SALE OF GOODS Flashcards
1
Q
s.2(1) SOGA
A
a contract for the sale of goods is a contract by which the seller tranfers or agrees to transfer property in goods to the buyer for money consideration called a price.
2
Q
s.2(4)SOGA
A
sale transferred by ownership
3
Q
s.2(5)SOGA
A
intent to transfer ownership at later date
4
Q
hughes v pendragon sabre
A
PS and H have contract for sale of ltd ed of prosche. PS doesn’t have porche. or know he can get one. HELD there was intention to transfer ownership agreement to sell under the def s,2(1) by virtue of s.2(5).
5
Q
s.5(1) CRA
A
a contract is a sales contract if under it
A the trader transfersor agrees to transfer ownership of goods to the consumer.
B. the consumer pays or agrees to pay the price.
6
Q
s.5(2) CRA
A
where goods are manufactured or produced for the trader to supply them for the consumer
( labour in creating goods even if effect to create goods still= contract of goods)
7
Q
5 ELEMENTS FOR CONTRACT OF SALE
A
- 2 parties
- a contract
- transfer of property
- goods
- price
8
Q
s.61(1) SOGA
A
DEFINES BUYER AND SELLER
9
Q
S.1(1) CRA
S.2 CRA
A
S.1(1) DEFINES CRA AS ONLY APPLYING TO TRADER AND CONSUMER
S.2 TRADER DEFINITON
10
Q
WATHELET V GARAGE
A
CRA S.2 includes a trader acting as an intermediary o behalf of a private individual who has not duly informend the consumer of the fact that the owner of the goods is private individual
11
Q
s.2(7) CRA
A
business is defined as including activities of any gov depo including local
12
Q
s. 2(5)CRA
A
a consumer =- and individual acting for puposes that are wholly or mainly outside that indivuals trade business or craft. except an individual buying goods at auction. there is apossibility that a sole trader acting outside profession will be considered a consumer
13
Q
the contract
A
gen principles of contract law apply there must bee consensus in idem parties must have capacity
14
Q
s.3 SOGA
A
capacity rules
15
Q
s.1(2) CRA AND 4 SOGA
A
FORM may be written oral or constituted by parties
16
Q
consumer contracts (info cancellation and additional charges) reg 6 and 7(2) reg 4
A
obligations to consumers in and off premises
food stuffs
medicial product
reg 4 defines consumer the same as CRA
17
Q
reg 5 consumer contracts (info cancellation and additional charges)
A
defines on premises and off premises contract
18
Q
reg 9(1)consumer contracts (info cancellation and additional charges)
A
v. important before consumer is bound by the on premises contract the trader must give/ make available to the consumer in a comprehensible manner certain infor set out in schedule 1
example main characteristics of the goods the total price includings taxes arrangements for payment/ delivery. so if bought washing machine from John lewis who delivers it
19
Q
s.12 CRA
A
the info provided is to be treated as a term of the contract and any change after the contract is entered into is ineffective unless expressly agreed
20
Q
pst energy 7 shipping llc v OW bunker MALTA
A
TRANSFER OF PROPERTY ownership passing seeler of fuel sought payment. had retention of title clause. title of goods was retained until paid for. payment was 60 dasys from delivery. most fuel had been used. so GOODS DID NOT EXIST. TRANFER OF OWNERSHIP WAS NOT INTEGRAL PART. goods leased did not exist NO CONTRACT
21
Q
wood v tui travel
A
TRANSFER OF PROPERTY property cannot pass before ownership passed. as they had been consumed ownership can still pass even if consumable.
22
Q
s.15 CRA
A
TRANSFER OF PROPERTY, also deals with hire purchase.
