract successful. This allows the contract to become a binding contract.
-The offer and acceptance process can sometimes involve unilateral situations, which could make the offer and acceptance challenging. By causing this uncertainty to either of the parties, it means that they are liable to back out of the contract until it has been confidentially written and then becomes valid.
Problems with Counter Offers
-Accepting counter offers can be a problem sometimes. A lot of people leave the business within the first year of accepting a counter offer. This type of problem is mostly common within headcounters and recruiters.
-Furthermore, another problem with counter offers is that some people are not sure if they have been offered a counter offer or a normal offer request. The customer may think it is an offer, however they could be wrong and think something is a real offer rather than just an informal suggestion, which has not been formally written and therefore means it isn't valid or an actual contract offer.
Problems with Clarity of Communication
-One problem that could occur with clarity of communication, is that sometimes the offeror is too vague with the contract, and this leads the other party thinking something that hasn't been made clear. This means the offer is invalid because the contract is misleading.
-Additionally, a language barrier could affect the clarity of communication between the two parties. If the two parties don't speak the same language this can be extremely difficult to ensure nothing gets misunderstood.
-This could also lead to further inconveniences in the future for the two parties.
Capacity of Acceptance
-An agreement must be fair and both parties must agree with it. There should be no pressure put on the buyer to accept the contract.
-This is known as 'expressions of reasonable certainty'
-It means that the offer must be accepted unconditionally, which isn't fair.
-Another problem is that, there are limitations to who can enter a valid offer and accept such as; no under 18's.
-This is because they require a legal consent from a parent or legal guardian to obtain a mobile phone contract.
Implications of pricing through Invitation to Treat
-This is to make sure that it is obvious which party has made the offer, and which is accepting the offer.
-This is the process of inviting one of the parties to make an offer.
-It then goes through the court, and they decide if the invitation to treat is seen as an actual offer.
-However, before the court make their decision there are various factors that are considered such as format, content, language etc.
PUT INTO POWERPOINT!!!!
Aspects of Business and Contract Law
By Olivia Spalter
What is a contract?
A contract is written or verbal agreement between two parties put together to provide a good or service. Sometimes there can be a third part involved, not commonly though. Within this assignment, I will be analysing the impact of requirement for a valid contract in a situation of a mobile phone contract.
The formation of a contract
From looking at my chosen mobile phone contract, I have been able to spot a various number of strengths of the formation of the contract. These include;
-The layout of the contract is clear and organised, which makes it easy to read and understand.
-It looks professional which is important because people want to know its legit and valid before singing a contract.
-The information within the contract clearly informs and is straight to the point about what the contract is about.
-It is extremely detailed and includes accurate and relevant information that both parties need to know about the contract.
-The consequences are also straight to the point and are clear that if any of the parties breach the contract, there are severe consequences.
-Terms and conditions are included clearly within the contract.
-There are valid date, prices and times included, which shows proof of the parties signing the contract.
There were multiple weaknesses that I also identifed from looking at the mobile phone contract. These include;
-It is very straight to the point, although I feel it includes too much irrelevant information. It includes too much information for a contract, which could put the reader off of the contract.
-Moreover, the font of the contract is way too small and some people may not be able to read it, which means they may miss something out or people could feel like they are hiding something due to the small font.
-This could also affect people from reading the contract, because they could be put off and not want to squint and focus deeply to read a whole load of writing.
-Due to legalisations constantly changing in the technology industry especially, this means that the terms and conditions need to constantly be updated.
-This can waste a lot of time for EE because they will have to make sure everything is updated.
-This will cost a lot of money, because the contracts are long and would require loads of pages when being printed off.
Problems with Offer and Acceptance
-When the seller accepts the offer, the seller then cannot change their mind or change the offer. The offer will be considered as a counter offer, rather than an acceptance.
-There is an obvious offer and acceptance which makes the contract successful. This allows the contract to become a binding contract.
-The offer and acceptance process can sometimes involve unilateral situations, which could make the offer and acceptance challenging. By causing this uncertainty to either of the parties, it means that they are liable to back out of the contract until it has been confidentially written and then becomes valid.
Problems with Counter Offers
-Accepting counter offers can be a problem sometimes. A lot of people leave the business within the first year of accepting a counter offer. This type of problem is mostly common within headcounters and recruiters.
