Tuto contract week 4 - Tutorial work in regards to implied term in regards to implied by law. Implied PDF

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Question Ai. Seema bought 20 pieces of ceramic plates after she was shown a sample by Chee. 10 plates delivered to Seema were of the same color as the samplebut the other 10 were different.ii. Assuming, the 20 pieces delivered correspond with the sample, Seema used the plates for her son’s birthday ...

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Question A i. Seema bought 20 pieces of ceramic plates after she was shown a sample by Chee. 10 plates delivered to Seema were of the same color as the sample but the other 10 were different. ii. Assuming, the 20 pieces delivered correspond with the sample, Seema used the plates for her son’s birthday party but when hot sauce was poured onto the plates, they cracked into pieces. Assume: divide into 6 marks each Advise Seema. Issue: Choices: Whether there are any implied terms made between Seema and Chee/ Whether Seema may sue Chee and claim for damages/ Whether there are any implied terms under Section 17 of SOGA 1957 between Chee and Seema Law and Application: -

S. 17(1): A contract of sale is a contract for sale by sample where there is a term in the contract express or implied to that effect.

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Sales by sample means the seller brings a sample of goods to the buyer and based on the sample that was shown, the buyer agrees to make purchase of the goods and enter into a contract of sale. Application: Seema had agreed to make purchase of the ceramic plates and enter into a contract of sale after Chee had shown her the samples.

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Case: Parker v Parker 1821- “is a sale whereby the seller expressly or impliedly promised that the goods sold should answer the description of a small parcel exhibited at the time of sale.

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S. 17(2): When a person enters into a contract of sale by sample, by default, there exist 3 implied conditions which are independent of one another.

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S. 17(2)(a): The bulk shall correspond with the sample in quality. This means that the goods that the plaintiff received from the seller. The buyer has the right to ensure that the goods he received, must correspond with the sample in terms of quality. Application: The goods that Seema received did not correspond with the sample that Chee showed in terms of quality as when Seema used it to pour hot sauce onto the plate during her son’s birthday party, it cracked into pieces. (SALAH) Colour can also indicate quality. Implied condition that all 20 pieces of ceramic plates bought by Seema must correspond with quality. However, 10 betul and 10 salah

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S.17(2)(b): The buyer shall have a reasonable opportunity of comparing the bulk with the sample. This means that the buyer has the right to compare the goods he received with the sample that has been shown by the seller.

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S. 17(2)(c): That the goods are free from any defect rendering them unmerchantable which would not be apparent on reasonable examination of the sample. This means that when the buyer examines the samples shown by the seller, the buyer must use his reasonable examination to determine that there are any apparent defects. If there are no apparent defects upon reasonable examination by the buyer, the buyer may still sue the seller under this section. Application: Using reasonable examination, Seema would not be able to determine that the plate would have cracked if it would pour hot sauce onto it. Nevertheless, upon receiving the ceramic plates, it did have apparent defects. Plus, ceramic plates generally can withstand very high temperature.

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S. 12(2): Breach of condition

Conclusion: Seema can claim her money back.

Question B Ning Que recently purchased some flooring tiles from a local builders’ merchant. However, it turned out that most of the tiles were cracked and unusable. Ning Que was in a hurry when he bought them and only had a quick look at them. He had not noticed that they were cracked. Ning Que now wishes to return the tiles. Advise Ning Que on his rights under the Sale of Goods Act 1957. Issue: Whether Ning Que has the right to return the tiles under Section 16(1) of the SOGA 1957. Law and Application: -

S.16(1): Is the codification of the common law principle known as caveat emptors. CE means that the buyer must exercise care in making the purchase. If he does not, he must bear the consequences. The general principle of caveat emptor indicates, that the buyer has the obligation to take reasonable care. This means that it is the duty of the buyer to make a reasonable examination upon the goods purchase. No implied obligation on the part of the seller to disclose such damages. No implied condition in regards to fitness of business Application: Applying the principles of caveat emptor, Ning Que has the obligations to take reasonable care during the purchasing of the flooring tiles. This means that Ning Que needs to make reasonable examination whether the flooring tiles had any apparent defects. Local builders are protected by the general principle of caveat emptor. Mention that he was in a hurry

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S. 12(2): Breach of condition

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Case: Ward v Hobbes 1878-

The House of Lords held that a vendor cannot be

expected to use artifice or disguise to conceal the defects in the product sold, since that would amount to fraud on the vendee. However, the doctrine of caveat emptor does not impose duty on vendors to disclose each and every defect in the product, The caveat emptor imposes such obligations on vendee to use care and skill while purchasing such product.