23
Q
s.2(2) SOGA and 3(5)a CRA
A
contract of sale between one party and another
24
Q
s.2(4)SOGA
A
where the property is transferred in goods from seller to buyer the contract = sale
25
s.2(5) SOGA
where the transfer of property is to take place in the future . contract = an agreement to sell
26
s.5(1) CRA
there is a ssales contract if the trader transfers or agrees to transfer ownership of the goods to the consumer
27
s. 61 SOGA
V. IMPORTANT!!! goods includes all corporeal except money includes crops
28
beta computer systems ltd v adobe computer systems
l. penrose. contract was not sui generis or x in nature but it couldn't be said that it was both. therefore it had elements of soga but it not meet s.61 standard for def of goods
29
st albans da v international computers
breach of software group them together held they met s.62 conditions of SOGA
30
computer asscoiates uk ltd v the soft ware incubator ltd
computer associates. court makes distinction between tangeable and intagabe goods. intagable goods not under s.61 soga thus soga not apply
31
robinson v graves
SUPPLY OF SERVICES commission artisit to paint HELD it was based on working labour not transfer of ownership of paints NOT CONSUMER
32
s.2(8)CRA
goods means any tangable items
33
s.3(3)a CRA
cra not apply to contracts for a trader to supply coins to a consumer for use as currency
34
s.2(1) SOGA
money consideration called a price necessary for soga
35
s.5(1)b cra
infers that price is important to app of cra
36
s.8(1) SOGA
in a commercial contract the price may be set out or may be left to be fixed in a manner agreed by the contract or may be determined by the coursof dealing between the parties
37
s.8(2) (3) SOGA
if no price stipulated in commercial contract = reasonable price = a q of fact
38
glynwed distribution v s koronka &co
has to be fair and justisble to the parties. the parties have to be considered the parties actions pre contracting
39
reg 9 2013
price has to be clearly marked
40
s.4 CRA
passing of property refers to the relevant provisions in SOGA
41
when passing property what is important to distinguish
property(ownership)
| possession
42
s.17 soga
property is transferred to the buyer at such time as the parties to the contract intend it to be transferred.
to determine intention of the parties regard to be had to the terms of the terms of the contract, conduct of the parties and case
43
s.18 SOGA provides 5 rules for ascertaining the intention of the parties as to the passing of proeprty
rule1. unconditional contract for specific goods in deliverable state the property passes when contract made. delivery immaterial
rule 2. contract for sale of spec goods in delivable state but seller bound to WEIGH, MEASURE TEST. PROPERTY DOES NOT PASS UNTIL BUYER HAS NOTICE IT IS DONE.
RULE3. where there is a contract for the sale of specific goods and the seller is bound to do something to the goods of putting them into a deliverable state DOES NOT PASS UNTIL THING IS DONE.
RULE4 goods delivered on approval/ r on sale or return the property passes to the buyer OR does something inconsitant with the sellers ownership.
RULE5 sale by description the property passes with assent of the buyer either EXPRESS OR IMPLIED
44
s.16 soga
unascertained goods contract for unspecified quantity of goods, bought in bulk. in so that the buyer becomes owner in common with other seller/ buyer.
bulk = a collection of goods undivided shares
if you pay for bulk goods you can become 10% owner but not 10% in possesion
exception in s20A soga
45
s.24 soga
seller delivers or transfers the goods in goodfaith. expressly authorised. if a sold goods to b as in contract to be delivered to c as long as b is in good faith
46
Michael gearson v wilkinson
goods subject to a finance arrangement involving a sale and lease back arrangement with a company. the goods were to be treated as constructively delivered to the finance company on the sea . delivery required voluntary act by the person in possession but could by satisfaction by acknowledgement of the rights of the purhesor. the request for an invoice is not itself sufficient to establish contract. was in place where delivery would have taken place. HELD m SHELF IN DIFFERENT CAPACITY S.24 HAD BEEN MET THEIR SALE AND OWNERSHIP SND CONTRUCTIVE DELIVERY WAS VALID TITLE OF T2
47
s.25 SOGA
buyer in possession after the sale. aftermath defeats the retention of title clause
48
four pint garage ltd v carter
```
def c agrees to enter into a contract with freeway garage to buy car. FREEWAY had the car on lease back FPG tried to implement a tention of title clause. freeway never gained possession = constructive delivery.