-Furthermore, another problem with counter offers is that some people are not sure if they have been offered a counter offer or a normal offer request. The customer may think it is an offer, however they could be wrong and think something is a real offer rather than just an informal suggestion, which has not been formally written and therefore means it isn't valid or an actual contract offer.
Problems with Clarity of Communication
-One problem that could occur with clarity of communication, is that sometimes the offeror is too vague with the contract, and this leads the other party thinking something that hasn't been made clear. This means the offer is invalid because the contract is misleading.
-Additionally, a language barrier could affect the clarity of communication between the two parties. If the two parties don't speak the same language this can be extremely difficult to ensure nothing gets misunderstood.
-This could also lead to further inconveniences in the future for the two parties.
Capacity of Acceptance
-An agreement must be fair and both parties must agree with it. There should be no pressure put on the buyer to accept the contract.
-This is known as 'expressions of reasonable certainty'
-It means that the offer must be accepted unconditionally, which isn't fair.
-Another problem is that, there are limitations to who can enter a valid offer and accept such as; no under 18's.
-This is because they require a legal consent from a parent or legal guardian to obtain a mobile phone contract.
Implications of pricing through Invitation to Treat
-This is to make sure that it is obvious which party has made the offer, and which is accepting the offer.
-This is the process of inviting one of the parties to make an offer.
-It then goes through the court, and they decide if the invitation to treat is seen as an actual offer.
-However, before the court make their decision there are various factors that are considered such as format, content, language etc.
UNIT 21 M2- PASSED
Analyse how consumers are protected in the event of breach of contract for the supply/sale of goods or services
Analyse how consumers are protected in the event of breach of contract for the supply/sale of goods or services
Customers have protection in the event of a breach of contract for the supply/sale of goods or services as there are laws which ensure you have protection. One of these laws is the Trade Description Act 1968. This law states that it is a criminal offence to mislead a consumer by a false description. A description of goods that are sold or hired must be the truthful and accurate. The description could be in an advertisement, writing, given orally in a sales pitch for example or in an illustration and in the description is needs to include a variety of factors such as; fitness for started purpose, endorsement for people or businesses, quantity and size, composition, methods, place and date of manufacture. These factors must be included in the description clearly and accurate e.g. if you are selling a pair of shoes that you have worn once, you cannot state that they are brand new just because they are in the box, you have to state that they have been worn once and have signs of wear on the soles etc. Misleading descriptions of this type in a contract are called false trade descriptions which means it is a description made by a seller about the good/product/service they are selling which is inaccurate.
Harlington & Leinster v Christopher Hull 1991 was a case in which Harlington & Leinster brought a painting from the Hull Company which was controlled by Mr. Christopher Hull for £6,000 and the painting was described in an auction catalogue as being by the German impressionist artist Gabrielle Munter. However, the sellers weren’t experts on German Paintings whilst the buyer specialised in German paintings. Therefore, the purchasers sent their experts to insect the painting before agreeing to purchase the painting but after the sale the buyers discovered that the painting was a fake and was worth less than £100. Other laws that protect consumers in the breach of contract for the supply and sales of goods in many ways are; The Sale of Goods Act 1979 and the Supply Of Goods and Services Act 1982.
The Sales of Goods Act is a important legislation, which defines the contract of a sales of goods as 'a contract by which the seller transfers or agrees to transfer the property in goods to the buyer for money consideration called price'. This means that, only contracts which fall within it are covered by the Sales of Goods Act. The goods are tangible items which include; clothes, furniture, food, land, money etc. These are all excluded from the definition. The Supply Of Goods and Services Act 1982 protects customers when goods are supplied in addition to a service. In section 2 of this act, it is an implied term which states that the transferor is legally obliged to transfer the property or carry out the service. It states that the seller must have the legal right in order to sell goods and services on a product, which covers the business in which the individual is part of. A disadvantage to section 2 is that, it is rarely recognised that the individual presenting the service doesn't have a the appropriate legal requirements, which makes it hard to prevent a bad service.
Harlington & Leinster v Christopher Hull 1991 was a case in which Harlington & Leinster brought a painting from the Hull Company which was controlled by Mr. Christopher Hull for £6,000 and the painting was described in an auction catalogue as being by the German impressionist artist Gabrielle Munter. However, the sellers weren’t experts on German Paintings whilst the buyer specialised in German paintings. Therefore, the purchasers sent their experts to insect the painting before agreeing to purchase the painting but after the sale the buyers discovered that the painting was a fake and was worth less than £100. Other laws that protect consumers in the breach of contract for the supply and sales of goods in many ways are; The Sale of Goods Act 1979 and the Supply Of Goods and Services Act 1982.
