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5.1.2 专题2 —货物买卖：所有权转移，合同的履行及违反所有权转移(Transfer of Property)在通过关于货物买卖的成文法之前，货物所有权在什么时候转移给买方由苏格兰普通法管辖，其规则为货物所有权在货物交付（delivery）时转移。
然而，成文法SOGA 1979 使苏格兰有了不同于其以前的所有权转移的规则。
该规则来源于英兰格普通法中关于有形动产的法律。
SOGA 1979中规定，货物所有权可以与货物交付分开而独立转移，例如在合同中约定货物所有权转移的时间。
在破产或清算中，当清算人或财产托管人与其他债权人同时对破产财产产生请求权时，上述所有权转移规则会变得尤为重要3。
相应的，如果货物产生灭失，其损失应由货物法律上的“所有者”来承担。
因为除当事人之间另有约定外，货物风险随所有权转移而转移（Risk passes with ownership）。
SOGA 1979第20条规定了两个关于货物风险转移的例外。
首先，当货物的交付由于卖方或买方的过错而被延迟时，货物灭失的风险由造成延迟交付的过错方承担。
其次，货物的买方或卖方在作为货物的管理人或运送人期间，仍对货物负有适当的注意义务（Reasonable Care）。
（在此期间，因作为货物管理人或运送人的一方没有履行其注意义务而致货物灭失的，由该方负担相应责任）。
你可能还能回忆起专题1中的两个概念：现存物（existing goods）和将来物（future goods）。
SOGA 1979还将货物分为特定物（Specific goods）和不特定物（unascertained goods）。
特定物在专3例如：当卖方将货物交付给买方占有但双方约定所有权尚不发生转移，如买方破产，则由买方占有的卖方先前交付的财产不能列入破产财产的范围，而应由卖方直接取回财产。
题1中也描述过其内容。
不特定物(unascertained goods)是指在合同成立时尚未指定并就其达成一致的货物。
Business contractual relationship:Assessment 1:Case one:“A contract in which the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price.”A contract of sale of goods’ therefore covers both a ‘sale’ and an ‘agreement to sell’. Where the seller can transfer the goods immediately, and is willing and able to do so, then there is a ‘sale’. However, where there is some sort of condition that must be fulfilled or some act has to be carried out before the sale can take place, and then there is merely an ‘agreement to sell’.The legal effect of a ‘sale’ is that the purchaser obtains a real right over the goods as property in the goods has passed to the purchaser. However, in an ‘agreement to sell’the purchaser only holds personal right against the seller in respect of the contract.Mary can use SOGA1979 Term to protect herself right and power.Implied Terms of SOGA 1979 include that section12- SOGA 1979- Implied Terms of Title, section13-Sale by Description, section 14 -‘Satisfactory Quality’ and ‘Reasonable Fitness for Purpose’, and section15- Sale by Sample.Section 12 -- SOGA 1979- Implied Terms of TitleAt the first, the seller must have ‘title’ to the goods; the right to sell the goods. The seller must either own the goods or should have the appropriate authority from the owner to sell the goods.No third party should have any claim on the goods which would prevent the buyer from obtaining a good title and quite possession of the goods. If there is any charge or encumbrance over the goods by the third party, then all known charges or encumbrance would required to be disclosed prior to the sale.Section13-Sale by DescriptionOn the other hand, this section implies the term that the goods are to ply with their description. It is clear that if the buyer dose not sees the goods prior to purchase and buy s those relying on a description, then this section would apply.However, SOGA 1979 also makes clears that a sale by description can also apply to goods exposed for sale and selected by the customer.Section 14 -‘Satisfactory Quality’ and ‘Reasonable Fitness for Purpose’,Satisfactory QualityIn English law, there was previously an onus on the purchaser to ensure that goods were of a reasonable quality and suitable for any specific purpose required –the caveat emptor rule.In Scottish law, there was a principle that a sale of goods was a contract of good faith.Section 14 only applies where goods are sold in the course of a business so it only covers the situation where the seller is in business. It does not cover private sales although the status of the buyer is irrelevant. Section 14 applies to business buyers as well as to private buyers.The quality of goods includes their state and conditions and this would therefore means that if goods are advertised as in a sale , or seconds etc, this could have some effect on quality to be expected. There are factors that are listed in section 14 of SOGA 1979 as potentially relevant in appropriate cases :( 1)Fitness for the purpose for which goods of the kinds in question are monly supplied(2)Appearance and finish (3)Freedom form minor defect (4) Safety (5) Durability.Reasonable Fitness for PurposeUnder section 14 of SOGA 1979, there is an implied term that the goods are reasonable fit for the purpose, whether or not that is purpose for which such goods are monly supplied.In the case, Mary’s tumble dryer has quality problems and line installation defects caused by fire. This does not conform to the provisions of product safety. Because this product’ defects cause serious consequences. Of course, the hairdryer to use only two months on the problems that the hairdryer is not durability. Hence，Mary could use Section 14 -‘Satisfactory Quality’ and ‘Reasonable Fitness for Purpose’ because that Mary’s situation conforms to the content that the law stipulate.Section15- Sale by SampleIn this section there are two implied terms:That the bulk will correspond with the sample in quality: and that the goods will be free from any defect, marking them unsatisfactory, which would not be apparent on reasonable examination of the sample.Case two:Charlie can't use the SOGA1979 bill rights, because