FPG(believed they had retention of title as it was a lease with freeway)-->freeway(go into liquidation)---> C (believed bought car outright did not know about FPG)
```
49
20(1) SOGA
for commercial sales goods remain at the sellers risk until property in them passes to the buyer but when the property in them is transferred to the buyer the goods are at BUYERS RISK whether the DELIVERY IS MADE OR NOT
50
S.20(2) SOGA
where delivery has been delayed through the fault of either buyer/ seller the goods are at the risk of the party at fault in relation to any loss
51
s.61 SOGA and 59 CRA
define delivery as VOLENTARY transfer of POS (nb: pos not goods) form one person to another.
52
s.27 and 29SOGA
27= duty to deliver
29 sets out rules about delivery.
delivery of goods ontract = is silent seller collect from place of business. 3rd party no delivery to buyer until he states that he has it on his behalf seller has to be reasonable length of time
53
s.28 cra
need to deliver goods no more than 30 days after the day on which the sales contract was entered into unless contract provides
54
s.30SOGA 25 CRA
regarding delivery of wring quantity
55
s.12 SOGA
title to goods. creates an implied term in commercial sales that
12(1)in each case of sale the seller has the right to sell goods
12(2a) the goods are free and will remain free until property pass from any unkown encumbrance to buyer
12(2b) the buyer will enjoy quiet pos of goods in so far may be disturbed by the owner or other person entitled to benefit from encumbrance
s.17 CRA has consumer proctions to the same affect
56
Niblett ltd v confectioners materials co
irrespective of the time the property is to pass, the buyer will enjoy quiet possession of the goods expt if find hidden encumbrance ect.
the buyers found a that the labeling on the tins purchased from the seller infringed a recognised trademark. the tm owners insisted on their rights. THE BUYER SUCCESSFULLY SUED SELLERS IN BREACH OF REQUIREMENT OF QUIET POS
57
s.11 CRA and s.13 SOGA
correspondence with description
58
ashinton piggeries ltd v Christopher hill
sued 3rd party supplier for the haring meal. HELD contract for thos e parties = FAIR QUALITY= NOT PART OF DESCRIPTION
DESCRIPTION IN THEIR CONTRACT = S.13 HARRING MEAL.
terms used to ID goods did not mean it was not a contracted foodstuff.
where the buyer explains to the seller the purpose for which the goods are bought they MUST BE FIT FOR PURPOSE. UNLESS the CIRVUMSTANCES SHOW THAT THE BUYER IS NOT RELYING ON THE SELLERS SKILL AND JUDGEMENT
59
s.14 SOGA and 9 CRA
QUALITY goods supplied in the crs of business. goods supplied are of satisfactory quality.
60
14(2A) SOGA and 9(2)
QUALITY- MEET STD OF REASONABLE PERSON DECRIPTION / PRICE
61
QUALITY OF GOODS 5 FACTORS
```
fitness for all purpose of which goods in q are commonly supplied.
appearance and finish
freedom from minor defects
safety
durability
```
62
lamarra v capital bank plc
satisfactory lease would determine that a manufacturers warrenty= satisfactory
63
14(2C) SOGA 9(4) CRA
implied term of satisfactory quality does not extend to any matter making the goods unsatisfactory1. bringing to buyers attention/ buyer examines goods where it ought to reveal defect
64
macdonald v pollock
The Scottish Court of Session has considered the circumstances in which the obligation that goods should be of "satisfactory quality" will be implied into a contract under section 14 of the Sales of Goods Act 1979.
the definition of a business is now a material issue.