The Sales of Goods Act is a important legislation, which defines the contract of a sales of goods as 'a contract by which the seller transfers or agrees to transfer the property in goods to the buyer for money consideration called price'. This means that, only contracts which fall within it are covered by the Sales of Goods Act. The goods are tangible items which include; clothes, furniture, food, land, money etc. These are all excluded from the definition. The Supply Of Goods and Services Act 1982 protects customers when goods are supplied in addition to a service. In section 2 of this act, it is an implied term which states that the transferor is legally obliged to transfer the property or carry out the service. It states that the seller must have the legal right in order to sell goods and services on a product, which covers the business in which the individual is part of. A disadvantage to section 2 is that, it is rarely recognised that the individual presenting the service doesn't have a the appropriate legal requirements, which makes it hard to prevent a bad service.
Section 3 of the Supply Of Goods and Services Act 1982, is an implied condition which declares that the transfer for goods and services by description. This implies that the service which is described must be the same as service provided. An example of this is if you go into Apple to get your phone fixed. They will write down all the parts which need replacing and fixing, and they will give this to the customer who's phone is getting fixed. These repairs will be implied into the contract of the service provided. The Supply Of Goods and Services Act 1982 is there to protect customers when goods have been supplied in addition to a service. The act contains the customer rights which isn't mentioned within the contract. Section 2 of the act implies the term which states that the transferor is legally obliged to transfer the property or carry out the service. The benefit of section 3 is that, the party that is affected can sue for damages as long as they have a valid reason for why, and provide proof for it.
According to Section 13 of The Sales of Goods Act they disobeyed this act as the painting was not described and misleading. However, by sending experts to examine the painting this meant the sale was no longer by description so Section 13 only applies to goods sold by description and therefore the buyers had no protection. Consumer contracts are highly protected by businesses and terms are implied into contracts to ensure they are being kept safe and protected. Businesses which break these laws will be in breach of contract and depending on the situation may have to face criminal prosecution. It is a criminal offence and against the law for the bailor or transferor to make a statement that is misleading or inaccurate when selling a good/product/service. This includes making a false accusation about the nature, manner, provision, location or approval of the services, accommodation or facilities. The minimum a person could go to jail for is two years or receive an unlimited fine if a person is found breaking this Act. By breaking the law, it also makes the person liable for misrepresentation for which damages may also be given.
According to Section 13 of The Sales of Goods Act they disobeyed this act as the painting was not described and misleading. However, by sending experts to examine the painting this meant the sale was no longer by description so Section 13 only applies to goods sold by description and therefore the buyers had no protection. Consumer contracts are highly protected by businesses and terms are implied into contracts to ensure they are being kept safe and protected. Businesses which break these laws will be in breach of contract and depending on the situation may have to face criminal prosecution. It is a criminal offence and against the law for the bailor or transferor to make a statement that is misleading or inaccurate when selling a good/product/service. This includes making a false accusation about the nature, manner, provision, location or approval of the services, accommodation or facilities. The minimum a person could go to jail for is two years or receive an unlimited fine if a person is found breaking this Act. By breaking the law, it also makes the person liable for misrepresentation for which damages may also be given.
An example of the application of this provision can be found in the Godley v Perry 1960 case in which the goods were not fit for its purpose and were not of merchantable quality. This is a breach of Section 14 in the Act. Besides this, the 3rd and 4th parties were both in breach of Section 15 since the defect of the goods couldn’t be discovered by reasonable examination of the sample. A case study from 2005 is Marks & Spencer. kIn September of 2005 Marks & Spencer were fined £10,000 for breaking the Trade Descriptions Act. They were found guilty of making misleading descriptions about a new collection for men’s clothing. Trading Standards investigated the complaints from customers and found clothes in their Birmingham store with clear labels on them stating ‘Made in Italy’ when the clothing were actually made in Egypt, India and Romania. Marks & Spencer have admitted five breaches of the Trade Description Act by suggesting items were made in Italy when they evidentially were made in Romania, India and Egypt. So to conclude Marks & Spencer were fined £2,000 per breach and offence.
