CRA 2015

Question 1

Parts of the CRA 2015

Answer 1

• Part I deals with consumer contracts for goods, digital content, and services.
• Part II regulates unfair terms
• Part III is of a miscellaneous and general nature.

Question 2

Definition of consumer

Answer 2

‘an individual acting for purposes that are wholly or mainly outside that individual’s trade, business, craft or profession.’
- where a trader claims that an individual was not acting for purposes wholly outside the individual’s trade, business, craft or profession, then it is for the trader to prove it.

Question 3

Definition of a trader

Answer 3

‘a person acting for purposes relating to that person’s trade, business, craft or profession’

Question 4

Implied terms: contracts for goods

Answer 4

(a) Goods should be of a satisfactory quality (s 9)
(b) Goods should be reasonably fit for any purpose which the consumer makes known to the trader that the customer intends to use the goods for (s 10)
(c) Where goods are sold for description, the goods should match that description (s 11)

Question 5

Implied terms: contracts for digital content

Answer 5

(a) Should be of satisfactory quality (s 34)
(b) Should be reasonably fit for purpose (s 35)
(c) Should match any description of it given by the trader to the consumer (s 36)

Question 6

What makes the quality of digital content satisfactory

Answer 6

‘the quality of digital content is satisfactory if it meets the standard that a reasonable person would consider satisfactory.’
- a reasonable person would take accounts of matters of description and price together with ‘all other relevant circumstances’ (s 24(2)(c)) including ‘any public statement about the specific characteristics of the digital content made by the trader, the producer or any representative of the trader or producer’

Question 7

Implied terms: contracts for services

Answer 7

(a) That the service is performed with reasonable care and skill (s 49)
(b) That (where a price has not been agreed) a reasonable price is to be paid (s 51); and
(b) That (where a time has not been fixed) the service is provided within a reasonable time

Question 8

s 50(1)

Answer 8

provides that anything that is said or written to the consumer, by or on behalf of the trader or the service is to be included as a term where it is taken into account by the consumer (a) when deciding to enter into the contract or (b) when making any decision about the service after entering into the contract

Question 9

Remedies: Contracts for goods

Answer 9

Where the goods sold to a customer fail to meet any of the requirements in s 9, s 10, s 11, then the goods are regarded as non-conforming. Where the goods are non-conforming, there are three remedial options:

(a) The short term right to reject
(b) The right to repair or replacement
(c) The right to a price reduction or the final right to reject.

Question 10

Remedies: Contracts for goods, the short time right to reject

Answer 10

Available to the consumer for 30 days running from the time (i) that ownership has passed and (ii) the goods have been delivered and (iii) in cases where the trader is required to install the goods or take other action to enable the consumer to use the goods, the trader has notified the consumer that the required steps have been taken (s 22)

Question 11

Remedies: Contracts for goods, the right to repair or replacement

Answer 11

Available unless repair or replacement is unfair or disproportionate (s 23)

Question 12

Remedies: Contracts for goods, right to price reduction or final right to reject

Answer 12

• Not entitled to both
• In either case, the remedy can only be exercised (a) after one repair or replacement, the goods do not conform; (b) the consumer can require neither repair nor replacement because it is unfair or disproportionate, or (c) the consumer has required the trader to repair or replace the goods, but the trader is in breach of the requirement to do so within a reasonable time
• general rule that where the final right to reject is exercised within 6 months, there should be a full refund with no deduction for use (but this does not apply to motor vehicles)
• Consumers cannot treat the contract as at an end as a result of the breach of a term implied by ss 9, 10 or 11, save to the extent set out in the Act.

Question 13

Remedies: contracts for digital content

Answer 13

S 42 provides that where the digital content is non-conforming in breach of the terms implied by ss 34, 35 and/or 36, there are two remedial options:

• The right to repair or replacement
• The right to price reduction

Question 14

s 42(9)

Answer 14

‘digital content which does not conform tot he contract at any time within the period of six months beginning with the day on which it was supplied must be taken not to have conformed to the contract when it was supplied’

Question 15

Remedies: contracts for digital content: right to repair or replacement

Answer 15

S 43(2)(a): required to repair or replace 'within a reasonable time and without significant inconvenience to the consumer' 
s 43(3): precludes the customer from requiring repair or replacement where this would be impossible or disproportionate

Question 16

Remedies: contracts for digital content: right to price reduction

Answer 16

Right only exercisable where the consumer cannot either require repair or replacement or where the trader has failed to repair or replace the digital content within a reasonable time and without significant inconvenience (s44) .

Question 17

Remedies: contracts for digital content: right to refund

Answer 17

s 45: the right to receive a refund of all money within 14 days

Question 18

Where non-compliant digital content causes damage to a device or to other content

Answer 18

s 46: consumer is entitled to repair or a compensatory payment

Question 19

Remedies: contracts for services

Answer 19

Section 54: where the services are non-conforming in the breach of reasonable care and skill (s 49), there are two remedial options:

(a) the right to require repeat performance, and
(b) the right to a price reduction.
- s 55(2)(a) - repeat performance has to be within a reasonable time and without significant inconvenience to the consumer
- s 56(3) - a price reduction becomes available only where repeat performance is impossible or where the trader has failed to provide repeat performance within a reasonable time and without significant inconvenience to the consumer
- where the services are non-conforming in breach of the term implied by s 52 (performance within a reasonable time), the remedial option is right to a price reduction.

Question 20

Exempting liability for death or personal injury resulting from negligence

Answer 20

Section 65(1) CRA: 'A trader cannot by a term of a consumer contract or by a consumer notice exclude or restrict liability for death or personal injury resulting from negligence' 
Negligence defined same way as under UCTA 
Breach of s 49 CRA would be negligence for the purposes of the CRA

Question 21

Exempting liability for breach of statutory implied terms about goods

Answer 21

Section 31 any attempt to exclude or restrict liability for ss 9-11 will not be binding on the consumer

Question 22

Exempting liability for breach of statutory implied terms about digital content

Answer 22

Section 47 any attempt to exclude or restrict liability for ss 34-36 will not be binding on the consumer

Question 23

Exempting liability for breach of statutory implied terms about services

Answer 23

Section 57: any attempt to entirely exclude Section 49 will not be binding on the consumer

Question 24

Anti-avoidance provisions

Answer 24

same as UCTA but s 72 and s 31 (2)

Question 25

Regulation of terms other than exemption clauses

Answer 25

• any term in a consumer contract is not binding on the consumer if it is unfair (s 62)
• terms specifying the main subject matter of the contract cannot be assessed for fairness, nor can the courts assess the fiarness of the price (s 64)
• a term is unfair if it causes significant imbalance in the parties’ rights and obligations under the contract to the detriment of the customer (s 64(4)) This is judged at the time the contract is entered into.
• Part 1 of Schedule 2 contains a list of terms which ‘may be regarded as unfair.’ It includes any term inappropriately excluding or limiting the legal rights of the consumer in relation to inadequate performance by the trader of any contractual obligations