65
s.14(3) SOGA
fitness for a particular purpose. reasonably fit for purpose EXCEPT WHERE THE CIRCUMSTANCES SHOW THAT THE BUYER DOES NOT RELY ON JUDGEMENT OF SELLER
66
JEWSON LTD VBOYHAN
fitness for a particular purpose. reasonably fit for purpose EXCEPT WHERE THE CIRCUMSTANCES SHOW THAT THE BUYER DOES NOT RELY ON JUDGEMENT OF SELLER
67
FLOUR V SHANGHAI ZHENHUA HEAVY INDUSTRIES
FITNESS FOR PARTICULAR PURPOSE IS ASSESSED BY CONSIDERING WHETHER A REASONABLE PERSON IN THE POS OF THE BUYER WOULD CONSIDER THE GOODS FIT FOR PURPOSE. IF EXPERT IN OWN FIELD THE S.10 MAY NOT APPLY
68
S.15 SOGA AND 13 GRA
```
Sale by sample goods must be free from defecr that makes quality unsat that would not be appasrent in reasonable exam
NB 13(2a) excludes any difference between the sample and goods bought to the consumers attention pre the contract
```
69
s.14 CRA
CORRESPONDENCE WITH MODEL. provides that where foods have been sold with refernce to a model seen or examined by the consumer before the contract is entered into the GOODS MUST MATCH THE MODEL EXCEPT IF DIFFERENCES BROUGHT TO CONSUMERS ATTENTION PRE CONTRACT
70
s.15CRA
DIGITAL CONTENT INSTALLATION. good will not conform to contract where installation of goods is part of contract
ie if trader is to install goods and does so incorrectly
71
s.16CRA
DIGITAL CONTENT INSTALLATION
goods do not conform to contract if the goodss are an item that includes digital content and digital does not conform to the contract to supply.
72
s.20 unfair contract terms act 1977
provides that any attempt to exclude or restrict liablity under s.12SOGA = is void
s. 13-15soga = must be FAIR AND Reasonable to be effective
s. 31 CRA provides that a term of a contract is not binding on consumer to the extent that it would exlude or restrict traders liability
s. 9-17and 28-19 CRA. this occurs where the term puports ato RESTICT A RIGHT OR REMEDY
73
s.15B soga
the buyers remedies commercial sales
where the seller breaches any term of the contract the cuyer shall be entitled to claim damages AND if breach material to reject goods delivered
74
wilson v acgo finance
hire purchase- rejet agco = original selkler of trader - rejection not valid. VALID ONLY TO REJECT THE SELLER.
75
Hadley v baxendale
s.53A soga measure of dmaages. estimated loss estimated resulting from breach. loss is difference between the value of goods at the d=time of delivery and value they would have had.
deliverable goods NOT good quality measure damages on delivable goods
76
s.35 SOGA
buyer can loose right to reject if deemed to have accepted the goods in terms of s.35
77
s.35ASOGA
gives the buyer a partial rejection of the goods unless specified in contract this is unavailable
78
UNDER SOGA the buyer has 4 option for material breach
UNDER SOGA
s. 15 Ba accept all goods claim damages
s. 15Bb reject all goods
s. 35A and s.15 Ba reject only some of the discomforting goods and cliam damages
s. 35A reject all of the discomforting goods and keep those that conform
79
s.30 SOGA
sets out what a buyer can do where the wrong quantity of goods is delivered
80
s.51 SOGA
wrongful non- delivery measure of damages = difference between contract price and market price of the goods
81
hughes v pendragon sabre
The defendant promised to make available to the claimant a vintage car if one became available at a price and at a time to be determined. The defendant denied that any contract wth those characteristics could be a contract
82
s.52 SOGA
entitles the buyer to seek specific implement
83
s.19 cra
remedies for buyers in consumer contract
No1 try short term right to reject (9/10/11/13/14/16)
No2 try repair and replacement(9/10/11/13/14/15/16)
No3 try price reduction or final right to reject9/10/11/13/14/15/16/17)
84
s.28 CRA
regarding remedies available where the seller fails to deliver within agreed time
85
s.19(14) and 15 CRA
consumer seeks to exercise a remedy other than short term right to reject the cocnsumer benefits from these sections as they provide that if goods do NOT CONFORM WITHIN 6 MONTHS of delivery they weill be taken to have not conform to the contract ON THE DATE OF DELIVERY except where exstablished they did on delivery.
86
O' FARREL V MORONEY
S48A(4) - if there can be proof (in the autopsy of the bird) that the goods conformed at the time of sale the 6 month rule is rebutted.
87
S.20 AND 22 CRA
SHORT TERM RIGHT TO REJECT.
EXCERCISED 30 DAYS
AFTER OWNERSHIP OR CONDITIONAL SALES AGREEMNT WITHIN CONSUMER HAVING POS + GOODS HAVE BEEN DELIVERED
EXCEPT OIF THEY PERISH!