Charlie did not directly buy tumble dryer.Charlie can use the Law of Delict to protect his own power，the Law of Delict, like the law of contract , is a part of the law of obligations. A delict has been defined as: “a civil wrong mitted by a person in deliberate or negligent breach of a legal duty, from which liab ility to make reparation for any consequential loss or injury may arise”General principles of Delictual liabilityAs noted above there must be three elements present:A loss or injury, such as physical or personal injury, the loss of earnings, nervous shock, distress, damage to a reputation.Caused by a legal wrong (wrong conduct)Caused by culpa(fault, intentionally or negligently done) on the part of the wrongdoer.Charlie lung inhalation of smoke to his shock in this belongs to the serious loss. According to the case, Charlie is not negligence resulting in the fire is mainly because short circuit caused the fire.Charlie can also use the Consumer Protection Act 1987to protect his rights and interests.It contains importance extension of the privity of contract rights for consumers if goods are unsafe, so that rights also exist directly against producers and those who hold themselves out as producers.The consumer protection act 1987 deal with three main aspects of consumer protection: product liability, customer safety and misleading pricing.Product liabilityPart one of the customer protection act 1987 transport the product liability directive into the UK law.part 1 of the establishes is a principle of strict liability relating to defective products which cause damages to other property and injure to people who were injured as a result of using the product or who came into close contract with the product.Strict liability means that the plaintiff does not have to prove fault on the part of the defendant. The product liability section made producers liable for any damage done by defective products. The Act goes even further in ensuring that customers are protected from damage or injure caused by faulty goods.In the case, Charlie’s safety and healthy was threaten by the gas that he absorb in the fire. This event happened due to product defect. Therefore, this event belongs to the product liability act.Consumer safetyPart 2 of Consumer Protection Act 1987provides the safety provisions.It deal with consumer safety and allows the government to regulate the design, ponents and construction of goods which could, if defective cause injury. Charlie also fits the bill because it is due to product defects cause harm. what’s more, the tumble dryer damage his health in this event and there is a bad effect on his life. Therefore, this event is suiting to Part 2 of Consumer Protection Act 1987provides the safety provisions.Misleading pricingPart 3 of the Act makes it illegal to mislead consumes about the price of any good, service or facility. The provisions of this part are quite prehensive and cover such services as banking, gas and electricity supplies, telephone service, parking acmodation and all goodsCase 3:The boss’s word is not obe yed no clause exempting.The first does not conform to the provisions; this statement is not a fair statement. The Unfair Contract Terms Act 1977 ——regulates contracts by restricting the operation and legality of some contract terms. One of its most important functions is limiting the applicability of disclaimers of liability.Section17 UCTA1977covers attempts to exclude contractual liability in consumer and standard form contract.If a document is singed at the time of making the contract, its contents bee terms of that contract, regardless of whether they have been read or understood.If separate written terms are presented at the time a contract is made, for example by handing over ticket, those terms only bee part of the contract if it can be said that the recipient had reasonable notice of them. However an exemption clause is only incorporated into the contract if notice is given before or at the time of contracting.Case 4：Debtor –creditor –supplier agreement. Where the creditor is also the supplier of the goods. In these agreement where goods or services cost more than$100or less than $30000 the debtor can hold the creditor jointly and severally liable with supplier when he claims misrepresentation or breach of contract against the supplier –known as ‘ connected leader liability’.Examples where there would be a debtor-creditor-supplier agreement include purchases of goods from retailers where there is a pre-existing financing arrangement; hire-purchase arrangements where the finance is provided by a finance pany; and credit card transactions.Under section 75 of the CCA 1974 both the creditor and the supplier are jointly and severally liable in respect of any breach of contract. The consumer would therefore choose to claim against either the creditor or the supplier.The creditor and supplier may be the same person, and has links to a creditor or vendor who will provide loans to the vendor's customers, this is a very mon type of agreement generally suppliers belong to the intermediary in the debtor-creditor-supplier agreement, however section75 of the Act allows debit charges lenders and suppliers, If a breach of contract, plus 85 pages under section 75 Credit belongs to consumer creditor with supplier belongs to the same party this clause can Act 1974 Dave supplier creditor claims.。