When the parties agreed and start to form a contract, the seller will make a number of representations about the goods that are being sold. The representations that are stated, provide a description of the product. All the descriptions of goods and services must be accurate and not misleading. If there are misleading descriptions , this can lead to sever consequences as this is against the law because they are 'false trade descriptions'. The Trade Description Act 1968 enables criminal offences for individuals who mislead consumers, by using a false description. A description of goods that are sold or hired must be accurate. The description can either b: an illustration, in and advertisement, in writing or given orally such as a sales pitch. In the description, it must cover a range of factors which include: endorsements, composition, quantity and size, method, place and date of manufacture.
Contracts for consumer goods and services are strictly protected, and any businesses that break this will be in breach of contract and in certain cases, have to face criminal prosecution. If the contract is offering a supply of services, accommadation or facilities, it is a criminal offence for the transferor to make a misleading or false statement. This also includes making a statement about the provision, location, approval of the services, nature, manner, facilities and accommodation. Breaking the Trade Description Act is a criminal offence and if a person is found breaking it, they could receive an unlimited fine, or much worse, being imprisoned for up to two years. Also, by breaking the Trade Description Act it also makes the person liable for misrepresentation for which damages may also be awarded.
When the parties agreed and start to form a contract, the seller will make a number of representations about the goods that are being sold. The representations that are stated, provide a description of the product. All the descriptions of goods and services must be accurate and not misleading. If there are misleading descriptions , this can lead to sever consequences as this is against the law because they are 'false trade descriptions'. The Trade Description Act 1968 enables criminal offences for individuals who mislead consumers, by using a false description. A description of goods that are sold or hired must be accurate. The description can either b: an illustration, in and advertisement, in writing or given orally such as a sales pitch. In the description, it must cover a range of factors which include: endorsements, composition, quantity and size, method, place and date of manufacture.
Contracts for consumer goods and services are strictly protected, and any businesses that break this will be in breach of contract and in certain cases, have to face criminal prosecution. If the contract is offering a supply of services, accommadation or facilities, it is a criminal offence for the transferor to make a misleading or false statement. This also includes making a statement about the provision, location, approval of the services, nature, manner, facilities and accommodation. Breaking the Trade Description Act is a criminal offence and if a person is found breaking it, they could receive an unlimited fine, or much worse, being imprisoned for up to two years. Also, by breaking the Trade Description Act it also makes the person liable for misrepresentation for which damages may also be awarded.
UNIT 21 M3- PASSED
Analyse the remedies available for a business provider in the even of breach of contract for the supply of goods or services
When one of the parties breaks the terms and conditions of the contract, then the other party is injured and they will be able to gain some form of compensation for the loss of the contract. This is a remedy and is aimed to help the injured party. They can be writtine within the contract or they can exist as equitable remedies, which come from the historical idea of having equity and fairness. There are multiple remedies available for the breach of contract, which include; damages, lien, rejection, mitigating loss, injunction, specific performance, reservation of title and resale.
Damages is the most commonly used remedy, as it can be split into two types: Liquidated and unliquidated damages. For liquidated damages, it is quite common for parties to agree the amount of damages that will be paid in an event of a breach of contract. An example of agreed damages is a holiday booking confirmation form. Unliquidated damages are aware for breach of contract where there is no piror agreement between the parties as to the amount of damages. The aim of unliquidated damages is to put the person in the position they would have been in if the contract was carried out correctly. Therefore, the damages are only designed to compensate people who have suffered with loss. The court have specific guidelines for awarding damages such as; damage can only include sums for financial loss, damage to property, personal injury and distress, dissapointment and upset caused by the claimant. Although, an injured party cannot necessarily recover damages for every kind of loss.
A lien is a right to retain possession of the goods until the contract has been paid. An example of this is if a person leaves a TV controller to be fixed. There is a contract formed in order for the controller to be fixed and the owner of the TV controller will be paying for it. The man who is fixing the controller now has a lien over the TV and can retain posesion until the bill is paid. Therefore, the lien holder has rights of possession over the owner, but only as a means of security. This is a good remedy, because it can guarantee you will get paid by taking possession over an item. Although, a problem of using a lien is that, an items posession is legal allowed to be nanded over with its owners permission.
Rejection is when a party who is the victim of a breach of contract could reject the whole contract all together. This could happen in the circumstances where the contract falls because of the inability to deliver on time, delivering the wrong quantity or delivering goods of poor quality. Even if the goods are rejected, the injured party will still be allowed to claim damages.