88
s.22(1) (2)CRA
22(1) shortens short term right to reject by agreemten
| 22(2) lengthens it
89
22(6)(7) CRA
short term right to reject will be extened when consumer agrees to repair or replacement within 30 day or shorter period of rejection
90
s.20(4) CRA
effect of short term right to reject is to bring contract to an end.
91
s.20(5)(6) CRA
right to reject CONSUMER must indicated to the TRADER that he is rejecting the goods and tresting contract at an end. MUST BE CLEAR
92
20(7a) and (15) CRA
SHORT TERM RIGHT TO REJECT. must be given within 14 days of the trader agreeing to refund
93
s.20(7b) and (8) CRA
SHORT TERM RIGHT TO REJECT. the trader must bare all reasonable costs for returning the goods.
94
s.23 CRA
right to repair and replacement. must be done within reasonable time.
23(2) trader bare all costs.
23(3)(4) cannot seek this if costs are unreasonable
23(6) must give reasonable time to repair
23(7) consumer cannot seek their repair or exercise the short term right to reject.
95
s.24 CRA
right to final price reduction/ final right to reject
96
part 4A of consumer protection from unfair trading regs
entered into after 2014. may apply to sales contracts conc between traders and consumers for sale of goods. consumer= an INDIVIDUAL acting outside business. Trader= acting for purpose of business.
97
part 4A of consumer protection from unfair trading regs
prohibited action=
misleading
(false info relating to nature of product, presentation could deceive consumer, would make the consumer make a transactional decision he would not taken otherwise, creates confusion nwith other products, concerns failure by trader to a trader to comply with a commitment, a transactional decision he would have not done otherwise)
98
part 4A of consumer protection from unfair trading regs
prohibited action=
. aggressive conduct
2 (impair the freedom of choice of the onsumer by coercion harrasmenr or undue influence, timeing , local nature and oersitance will be takent into account)
99
part 4A of consumer protection from unfair trading regs
| remedies to prohibited action
27A reg where pohibted practice takes place which is a significant factor in the consumers decision to enter the contract the consumer may seek redress:
27EA RIGHT TO UNWIND CONTRACT (TRADER MUST INDICATE HE REJECTS GOODS MUST BE GIVEN WITHIN 90 DAYS OF THE LATER THE DAY ON WHICH THE CONSUMER ENTERS THE CONTRACT THE GOODS BEING DELIVERED.(goods caoable of being rejected have not been consumed)
A RIGHT TO DISCOUNT
A RIGHT TO DAMAGES
100
part 4A of consumer protection from unfair trading regs
remedies to prohibited action
what is the effect of excercing the right to unwind contract
the contract comes to an end.
the trader must give refun
the consumer must make available the goods for collection by the trader
101
part 4A of consumer protection from unfair trading regs
remedies to prohibited action
right to discount
```
prohibited practice assessed on 3 things:
the bejhavior of trader
the impact on consumer
the time elapsed
where minor discount= 25%
where more sig=50%
where serious=75%
where v.serious=100%
PERCENTAGES DONT APPLY IF:
THE AMMOUNT PAYABLE +5000
THE MARKERT PRICE OF THE PRRODUCT HAS DECREASED
CLEAR EVIDENCE OF MARKET PRICE AND THE AMMOUNT PAYABLE UNDER CONTRACT( instead would use percentage differce)
```
102
part 4A of consumer protection from unfair trading regs
remedies to prohibited action
right to damages
if finacncial loss has occurred that they should not have incurred DOES NOT INCLUDE DAMAGES FOR THE DIFFERENCE IN THE MARKET PRICE AND PRICE PAYABLE
NOT PAYABLE IF TRADER CAN PROVE:
mistake
reliance on info supplied to trader by another
an act or default
an accident
another cause beyond the traders control
THAT THE TRADER TOOK ALL REASONABLE PRECAUSTION AND EXCERCISED DUE DILLIGENCE TO AVOID PROHIBITED PRACTICE
103
s.27 SOGA
CONSUMER/ COMMERCIAL THE BUYERS DUTIES. the corollary of the sellers duty to deliver is the buyers duty to accept and pay
104
s.28 SOGA
CONSUMER/ COMMERCIAL confirms that payment and delivery are concurrent conditions
105
s.10 SOGA
CONSUMER/ COMMERCIAL time not of the essence as regard to payment unless a different intention appears from the contract
106
s.35 SOGA
acceptance of the goods by the buyer THIS ONLY APPLIES TO COMERCIAL SLAES CONTRACTS.