商务契约关系O u t c o m e1 -CAL-FENGHAI-(2020YEAR-YICAI)_JINGBIANCASE 1:Q1: Is Maggie entitled to bring a legal action against Thunderbolt & Lightning for selling her a defective tumble dryer and will it matter that she purchased the goods in a sale1.Yes, Maggie is entitled to bring a legal action against Thunderbolt & Lightning forselling her a defective tumble dryer in terms of the Sale of Goods Act 1979 (as amended).2.Thunderbolt & Lightning will be in breach of Section 14 of the 1979 Act. The storehas broken one of the implied terms of the Sale of Goods Act 1979 (Sections 12-15) which are always assumed to form part of every contract of sale.3.Section 14 also states that goods will be of satisfactory quality if they meet thestandard that a reasonable person would regard as satisfactory, taking account of any description of the goods, the price (if relevant) and all the other relevant circumstances. Section 14 lists five examples of quality that buyers can use to help them decide whether the goods that they have purchased fall below the expected standard of quality:fitness for all the purposes for which goods of the kind in question arecommonly suppliedappearance and finishfreedom from minor defectssafetydurabilityThe tumble dryer is not fit for its purpose, it is unsafe and it is not durable. The protection which Section 14 gives to buyers is only applicable in situations where the seller is selling the goods in the course of business. Maggie, of course, has purchased the goods from a business seller.4.Will it make a difference that Maggie purchased the goods in a sale No. The onlyexceptions will be when detects were specifically drawn to the buyer’s attention by the seller. Furthermore, if the buyer examined the goods before purchasing them and noticed any obvious defects, she/he will not have the protection of Section l4.5.More generally, the buyer’s claim that goods were not of satisfactory quality willbe defeated if the goods have been subject to wear and tear, the buyer hasmisused the goods or the buyer now has simply taken a dislike to the goods.6.Section 48A(3) of the Sale of Goods Act 1979 now states that there will be astrong presumption operating against the seller that if the goods develop defects within six months from the date of delivery to the buyer. Then they will probably have failed to meet the requirement of satisfactory quality.7.Candidates must be able to cite at least one of the following:Jackson v Rotax Motor and Cycle Co [1910]Grant v Australian Knitting Mills Ltd [1936]Mash and Murrell v Joseph I Emmanuel [196/], [1962]Bartlett v Sidney Marcus Ltd [1965]BS Brown & Son Ltd v Craiks Ltd[1970]Millars of Falkirk v Turpie [1976]Q2: What legal action, if any, can Charlie pursue as a result of the injuries that he has suffered1.Charlie will not be entitled to bring an action under Section 14 of the Sale ofGoods Act l979, because he does not have a contractual relationship withThunderbolt & Lightning.2.Charlie is in a much stronger legal position thanks to Part I of the ConsumerProtection Act l987 which allows him to pursue a civil claim for damages against the manufacturer of the tumble dryer in respect of his injuries. Part l of theConsumer Protection Act establishes a regime of strict liability in relation todefective products which cause damage to other property and/or injuries topeople who were injured as a result of using the product or who came into close contact with the product. Strict liability automatically presumes that the defect in the product must be the fault of the producer of the goods. The manufacturer must come up with a credible explanation to show why she/he is not to blame for the injuries or loss that the pursuer (Charlie) has suffered.3.The 1987 Act applies to dangerous products which are capable of causingdamage to the pursuer’s property or cap able of causing the pursuer to suffer some sort of personal injury. The fact that the product is not working properly will not give a pursuer the right to raise an action against the defender. Many products are defective without being dangerous in any way.Q3: Do you think that Thunderbolt & Lightning will be able to escape liability to Maggie by claiming that the manufacturer was responsible for the defects in the goods1.No. Thunderbolt & Lightning’s attempt to escape liability to Maggie by claimingthat the manufacturer was responsible for the defects in the goods will fall foul of the concept of strict liability in the Sale of Goods Act 1979.2.The buyer’s contract is with the seller and it is irrelevant to the buyer whetherthe defect has been caused by a manufacturing fault or not. The seller’s liability is said to be strict in the sense that the buyer