Consumer Protection

Question 1

SGA 1893 & SGSA 1980 - s.12 SGA 1893 Three Terms re Tile of Goods

What is the implied condition?

Answer 1

That the vendor has good title to the goods and thus has a right to sell them.
O’Reilly v Fireman [1942]: term applies even where the seller’s unaware he doesn’t possess any title to the goods.

Question 2

SGA 1893 & SGSA 1980 - s.12 SGA 1893 Three Terms re Tile of Goods

What are the implied warrantys?

Answer 2

Implied warranty that the goods are free from any charges or encumbrances (i.e. there’s no outstanding claims in respect of the goods)
Implied warranty that the purchaser will have the right to quiet possession (i.e. no on will impede the purchaser’s use of the goods).

Question 3

SGA 1893 & SGSA 1980 - s.13 SGA 1893 Sale by Description

What is the implied condition, case on point?

Answer 3

Implied condition goods correspond w description where there’s a contract for sale by description.
Must show the description was considered a vital part of the contract:
Harlingdon v Fine Art [1990]: The description must be influential in the sale so as to become an essential term i.e. a condition of the contract

Question 4

SGA 1893 & SGSA 1980 - s.13 SGA 1893 Sale by Description - Description v Quality

Oscar v Chess Williams [1957]

Answer 4

Held statements made e the age and the mileage of a motor vehicle were not sale by description.

Question 5

SGA 1893 & SGSA 1980 - s.13 SGA 1893 Sale by Description - Description v Quality

Beale v Taylor [1967]

Answer 5

Seller of car advertised it as a ‘herald convertible white 1961’ but the car was really comprised of two cars which had been welded together.
Held to be sale by description even though the buyer saw and examined the car before purchase.
Breach of s.13 implied term even though the seller wasn’t aware of the failure.
Seller also private seller and not a business – no requirement of acting in course of business.

Question 6

SGA 1893 & SGSA 1980 - s.13 SGA 1893 Sale by Description - Description v Quality

Ashington Piggeries Ltd v Christopher Hill [1972

Answer 6

Pig meal was contaminated with a chemical. A argued it didn’t match the description.
Rejected: held the contaminant was a defect in the quality, not a description issue.

Question 7

SGA 1893 & SGSA 1980 - s.14 SGA 1893 Quality of Goods

What is the implied condition?

Answer 7

Implied condition into all contracts where the seller sells goods in the course of a business those goods will be of merchantable quality. Note:
Only applies to sellers in the course of business (not private sellers).
Can be excluded when the defect has been brought to the purchaser’s attention.
Can be excluded when purchaser has inspected and defect would’ve been obvious.

Question 8

SGA 1893 & SGSA 1980 - s.14 SGA 1893 Quality of Goods - Merchantable Quality

What does s.14(3) provide?

Answer 8

S.14(3) Goods are of merchantable quality if they are:
Fit for the purpose or purposes which goods of that kind are ordinarily bought and
As durable as is reasonable in accordance with their description, price and other relevant circs

Question 9

SGA 1893 & SGSA 1980 - s.14 SGA 1893 Quality of Goods - Merchantable Quality

Bernstein v Pamson Motors [1987]:

Answer 9

Held second-hand car would be considered merchantable quality if it could be driven safely, but that much higher expectations were required of a brand new car

Question 10

SGA 1893 & SGSA 1980 - s.14 SGA 1893 Quality of Goods - Merchantable Quality

Marah v Kellehers Ltd [1998]:

Answer 10

Defect in car paintwork was held not to be of merchantable quality.

Question 11

SGA 1893 & SGSA 1980 - s.14 SGA 1893 Quality of Goods - Merchantable Quality

Rogers v Parish [1987]

Answer 11

R bought a brand new range Range Rover worth £160k. It had a faulty engine and gearbox as well as damage to the exterior of the car itself. Dealers tried to repair, but still faulty after 6 months.
Held the car was unmerchantable under the circumstances.