Conclusion: Ning Que does not have the rights to return the tiles. Question C Lili, a model, consulted a famous hair stylist for her opinion on the most suitable hair care product that would make her hair shiny and healthy. Three weeks after using the product supplied by the stylist, Lili suffered a serious problem of dandruff and hair loss. Lili now wishes to bring legal action against the hair stylist. Advise Lili. Issue: Whether Lili can bring legal action against her hair stylist under Section 16(1)(a) of the SOGA 1957. Law and Application: Exceptions to the general principle of caveat emptor (apply caveat emptor first then use however to indicate the application of exceptions) -

S. 16(1)(a)- implied condition that goods are reasonably fit for a particular purpose. To argue that the buyer's situation falls under the implied condition of this section, there are four requirements that need to be fulfilled by the buyer. 1. The buyer must make known, either expressly or impliedly to the seller at or before the time when the contract is made, the particular purpose for which the goods are required. This means that the buyer basically must inform the seller expressly or impliedly the reason as to why you want to purchase the goods. Application: Lili had expressly told the hair stylist that she wants a hair care product that has the particular purpose of making her hair shiny and healthy. 2. The buyer is relying on the seller’s skill or judgement. This means that you had relied on the seller’s advice on that particular goods.

Application: Lili had relied on the hair stylist’s skills and judgement as she personally consulted the hair stylist herself. Plus, she did purchase the hair care product. 3. The goods are of a description which it is in the course of the seller’s business to supply. Look at the nature of the shop. Application: It was indeed the seller’s business to supply as Lili had consulted a famous hair stylist and not an ordinary man working in a supermarket. Good hair care product is in the course of the seller’s business to supply 4. If the goods are specific, they must not be bought under their patent. If a buyer buys under a goods patent or trade name, the rationale is that the buyer had relied on the brand name and not the seller’s skill and judgement. Application: Lili did not specify any patent or trade name. -

Four requirements were fulfilled, hence there is an implied condition as to fitness of purpose for the hair product to make Lili’s hair healthy and shiny.

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S. 12(2): Breach of condition/ claim for damages/

Conclusion: Lili can bring legal action against the hair stylist

Question D Mr and Mrs Chong ordered carpet for their home from a carpet manufacturer. They specified that the carpet was to be a particular colour to match the interior décor of the house and the internal walls which were exposed brick. The carpet was supplied and there was no complaint as to its quality as carpet, but the colour of the carpet was different in patches and different from the colour specified. This was due to "pile reversal" or "watermarking"; a result of the manufacturing process. Must Mr and Mrs Chong accept the carpet? Issue: Whether Mr and Ms Chong has to accept the carpet. Law and Application: -

Identify whether there are descriptions

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S. 15: Where there is contract for the sale of goods by description, there is an implied condition that the goods shall correspond with the description, and if the sale is by sample as well as by description, it is not sufficient that the bulk of the goods corresponds with the sample if the goods does not also corresponds with the description. Application: Mr and Mrs Chong had made a description to the carpet manufacturer that they wanted the carpet to be in a particular colour in order to match the interior decor of their house and the internal walls which were exposed brick. However, the carpet manufacturer failed to correspond with the description made by Mr and Mrs Chong as they had produced a carpet with a different colour and patches.

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There are three types of sale by description. 1. Future or ascertained goods. 2. Specific goods which have not been seen by buyers. Application: 3. Specific goods which have been seen by buyer

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Case: Arcos Ltd v E.A. Ronaasen and Son 1993- The contract was for the sale of staves to be ½ inch thick. The timber supplied varied in thickness from ½ inch to ⅔ inch.

The buyer's purpose in buying cement barrels and staves as supplied were fit and merchantable, according to the umpire, for that purpose. The House of Lords held that the buyers could reject the goods as they did not correspond with the description in the contract. Application: The Chong couple’s purpose in buying the carpet were to match the interior décor of the house and the internal walls which were exposed brick. In applying to this case, since the carpet manufacturer failed to meet the description, Mr and Mrs Chong could reject the carpet. -

S. 16(1)(b): in addition or alternatively, this section can also be inserted/ only applicable when the seller is a commercial seller/ carpet is a commercial seller. 1. Sell by description 2. Deals with such goods 3. Relied on the description

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S.12(2): Breach of condition

Conclusion: Mr and Mrs Chong can reject the carpet....