does not have to prove fault orblame on the seller’s part.3. A seller can in turn sue the manufacturer for supplying it with defective goods ifthe buyer has successfully sued him/her for defects in the goods. The buyer may have suffered a personal injury or his/her property may have been damaged as a result of using the defective goods. The seller will have to compensate the buyer for any injuries suffered or any damage caused as a result of using the goods. So, compensation could be awarded for the destruction caused to Maggie’s kitchen and clothing in the appliance at the time of fire.4.Manufacturing guarantees may also give an indication as to the length of timethat a buyer can expect the goods to meet the appropriate standard of quality.This might be a strong indication of a major defect. Section 14 of the Sale ofGoods Act l979 states that manufacturing guarantees are directly enforceable against the manufacturer and any person (Thunderbolt & Lightning) who uses a guarantee to sell or market the goods to a consumer.Q4: Do you think that Thunderbolt & Lightning will be able to rely on the above exclusion clause to escape any potential liability to Maggie1.Thunderbolt & Lightning’s attempt to rely on the exclusion clause to escape anypotential liability to Maggie will fail miserably.2.Such an exclusion clause is null and void because the store is attempting toexclude its liability for personal injuries which it simply cannot do.3.Any attempt by the store to exclude or limit its liability in relation to Section 14of the Sale of Goods Act 1979 will be automatically void in terms of Section 20 of the Unfair Contract Terms Act 1977.4.Furthermore, there is a general provision in Section 16 of the Unfair ContractTerms Act 1977 which renders null and void any attempt by an individual toexclude his/her liability for death or personal injuries.5.Maggie is a consumer buying goods for her own private purposes and thestrongest possible protection is extended to consumers in terms of 1977 Act. 6.Additionally, the store’s exclusion clause could be challenged under the UnfairTerms in Consumer Contracts Regulations 1999. The Regulations apply a test of fairness before exclusion or limitation clause can be regarded as void andunenforceable. With regard to the issue of excluding or limiting liability for death or personal injury, the Regulations state that such terms may be unfair whereas the Act makes these automatically void.Q5: Presuming that Maggie’s legal action is successful, what remedies will she be entitled to claim against Thunderbolt & Lightning1.If Maggie’s legal action is successful, she will be entitled to claim the remedies ofrescission . cancellation of the contract of sale for material breach (supplying goods of unsatisfactory quality) and damages as per Section 15B of the Sale of Goods Act 1979.2.There are various remedies:rescissionreduction in the price of the goodreplacement of the goodsrepair the goodsCase 2Q1: What Act of Parliament covers consumer credit and how would you define a consumer credit agreement1.The Consumer Credit Act 1974 (as amended) regulates the consumer creditindustry.2.Section 8 of the l974 Act lays down a definition of a regulated consumer creditagreement. Such an agreement is a personal credit agreement by which thecreditor provides the debtor with credit not exceeding £25,000. A corporatebody (company, a limited partnership or a limited liability partnership) cannot bea party to a consumer credit agreement.Q2: By reference to Section 75 of the Consumer Credit Act l974, describe the legal relationship between Marvellous Motors PLC and Alba Bank.1.Marvellous Motors PLC has a debtor-creditor-supplier arrangement with the AlbaBank. Debtor-creditor-supplier agreements where the creditor and the supplier of goods may be the same person or where the supplier has links to a creditor who will provide credit to the supplier’s customers (the debtors). The supplier (Marvellous Motors PLC) in a debtor-creditor-supplier agreement is the agent of the finance house or the bank. This kind of arrangement benefits all three parties.The debtor is given access to a source of credit; the supplier can be confident of selling more goods because she/he is in a position to offer credit to potentialcustomers and the finance house/bank gets someone else (the supplier) to drum up custom on its behalf Debtor-creditor·-supplier agreements.2.Section 75 of the Act allows a debtor to sue either the creditor or the supplier inthe above arrangement for a breach of contract committed by the supplier(Marvellous Motors PLC). Section 75 makes the creditor and supplier jointly and severally liable to the debtor for any misrepresentations or breaches of contract committed by the supplier.Q3: What is the difference between a credit sale and a hire purchase agreement 1.In credit sales, the debtor will become the owner of the goods from the outset ofthe agreement. All the debtor has to do is make regular repayments of the debt owed to the creditor over the agreed credit period.2.In hire