Question 12

SGA 1893 & SGSA 1980 - s.14 SGA 1893 Quality of Goods - Fir for Purpose

General Rule

Answer 12

Seller not liable where he couldn’t reasonably have foreseen the purpose the goods were bought for.
But, S.14(4): If the buyer makes the seller aware of the purpose they’re buying for, there’s an implied condition the goods will be reasonably fit for that purpose (even if not a common one for those goods)
S.14(4): The seller won’t be liable where the buyer chooses not to rely, or it’s unreasonable for them to rely, on the seller’s skill or judgment

Question 13

SGA 1893 & SGSA 1980 - s.14 SGA 1893 Quality of Goods - Fir for Purpose

Wallis v Russell [1902]

Answer 13

W went to fish fishmonger to purchase two fresh crabs. R had no fresh crabs left but offered to sell two boiled crabs. W bought them, which cause him food poisoning.
Held R knew the crabs were going to be eaten and despite the fact the defect wasn’t obvious from a reasonable inspection, R held liable: goods not fit for purpose they were bought.

Question 14

SGA 1893 & SGSA 1980 - s.14 SGA 1893 Quality of Goods - Fir for Purpose

Griffiths v Peter Conway [1929]

Answer 14

Seller not liable for selling coat where buyer had v sensitive skin and suffered a reaction. Coat was fit for its common purpose, not the buyers. Seller can’t exercise skill if doesn’t know the special reqs!

Question 15

SGA 1893 & SGSA 1980 - s.14 SGA 1893 Quality of Goods - Fir for Purpose

Draper v Rubenstein [1925]

Answer 15

A butcher bought cattle that were then discovered to be unfit for human consumption.
Rejected claim against R on basis he’d relied on his own superior skill and knowledge as butcher.

Question 16

SGA 1893 & SGSA 1980 - s.14 SGA 1893 Quality of Goods - Fir for Purpose

Jewson Ltd v Boyhan [2003]

Answer 16

Held buyer did not rely on skill and judgment of the seller when buying boilers for apartments. He brought an action as boilers did not give the apartment a high energy rating and held to be a particular purpose of the buyer and not the common purpose. Not reasonable to rely on skill of seller here.

Question 17

SGA 1893 & SGSA 1980 - s.14 SGA 1893 Quality of Goods - Fir for Purpose

James Elliot Construction Ltd v Irish Asphalt Ltd [2014]

Answer 17

Irish SC held goods must be fit for all of their common purposes, but not every purpose:
IA contracted to supply infill to J. Court had to decide whether an exemption clause was incorporated into the contract and whether the infill was fit for purpose under s.14.
The infill was not fit for every purpose the buyer wanted it for, but held purpose must be indicated by the buyer. Not done. Since fit for other purposes, held not to be unfit i.e. merchantable quality.
Court held a good must be fit for all of its common purposes.

Question 18

SGA 1893 & SGSA 1980 - s.15 SGA 1893 Sale by Sample

General implied condition and rules?

Answer 18

Implied condition that if goods are sold by sample, the quality of the goods correspond to the sample.
Buyer has an implied right to examine the sample to make judgement on the quality of the goods.
Where both sample and bulk are of unmerchantable quality, the seller will be liable for both.
But if it’s possible to discover a defect upon inspection, the seller may escape liability.

Question 19

SGA 1893 & SGSA 1980 - Applicability of Exclusion Clauses

General rule?

Answer 19

S.12 SGA 1893 can never be contracted out of. S.55(3) deems any term trying to do so void.
If the buyer is a consumer, s.55(4) says s.13, 14 and 15 can never be contracted out of
If not consumer, s.55(4) EC is enforceable if it’s established the term is ‘fair and reasonable’.
S.40 SGSS 1980 provides implied terms can be contracted out of in supply of service contracts. But if consumer, term must be fair & reasonable and must show brought to consumer’s attention.

Question 20

SGA 1893 & SGSA 1980 - Applicability of Exclusion Clauses - Fair and Reasonable

What are the requirements of fairness and reasonableness?

Answer 20

The term must be such that it was, or ought reasonably to have been, known to or in the contemplation of the parties at the time they entered into the contract. The court has regard to:
The bargaining power of the parties
The availability of alternative methods of obtaining goods/securing services
Whether the party was induced into entering the contract
Whether the customer had knowledge (actual or constructive) of the term (having regard to custom of trade or through a course of dealing)
Whether compliance with an obligation placed on the consumer was practicable
Whether or not the goods in question were made to the customer order.