Mitigation of loss is when a breach of contract has happened and the innocent party is under a duty of mitigate. Mitigation is the idea of a person trying to regain as much of their loss as they possibly can, if the contract is in breach. For example, if a seller whose goods or services have been rejected must attmeply to get the best price for them elsewhere. A good thing about using mitigation of loss as a remedy is that, the provider will have little loss in the process, maybe even none. Although, some people wouldn't use mitigation of loss, because it can be extremely time consuming to go and look for the best price elsewhere.
An injunction is an order from the court requiring the part at fault to keep the contract. They are used to mainly enforce promises in certain contracts. An example of this is an employment contract which restricts employees from working in a similar capacity for rival employers. There are three different types of injunctions such as; Interlocutory injunction, prohibitory injunction and mandatory injunction. An interlocutory injunction is a temporary type of injunction that only lasts until the end of the trail in court. This type of injunction helps to keep things okay until the final hearing. Secondly, a prohibitory injunction tells the defendant not to do something when a breach of contract has happened. This type of injunction is used to help stop an act which may possibly cause a loss to the party who is involved. Lastly, a mandatory injunction requires the defendant to take action, which would counterbalance the effects of the breach of contract. This type of injunction is helpful as a remedy because the party who has breached the contract has to resolve the problem with the promise which was written within the contract.
Specific performance is an equitable remedy, which is granted as an alternative to damages in the cases then damages aren't considered an adequate solution. It requires the party in breach of contract to carry out their contractual promises. This type of remedy may be used when a person is compelled to perfrom a contractual obligation, e.g. a kids entertainer who breaches his contract for a childs birthday party. An advantage to using specific performance, as a remedy in the breach of contract is that, the party who is the victim gets the service that they paid for to resolve the issue. However, a problem with using it is that it doesn't compensate for the loss because of the breach of contract.
To conclude, I feel damages are extremely suitable to use as a remedy, because they are pre written into the contract beforehand without discussion. Furthermore, liens provide the injured party guarantee payment which is really useful. Rejection is an acceptable remedy to use because the injured party will still be allowed to claim damages, even if the goods are rejected. Mitigation of loss isn't the most suitable remedy to use, because the injured party have to try to regain as much loss as they can themselves. Also, they get no compensation for doing so. However, injunction is an acceptable remedy to use due to it allowing all the terms of the original contract to stay the same. There are three types of injunction, and all three types are appropriate remedies to use. Lastly, specific performance is a suitable remedy as it allows the party who is the victim to get the service that they paid for to resolve the issue.
Analyse the remedies available for a business provider in the even of breach of contract for the supply of goods or services
When one of the parties breaks the terms and conditions of the contract, then the other party is injured and they will be able to gain some form of compensation for the loss of the contract. This is a remedy and is aimed to help the injured party. They can be writtine within the contract or they can exist as equitable remedies, which come from the historical idea of having equity and fairness. There are multiple remedies available for the breach of contract, which include; damages, lien, rejection, mitigating loss, injunction, specific performance, reservation of title and resale.
Damages is the most commonly used remedy, as it can be split into two types: Liquidated and unliquidated damages. For liquidated damages, it is quite common for parties to agree the amount of damages that will be paid in an event of a breach of contract. An example of agreed damages is a holiday booking confirmation form. Unliquidated damages are aware for breach of contract where there is no piror agreement between the parties as to the amount of damages. The aim of unliquidated damages is to put the person in the position they would have been in if the contract was carried out correctly. Therefore, the damages are only designed to compensate people who have suffered with loss. The court have specific guidelines for awarding damages such as; damage can only include sums for financial loss, damage to property, personal injury and distress, dissapointment and upset caused by the claimant. Although, an injured party cannot necessarily recover damages for every kind of loss.
A lien is a right to retain possession of the goods until the contract has been paid. An example of this is if a person leaves a TV controller to be fixed. There is a contract formed in order for the controller to be fixed and the owner of the TV controller will be paying for it. The man who is fixing the controller now has a lien over the TV and can retain posesion until the bill is paid. Therefore, the lien holder has rights of possession over the owner, but only as a means of security. This is a good remedy, because it can guarantee you will get paid by taking possession over an item. Although, a problem of using a lien is that, an items posession is legal allowed to be nanded over with its owners permission.