purchase sales, the debtor will not become the owner of goods until hehas paid the creditor all the instalments owed under the agreement. The debtor will be given an option to purchase the goods. Hire purchase can never involve the purchase of land.Q4: in what circumstances do debtors have the right to cancel a consumer credit agreement1.Section 67 of the Consumer Credit Act 1974 does allow a credit agreement to becancelled in certain situations. Credit agreements can only be cancelled if two conditions are met:if you, the debtor, entered into face to face discussions with the creditoror the creditor’s agents with the aim of entering a credit agreement; andthe signing of the credit agreement by both parties did not take place onthe creditor’s business premisesIf a debtor signed a credit agreement in his/her own home after discussions with the creditor’s agent, the debtor can take advantage of a cooling-off period. This period gives the debtor time to decide whether he wishes to cancel the agreement or not. Q5: What is the purpose of consumer credit licenses and will a business which applies for a license automatically be granted one1.The Consumer Credit Act 1974 established a licensing system which covers allactivities relating to the provision of credit. Businesses or individuals wishing to provide credit facilities to members of the public must be in possession of alicence issued by the Office of Fair Trading. Failure to obtain a licence means a business or an individual providing credit could face both civil and criminalpenalties. An unlicensed creditor may find they are unable to enforce theagreement against the debtor.2.Licences are not just issued to anyone.a.If you have previously broken the rules in the Consumer Credit Act 1974,you will probably not be issued with a licence.b.Criminal convictions for violence and dishonesty are likely to result in theapplicant being refused a licence.c.All licence holders must ensure that they conduct their businessesproperly. Any undesirable conduct on their part could mean that theOffice of Fair Trading may decide to suspend or, even more seriously,withdraw the licence.Case 3Q1: By re-labelling the bottles of Bulgarian chardonnay as champagne, what criminal offence is Wullie committing and which Act of Parliament will he be in breach of as a result of his activities1.Wullie will have committed the criminal offence of making a materially falseand misleading trade description as regards the origin of goods.2.He will be in breach of:a.Section 1 of the Trade Descriptions Act 1968 for making a false andmaterially misleading trade description in relation to goodsb.Section 2 of the Act gives definitions of various false and materiallymisleading trade descriptions andc.Section 3 explains what is meant by the word "false" in relation to atrade description.Q2: What defences are available to someone in Wullie’s position1. Section 24 of the Trade Descriptions Act 1968 provides the main defence to an accused in Wullie’s position:that the commission of the offence was due to a mistake, or due to relianceon information supplied to him, or to the act or default of another person, or to an accident, or due to some other cause beyond his control; andthat he took all reasonable precautions and exercised all due diligence toavoid the commission of such an offence by himself for any person under his controlWullie is not to be successful in any attempt to defend his actions given the deliberate nature of his crime.2．Candidates should be able to cite at least one of the following examples: Robertson v Dicicco [1972]Fletcher v Budgen [ I 974 ]Regina v Ford Motor Co [IQ74]Ford v Guild []990]Costello v Lowe [7990]。
Outcome 1From the case we know that Michael pushed an all weather jacket. Unlucky, there have something wrong with this jacket. After wearing for only one day the zip had broken and water had penetrated and he had felt cold. This jacket is the unqualified products and not sold by manufacturer’s description. The sale of goods Act 1979is the main piece of legislation helping consumer to seek protection when their purchases go wrong. Michael could protect himself rights through the sale of goods Act1979.The Sale of Goods Act 1979 protects the right of consumer. However, the act has been being modified and influenced by the followed legislation. Most notably of the subsequent legislation are the Sale and Supply of Goods Act 1994 and the Sale and Supply of Goods to Consumer Regulation 2002. In the section 2 of SOGA1979, contract sale is “a contract in which the seller transfers or agrees to transfer the property in good s to the buyer for a money consideration called a price.Michael needs to look at section 2 of SOGA 1979 and keep receipt or invoice of this jacket. The receipt or invoice show when Michael pay the jacket and get the jacket. This is sale not barter. Barter is use an item to replace another item, there is no money paid. It also can be the basis for Michael to protect his rights. In law, sale is a party obtains the ownership of goods then