35(1a) intimates to the seller he has accepted them
35(1b) delivered to him and he does anything inconsistent with ownership of them
35(4) lapse of time reasonable without intimating the goods
107
douglas v glenvargil
Must reject goods within a reasonable time.
108
s.35(2) SOGA
when goods are delivered to a buyer who has not examined them the buyer is NOT deemed to have accepted the goods until he has had a reasonable period of examining them to ascertain that they are in conformity with the contract.
109
35(6) SOGA
the buyer is not deemed to have accepoted the goods merely because he ass for or agrees to their repair or under an arrangement with the seller
110
j&h Richie v Lloyd ltd
if the buyer asks the seller to repair the goods the request does not signify acceptance. and even if the goods are delivered to someone else through subsale the buyer may still be able to reject the goods within a reasonable time
111
quote by goode on sellers remedies
the sellers remedies for breach by the buyer fall broadly into two groups: those which enable the seller if he wishes to disengange from the transaction and those which assume continuance of the contract
112
s.49 SOGA
entitles the seller to raise an action for price
113
s.50 SOGA
the seller may cliam damages for non acceptance
| measure of damages is estimated loss directly and naturallrly resulting from breach. (difference in price)
114
what is the effect of final right to reject
V. IMPORTANT. no time linit for using final right to reject for consumers.
after repair and replacement the goods do not conform to the contract
because repair and replacement are impossible
the consumer has sought repair or replacement and trader has failed tot do so within a reasonable time and without significant inconvience to the consumer s24(5)
115
s.24(8)(9)cra
if the consumer uses the goods then any refund theriugh final right to reject may be reduced EXCEPT WHERE TRADER FAILED TO COLLECT THEM
116
s.24(10)cra
no reduction for usage will be made if final right to reject excersiced within foirst 6months of ownership passing UNLESS IF MOTOR VEHICLE
117
s.21 and 25 CRA
there is a partial right to reject for wrong delivery/ wrong quantitily
118
19(9) CRA
makes it clear that the remedies set out in CRA do not prevent the consumer from sekeing other remedies for breach of the sales contract which may include dmaages or specific persformance. Howeverr cannot use a abreach of the CRA to justify that.
119
s.37CRA
IF buyer does not take goods within reasonable time after being requested by seller to take delivery he is liable to seller. for delivery/ holding of goods
120
s.39 and 41CRA
remedies right of retention/ lien
121
43CRA
lien can be lost
122
44CRA
stoppage in transit when buyer is insolven
123
48 CRA
right of resale
124
ecommerce 2002
```
when sellers wish to trade online they must account for addition leg.
electronc commerce reg
the consumer contract regs
the EC regs covers any service normally provided for rem. at distance by means of electronic equipment for the procession and storage of data.
apply to both consumer and commercial
name of trader
geographic address
contact details
details of reg
details of supervisory authority
where trader excersises reg prof
where trader VAT
```
125
reg 9 eccomerce 2002
includes informing the buyer.
126
2013 regs ECOMMERCE
ONLY APPLY TO CONSUMERS DEFINES IN REG5
127
2013 REGS ECCOMERce
REG 13 information requirements needed for the consumer.
TOTAL PRICE INCLUDING TAXES
reg 14 must be aware in a clear and prominent manner of certain items in schedule 2
reg 16 must give consumer confirmation
reg 18 if fails to do so trader= in breach
128
the right to cancel eccomerce
right to cancel no need to give a reason just within a set period of time. the right to cancel does not depend on trader breach.
reg 29-31 the cancellation period
excercing the right to cancel reg 32
effect of cancellation 33-35
129
interaction between the ec ansd 2o13 regs
some overlap in terms of info to be provided under both regs as some do not assume compliantce with boththe EC REGS APPLY TO BOTH COMMERCIAL AND CONSUMER CONTRACTS WHERE AS 2013 = CONSUMER ONLY