Question 21

SGA 1893 & SGSA 1980 - Applicability of Exclusion Clauses - Fair and Reasonable

George Mitchell Ltd v Finney Seeds Ltd [1983]

Answer 21

G bought what it believed was Dutch cabbage seeds from F. What was really supplied was a different seed that was defective. The crop failed and G sued.
Held a clause that limited liability for defective seeds was unfair and unreasonable.
Court considered the fact that there was a serious loos involved and that F had compensated other wronged parties and was in a stronger position to get insurance to cater for such losses.

Question 22

SGA 1893 & SGSA 1980 - Applicability of Exclusion Clauses - Fair and Reasonable

Edmund Murray Ltd v BP Intl Foundations [1992]

Answer 22

Oil rig built to E’s specification, but, B was hired on basis of their expertise so couldn’t use an exclusion clause to avoid liability when rig was found improperly constructed. Not fair and reas.

Question 23

SGA 1893 & SGSA 1980 - Aftersales Service

What section applies here?

Answer 23

S.12 SGSS: Implied warranty re contracts goods. Spare parts + sufficient aftersales
services will be provided for period specified by seller / if not specified, then reasonable period

Question 24

SGA 1893 & SGSA 1980 - Guarantees

What is the rule and section?

Answer 24

S.15 SGSS 1980 defines guarantees. A guarantee must:
Clearly specify the goods to which it relates and its duration.
Be legible and state the name and address of the person supplying it.
Detail the procedure to be followed to make a claim under it.

Question 25

SGA 1893 & SGSA 1980 - Terms in Contract for Supply of Services

General rule and the section?

Answer 25

S.39 SGSS 1980 implies a number of terms into the contract including:
The supplier has the required skills to supply the services
The supplier will use skill, care and diligence in providing the services
The materials used are sound and fit for the purpose they’re being used.

Question 26

SGA 1893 & SGSA 1980 - Remedies

General rule for each of the sections?

Answer 26

Sections 12, 13 and 14 are conditions: Buyer can reject goods, claim refund and claim damages.
BUT s.11(3) states a buyer can lose this right where he’s deemed to have accepted the goods. S.35:
(a) He imitates acceptance (b) He does an act inconsistent with ownership of seller
(c) He keeps the goods without good and sufficient reason without rejecting them.

Question 27

EC (Unfair Terms in Consumer Contracts) Regulations 1995

General Outline?

Answer 27

This incorporated the Unfair Contract Terms Directive 93 into Irish law. Its aim is to ensure contracts concluded between businesses and consumers not contain unfair terms (Business 2 Consumer only).

Question 28

EC (UT in CC) Regulations 1995 - Contracts falling within Regulation

General Rule?

Answer 28

It applies to any contractual term which has not been “individually negotiated” in a consumer contract i.e. terms ‘drafted in advance’ such that the consumer couldn’t influence the substance of the term.

Question 29

EC (UT in CC) Regulations 1995 - Contracts falling within Regulation

McCord v ESB [1980]

Answer 29

Re standard form contract ESB issued with standard terms and conditions for supply of elec.
Noted M was forced by necessity into signing the contract as ESB had monopoly on supply
Held terms of such standard contracts must be construed in the consumer’s favour.

Question 30

EC (UT in CC) Regulations 1995 - Test for Unfairness (Reg 3(2))

What do parts (a) and (b) provide and what does McDermott comment?

Answer 30

An indicative but non-exhaustive list of terms that may be regarded as unfair are set out and include:
(a) Terms that exclude/limit liability in the event of death or personal injury due to omission of seller
(b) Terms requiring a consumer who fails to fulfil obligation to pay disprop high compensation.
In order to be unfair the term must be demonstrated to have caused:
A significant imbalance in the parties’ rights & obligations to the consumer’s detriment
If there’s such an imbalance, the seller must be shown not to have acted in good faith.
McDermott says ‘SI’ is most likely to be adjudged according to the circumstances.
Good faith is assessed with ref to a number of factors, including: (1) the parties’ relative bargaining power,
(2) if a party was induced (3) nature of the goods (4) circumstances re conclusion of contract

Question 31

EC (UT in CC) Regulations 1995 - Limitation of Application

Rule?

Answer 31

Certain terms may not be assessed for fairness, namely terms that relate to
The definition of the main subject matter of the contract, or
The adequacy of the price and remuneration as against the goods
NB: The focus of the directive is not whether the bargain was fair, but that you’re not bound by unfair
small print. BUT this is a minimum harmonisation directive and Ireland could extend protection!