sold to another party. A contract can be in writing, be made orally, or party in writing and partly or orally.The section 12 of SOGA said that the seller must be the owner of the goods. If the seller does not have right of the goods and sells those goods, then the buyer would not gain a good title of goods. And if the third party has the ownership of the goods the buyer can not get the rights of the goods. The obligations from the section 12 can’t respected or astricted by the agreement under the Unfair Contract Terms Act 1977, as amended. Based on the decision from the case of Niblett Ltd v Confectioners Materials Co (1921) and McDonald v Provan (1960) consumers are successful to claim the seller breach the section 12 of SOGA.According to the section 13 of SOGA 1979 the seller to sell goods at the same time they must to fulfill their obligations. The seller to sell goods must fit himself description. It was held in the case of Roberts & Co &Yule (1896) and Grant v Australian Knitting Mills (1936) the sellers breach the section 13 of SOGA as the good not sold by description. The section 14 (2A) of SOGA rules that the seller sell good s must be fit for its purpose and have satisfactory quality. And the section 14 (2B) rules the goods must be appearance and finished, safety and durability. If not, you as the supplier are obliged to sort out the problem. In the case, the jacket is unqualified goods and not fits seller’s description. Michael can sue the seller.If the buyer have some special requirement about the goods they should tell the seller before buy the good. As mentioned above there is strict liability under section 14. Sothe buyer is unnecessary to prove the damage is caused by the seller.The claimant is entitled to have a legal action to against the defendant for the defendant goods (jacket) in terms of the sale of good Act 1979. So the seller could have s legal action to against Michael of his not clearly requirement. If buyer has some special requirement they should tell the supplier clearly before the section will apply.In this case Michael buys an unqualified jacket and the seller sold not by his description. Michael could claim the seller for breach section 13 and 14 of SOGA. In the case of Roberts & Co &Yule (1896) and Grant v Australian Knitting Mills (1936) the sellers breach the section 13 of SOGA as the good not sold by description. Michael could sue the seller to protect himself rights.Outcome2In this case Michael bought an expensive garden maintenance set included mower and the trimmer. He paid by credit from the credit company which normally provided finance for the shop’s customers. Few days later the mower and the trimmer break down and the shop is closing down.Michael could protect his rights through The Consumer Credit Act 1974. He needs to know something about the CCA1974. The CCA1974 rules that the company provide credit must have license. Company could apply for the; license in the OFT and hand in the apply table to the Director General. Applications for license are made to the Director General and have five years validity. If company provide credit without license is a criminal offence and will be result in imprisonment.The CCA 1974 gives consumer the right to settle a fixed sum credit agreement. If consumer needs to pay much money they should notices to the lender and paying the outstanding sum in full. In section 8 of the CCA 1974 a consumer credit agreement is defined as the creditor supplies the debtor with credit not exceeding￡25,000. a consumer hire agreement is defined in section 15 of the CCA1974 as an agreement made by owner of goods hire goods to other person and lasting for more than three months can’t require the hirer paid exceeding￡25,000. In this case is relate to consumer credit agreement not consumer hire agreement.Running account credit is said that the bank give debtors credit demand on up to an agreed credit limit. The credit include bank overdraft and some shop credit accounts. Fixed sum credit is said that the debtor can receives credit in a single sum or in instalments.The section 60 of CCA provides some rules for have a document. And it also was under the Consumer Credit Regulation 1983. The Consumer Credit Regulation 1983rules something seriously about the document. The document must contain the name and address of the parties and amount of the total charge for credit. There also should have amount and timing of each payment and the total amount payable. There need to provide details of any security to be provided by the debtor and details of any charges payable by the debtor if on default. In the first page must declare which type of agreement in this document. Last, the document must be signed and copies kept both debtor and creditor. Michael could provide the document to the judge.Under section 75 of the CCA 1974 both the creditor and the supplier are jointly and severally in fraud or breach of contract. Sometimes creditor is also the supplier of goods. If the supplier disappeared the consumer could claim the creditor