Rejection is when a party who is the victim of a breach of contract could reject the whole contract all together. This could happen in the circumstances where the contract falls because of the inability to deliver on time, delivering the wrong quantity or delivering goods of poor quality. Even if the goods are rejected, the injured party will still be allowed to claim damages.
Mitigation of loss is when a breach of contract has happened and the innocent party is under a duty of mitigate. Mitigation is the idea of a person trying to regain as much of their loss as they possibly can, if the contract is in breach. For example, if a seller whose goods or services have been rejected must attmeply to get the best price for them elsewhere. A good thing about using mitigation of loss as a remedy is that, the provider will have little loss in the process, maybe even none. Although, some people wouldn't use mitigation of loss, because it can be extremely time consuming to go and look for the best price elsewhere.
An injunction is an order from the court requiring the part at fault to keep the contract. They are used to mainly enforce promises in certain contracts. An example of this is an employment contract which restricts employees from working in a similar capacity for rival employers. There are three different types of injunctions such as; Interlocutory injunction, prohibitory injunction and mandatory injunction. An interlocutory injunction is a temporary type of injunction that only lasts until the end of the trail in court. This type of injunction helps to keep things okay until the final hearing. Secondly, a prohibitory injunction tells the defendant not to do something when a breach of contract has happened. This type of injunction is used to help stop an act which may possibly cause a loss to the party who is involved. Lastly, a mandatory injunction requires the defendant to take action, which would counterbalance the effects of the breach of contract. This type of injunction is helpful as a remedy because the party who has breached the contract has to resolve the problem with the promise which was written within the contract.
Specific performance is an equitable remedy, which is granted as an alternative to damages in the cases then damages aren't considered an adequate solution. It requires the party in breach of contract to carry out their contractual promises. This type of remedy may be used when a person is compelled to perfrom a contractual obligation, e.g. a kids entertainer who breaches his contract for a childs birthday party. An advantage to using specific performance, as a remedy in the breach of contract is that, the party who is the victim gets the service that they paid for to resolve the issue. However, a problem with using it is that it doesn't compensate for the loss because of the breach of contract.
To conclude, I feel damages are extremely suitable to use as a remedy, because they are pre written into the contract beforehand without discussion. Furthermore, liens provide the injured party guarantee payment which is really useful. Rejection is an acceptable remedy to use because the injured party will still be allowed to claim damages, even if the goods are rejected. Mitigation of loss isn't the most suitable remedy to use, because the injured party have to try to regain as much loss as they can themselves. Also, they get no compensation for doing so. However, injunction is an acceptable remedy to use due to it allowing all the terms of the original contract to stay the same. There are three types of injunction, and all three types are appropriate remedies to use. Lastly, specific performance is a suitable remedy as it allows the party who is the victim to get the service that they paid for to resolve the issue.
UNIT 21 D2
Evaluate the statutory protection given to a consumer in their dealings with a business and the remedies available
The businesses in the past were free to create contracts on whatever terms they wished. The law never stepped in to protect parties who signed into bad bargains. Although, due to businesses becoming more powerful, they have stronger bargaining position and Parliament have passed ore laws that have had an impact on business contracts. The Unfair Contract Terms Act 1977 is a very important piece of legislation intended to protect innocent parties form unfair exclusion clauses such as; 'car parked at owners risk', 'the management accepts no responsibility for loss or damage'. The act ensures that such clauses satisfy the test of reasonableness by making sure that those who are relying on them for protection dispapy such signs adequately so users know of their existence.
Although, there are some contracts where the act doesn't apply, which include; insurance, land, patents or copyrights, company promtions, shares and debentures. Exclusion clauses under the act are regulated in different ways; they are made subject to a test of reasonableness or the other way is that they are rendered void and ineffective. Both of these remedies are available to the customer. Although, these remedies only compensate if the consumer has an experience of loss. Liquidated damages are already discussed within the contract, whereas unliquidated damages are not already discussed.
Laws are put into place to protect consumers and businesses in case there is a breach of contract. Damages are split into two types, liquidated and unliquidated damagers. Liquidated damages are most common for parties, because they are discussed and agreed in advance on the amount of damages that will be paid in the event of a breach of contract. An example of a common form of agreed damages can be found in most holiday booking confirmation forms. On the other hand, unliquidated damages are damages that are awarded for breach of contract where there is no prior agreement between the parties as to the amount of damages to be awarded. Unliquidated damages are designed to compensate only for loss suffered. This means that if no loss has been suffered, the damages awarded will only be nominal to recognise that there has been a breach of contract.
