class 2 Flashcards
where does the notion of caveat emptor (buyer beware) come from? what is the rule about?
in the Hop related case, why did the plaintiff lose.
Until 1856, in Scotland, a seller guaranteed a buyer against all *. but in the same year, the law was changed so that if the seller did not know that the goods were defective then the buyer had no recourse against him unless there was *.
Next, in 19th Century, even if you do not have knowledge, you may be still liable.
Which year UK’s SGA passed
CL;a buyer has a remedy only if there’s an express warranty.
the plaintiff lost because he had an opportunity to inspect the quality of hops and he should have insisted upon an express warantty.
latent defects
an express wuaranty
1893.
true or false?
A.the case of Junes v Bright (1892) is the origin of the s19 of NSW Sale of Goods Act.
B. Fair trading Acts replicate many provisions in the TPA.
C. SGAs in states are no longer identifcal to UK SGA.
D. the statutory implied term in TPA protects all the buyers.
E: TPA: gives consumer right of action nto just against seller but also against the manufacturers of the goods
F: under SGA, a buyer may be able to recover from the party who financed the purchase of the goods .
G> SGA concerns with safety of the goods.
H: under TPA, the liability for goods squarely rests on seller.
D is incorrect; only protect buyers who is consumers. by contrast, SGA deals with all transactions between buyers and sellers.
E: correct: Pt V Div 2A.
F incorrect, under TPA s73, a consumer
G: no TPA:
H: wrong, squarely on manufacturers.
thre are essentially two regimes for liability of goods, what are they? the first one is basically to overcome * problem. the second one is a * regime?
First, concern with ensuring the buyer gets what the buyer bargained for. (liability rests on seller). privity.
the second regime is a statutory tort regime, concerns with the safety of the goods.
the first and second regimes could be found in both SGA and TPA. is it correct?
no, the second regime can only be found in TPA
what are the three requirements for goods imposed by SGA?
(1) goods corresponding with the descirption that was applied to them,
(2) goods are fit for a particular puprose,
(3) goods are of merchantable quality.
Does liability regime (first regime) under TPA create contractual relationship between the buyer and the manufacturer?
under TPA: a manufacturer will be liable just becdause goods are not safe, correct?
buyer and seller relationship is not important for this type of actions. correct?
No it only creates a right of compensation from manufacturers.
note that also in SGA, same right is created.
no. the liabiliyt of the manufacturer for defective goods is to a person who is injured by or suffers loss because of unsafe goods.
yes.
in Leeks v FXC Corporation (2002), Finn J indicates there’s a distinction between * and *:
He also cited Zaravinos, which said that the rationale behind Div 2A TPA is what?
A deeming provision may result in two manufacturers for the purpose of the proceeding. correct?
are s74A(3) and (4) mutually exclusive?
deemed manufacturer and actual manufacturer
manufacturers rather than retailers should bear the liabiilty for defects in goods.
Yes. a possible scenario would be a foreign manufacturer is a deemed manufacturer by virtue of s74A(3) while the importer also a deemed manufacturer by virtue of s74A(4). TPA contains a scheme of concurrent liability?
No.
which secdtion of TPA defines Consumer?what are the two tiers of the definition of consumer in TPA?
what are the prescribed amount?
what does the exclusion relate to? Both service and goods?
s4B. first tier: the price; if price is not met, then for personal domestic or household use or consumption or the goods consited of a commercial road vehicle (1)(a)(i)and (ii) ;(b) for service.
(2) $40,000
Only goods not service; the exclusion is related to if the purchaser acquires the goods for resupply or for transforming them in production or manufacture he or she is not a consumer.
s 62 of SGA 1923 (NSW) defines “consumer sale”?
In this Part, “consumer sale” means a sale of goods (other than *) by seller in the course of a business where the goods
(a) are of a kind commonly bought for * or *
(b) are sold to a person who does not buy or hold himself or herself out as buying them in the course of business
A sale by auction,
priate use or consumption; and
sometimes, court may conclude with confidence in the absence of evidence as to actual use, that the nature of particular goods is such that they are (not) of a kind ordinarily acquired for personal use. correct?
P756Yes, in Crago v Multiquip
see Carpet Call: Carpet normally for domestic use, even its bought by a business.
who bears the burden of the proof that P is or is not a consumer when the price is below $40,000 and the service is not of a ‘personal, domestic or household ‘ nautre.
the defenant. s4B(3) provides it shall be assumed that the person is a conusmer, unless the contrary is established.
also see Seeley International Pty Ltd v Cintro [2002] P756
supply of aircon, each priced at 848, in total worth 94527 in value, aircons to be used in a motel. The brochure for the parciular model contained a photo of the aircons used in domestic and small office or commercial settings. is the buyer consumer?
Yes, see Q11 P 757. the air cons are goods of a kind ordinarily acquired for personal domestic or household use or consumption.
Q: Service of forklift drive from time to time A entered into contracts with B, B supply to A; whether A is the consumer. the aggregated value exceeding 4,0000 but the value of the particular agreement not. is A a consumer under TPA?
A: yes see Q12. P 757.
The court held that A is entitled to s4B(3) presumption that the agreements were separate and could not be aggregated for calculating the price of the service.
s4B definition of consumer : an objective test is adopted based on the nature of the goods, not the purpose for which they are acquired. correct?
Yes, goods of th ekind “ordinarily” used for …indicates so.
Give an example why under SGA,whether or not a buyer can be classified as a consumer makes a difference.
waiting for answers
TPA does not require supply or representation to a consumer (within TPA Pt V Div 1). correct?
yes, by contrast, in SGA s62(b)
SGA permits the exclusion of liability in commercial sales as well as consumer sales. correct?
No. SGA permits the exclusion of liability in commercial sales but not for most parts of consumer sales. By contrast, TPA prohibits the exclusion of liabiliy in consumer sales.
S68 of TPA makes void any contractual term which excluds, * or * the provisions of * of or the terms of *
restricts modifies
Div2
s75A
Note that TPA s68A which permits the limitation of liability in the supply of business goods in certain circumstances ie ? also particular type of service?
when the supply is of goods or services not for personal , domestic or household use, under s40,000 and not for resupply.
recreational service.
Does s16(3) SGA say that if proerty passes the breach of condition must be treated as a breach of warranty thus confining the buyer to damages. assume they are the same, does it mean the term in question change character and become a warranty for all purpcoses, and in particulear the exclusion of liability?
no., Its about where a contract of sale is not severable and the buyer has accepted the goods or part thereof, the breach of any condition to be fulfilled by the seller
the key fact of the case renders the plaintiffs disentitled to higher right (treat the contract as repudiated) is what?
the plaintiffs resold the giant
In the sainfoin case: the key fact of the case renders the plaintiffs disentitled to higher right (treat the contract as repudiated) is what?
in Wallis Son & Wells v Pratt & Haynes [1910] 2 K B 1003: the plaintiffs resold the giant