Question 32

EC (UT in CC) Regulations 1995

Plain intelligible language

Answer 32

However, all the terms (even core ones) must be in “plain intelligible
language” & where there’s any doubt re meaning of a term, it’s interpreted in consumer’s favour

Question 33

EC (UT in CC) Regulations 1995

Effect of Unfair Terms

Answer 33

The unfair term is not binding on the consumer. The contract will continue to
bind the parties if it is capable of continuing without the unfair term.

Question 34

EC (UT in CC) Regulations 1995

Duty of Enforcement

Answer 34

Director of Consumer Affairs can apply to the HC to be granted an order
prohibiting the use of any terms in contracts which are judged to be unfair.

Question 35

EU (Consumer Info, Cancellation & Other Rights) Regs 2013: Consumer Rights Directive

What is the purpose of the directive?

Answer 35

This proposes to standardise the rules for the common aspects of distance and off-premises contracts. It was drawn up in light of the modern marketplace where many contracts can be created online or away
from business premises. It puts a strong emphasis on information requirements.

Question 36

EU (Consumer Info, Cancellation & Other Rights) Regs 2013: Consumer Rights Directive - Article 2 Definitions

What is a distance contract?

Answer 36

Any contract concluded bw trader and consumer under an organised distances sales or service scheme without the simultaneous physical presence of the trader and the consumer w exclusive use of one or more means of distance communication.

Question 37

EU (Consumer Info, Cancellation & Other Rights) Regs 2013: Consumer Rights Directive - Article 2 Definitions

What is an off-premises contract?

Answer 37

Any contract bw trader and consumer that’s (i) concluded in the simultaneous physical presence of both, in a place that’s not the trader’s premises; (ii) for which an offer was made by the consumer in the same circs as (ii); (iii) concluded on the trader’s premises or through a means of distance communication immediately after the consumer was personally addressed in a place that’s not the premises of the trader w physical presence of both; or (iv) concluded during an excursion organised by the trader to promote/sell goods.

Question 38

EU (Consumer Info, Cancellation & Other Rights) Regs 2013: Consumer Rights Directive - Article 2 Definitions

What are goods?

Answer 38

Goods: Any tangible movable items (incl. water, gas and elec when sold for set quantity)

Question 39

EU (Consumer Info, Cancellation & Other Rights) Regs 2013: Consumer Rights Directive - Article 6 & 8

Art 6 Off-Premises Contract

Answer 39

Information required includes: (a) Information on the main characteristics of the good; (b) the identity of the trader, location, address, number; (c) total price to be paid (incl. taxes); (d) arrangements for payment and delivery; (e) duration of contract and conditions for termination.
Trader must also give info on paper / other durable medium if consumer agrees (e.g. webpage).

Question 40

EU (Consumer Info, Cancellation & Other Rights) Regs 2013: Consumer Rights Directive - Article 6 & 8

Art 8 Distance Selling Contract

Answer 40

Provisions are much more flexible. If a contract is completed electronically, it’s sufficient if the detailed info is provided by accessing a line to a website or delivered to an email address.
Other than that, there’s a basic requirement that info be given in plain and intelligible language.

Question 41

EU (Consumer Info, Cancellation & Other Rights) Regs 2013: Consumer Rights Directive - Article 14

Article 14: Right to Cancel

Answer 41

The consumer has the right to withdraw from the contract within 14 days of the event without incurring any costs (goods date = date physically obtained, service = date contract concluded).
If trader doesn’t give info re this right, the right expires 12 months after the ending of the 14 days

Question 42

Report on Legislation Governing the Sale of Goods and Supply of Services (2012)

Carried out by the Sales law Review Group, what did it recommend?

Answer 42

Definition of Goods: Recommended the EU directive definition be adopted i.e. “any tangible moveable item” and incl. electricity, water and gas in the definition of services
Price and Consideration: Recommended removing the minimum value requirement of £10 and removing the money consideration requirement so as to include free promotional goods.
Delivery: Recommended changing reasonable time to 30 days’ requirement for delivery.
Exclusion of Implied Terms
Buyers Remedies: Recommended introducing a right to partial rejection (under SGSS 1980 consumers have to reject the whole goods – no right to retain some of the goods).
Right to Reject: Recommended right to reject be lost where not exercised within 30 days.