There are many various remedies that are available for just consumers. One of these is rejection, which is where the contract fails because of the inability to deliver on time, delivering the wrong quantity or delivering goods of poor quality. Even if the consumer reject the goods, the injured party will still be allowed to claim damages. Furthermore, specific performance is another remedy to protect the consumer. This is equitable remedy which is granted as an alternative to damages in cases in which damages are not considered an adequate solution. This type of remedy may occur when a person is forced to perform a contractual obligation. An example of this could be, a DJ who breaches his contract for a personal performance at a nightclub.
Injunction is a remedy which is available for both the consumer and the business. An injunction is an order by the court which requires the party at fault to keep to the contract. They are commonly used to enforce promises in certain contract. An example could be, an employment contract which restricts employees from working in a similar capacity for rival employers. Damages can be aware to both the consumer and the business, however they are usually only offered to the smaller party rather than a larger business.
Additionally, a remedy which is specifically available for the business is a lien. This is the right to retain possession of the goods until the contract fee has been paid. An example of this would be, if a person leaves a television set to be repaired. There is a contract which has been formed in order for this repair to take place. The television technician now has a lien over the television and can retain possession of it until the bill for the repair is paid.
Evaluate the statutory protection given to a consumer in their dealings with a business and the remedies available
The businesses in the past were free to create contracts on whatever terms they wished. The law never stepped in to protect parties who signed into bad bargains. Although, due to businesses becoming more powerful, they have stronger bargaining position and Parliament have passed ore laws that have had an impact on business contracts. The Unfair Contract Terms Act 1977 is a very important piece of legislation intended to protect innocent parties form unfair exclusion clauses such as; 'car parked at owners risk', 'the management accepts no responsibility for loss or damage'. The act ensures that such clauses satisfy the test of reasonableness by making sure that those who are relying on them for protection dispapy such signs adequately so users know of their existence.
Although, there are some contracts where the act doesn't apply, which include; insurance, land, patents or copyrights, company promtions, shares and debentures. Exclusion clauses under the act are regulated in different ways; they are made subject to a test of reasonableness or the other way is that they are rendered void and ineffective. Both of these remedies are available to the customer. Although, these remedies only compensate if the consumer has an experience of loss. Liquidated damages are already discussed within the contract, whereas unliquidated damages are not already discussed.
Laws are put into place to protect consumers and businesses in case there is a breach of contract. Damages are split into two types, liquidated and unliquidated damagers. Liquidated damages are most common for parties, because they are discussed and agreed in advance on the amount of damages that will be paid in the event of a breach of contract. An example of a common form of agreed damages can be found in most holiday booking confirmation forms. On the other hand, unliquidated damages are damages that are awarded for breach of contract where there is no prior agreement between the parties as to the amount of damages to be awarded. Unliquidated damages are designed to compensate only for loss suffered. This means that if no loss has been suffered, the damages awarded will only be nominal to recognise that there has been a breach of contract.
There are many various remedies that are available for just consumers. One of these is rejection, which is where the contract fails because of the inability to deliver on time, delivering the wrong quantity or delivering goods of poor quality. Even if the consumer reject the goods, the injured party will still be allowed to claim damages. Furthermore, specific performance is another remedy to protect the consumer. This is equitable remedy which is granted as an alternative to damages in cases in which damages are not considered an adequate solution. This type of remedy may occur when a person is forced to perform a contractual obligation. An example of this could be, a DJ who breaches his contract for a personal performance at a nightclub.
Injunction is a remedy which is available for both the consumer and the business. An injunction is an order by the court which requires the party at fault to keep to the contract. They are commonly used to enforce promises in certain contract. An example could be, an employment contract which restricts employees from working in a similar capacity for rival employers. Damages can be aware to both the consumer and the business, however they are usually only offered to the smaller party rather than a larger business.
Additionally, a remedy which is specifically available for the business is a lien. This is the right to retain possession of the goods until the contract fee has been paid. An example of this would be, if a person leaves a television set to be repaired. There is a contract which has been formed in order for this repair to take place. The television technician now has a lien over the television and can retain possession of it until the bill for the repair is paid.