to protect their rights. In this case the shop is closing down when the mower and trimmer break down. So Michael could sue the credit company which normally provided finance for the shop’s consumers.In this case Michael bought a expensive maintenance set included the mower and the trimmer. He paid by the credit due to the expensive. Few days later the mower and the trimmer break down and the shop is closing down. According to the credit company normally provided finance for the shop’s consumers Michael could claim the credit company to compensation his loss.Outcome3In this case, Michael buys the same set from another then he notices that the specification is different from the one displayed as a demonstrator. The electrical items were not as large and the hand held tools were fiberglass rather than the stainless steel.The Trade Description Act 1968 plays an important role in protecting consumer of goods and services through the criminal law. Michael could protect his rights through the TDA 1968. In section 2 of the TDA 1968 a trade description id defined as indirect or direct describe of goods.The fitness for purposes, strength and performance must include in the description. The description should have the date or place of manufacture, production and processing or reconditioning of the goods. The description need to introduce the quantity, size of the goods and the composition of the goods. In the description should have any other physical characteristics of the goods and other history of the including ownership or use. Another important point is to list any testing by any person and the results of such testing and any approval by any person or conformity with a type of approval.False description means misleading to a material degree. Relate to the case, Michael see the set displayed as demonstrator and buy it. Because of the displayed goods is a false description make Michael believe goods material. Michael could sue the seller false description. Based on the case of Wings v Ellis (1985) and the case of British Airways Board v Taylor (1985) consumers claim the seller for false description and breach of the section 14.In the section 14 of the TDA 1968 a false description is criminal offence for any person in a trade or a business. It included some situations. If someone make any statement which he knows to be false or reckless. The false description may be included the location, person by whom provided and amenities. The provision, nature and the time sometimes may be false. The false description also included manner in which and the approval, examination or evaluation of any person. In this case, supplier breach of section 14 due the false description. It will be a criminal offence.However the defendant is entitled to have a legal action to against the claimant, in section 24 of TDA 1968 called defence. The supplier may said that consumer give mistake or reliance information to him result in the defective goods. And that he has does his best to avoid take place this false description, due to consumer doesn’t tell him the details about clearly. Such as the requirement of size and material. Consumer should check up goods before out of the shop.In this case Michael purchased the garden good is not satisfied because it is different from the displayed one. Michael could sue the retailer for breach of section 14 of the TDA 1968, he should receive compensation. But the seller could defence because of consumer’s unclearly requirement lead to this mistake and he does his best to avoid this mistake. If retailer could provide strong evidence the defence may be successful. If not, the retailer must compensate the loss of Michael or give Michael the right size and composition goods.。
1.0IntroductionJane black is a buyer for a high street fashion shop and she has the right for employers to purchase all styles of fashion ladies.Now Jane Black has some trouble , Because Jane Black and men`s clothing suppliers signed a contract , Jane Black that these clothes relatively inexpensive and great looking , but employers will certainly be very happy . However , employers are not uniform Jane Black`s point of view , an employer that Jane Black breach of contract , the employer refused to Jane Black of the contract . So Jane Black feel very distressed . He gave us advice .The purpose of this report is to introduce the law of agency , agency law analysis , and analysis of the case , explain how to form an agency relationship . In these processes , make recommendations for Jane Black .2.0The types of agent and principalAgent may refer to one who acts for , or in the place of , anther , by authority from him ; One entrusted with the business of another .As discussed by economists as the principal –agent problem ,agent means anyone supposed to act in the interests of the principal , especially insofar as the actions of the agent cannot be completely monitored by the principal . In this sense agent includes such diverse and common roles as auto mechanic , adoctor ,a lawyer , an investment advisor , any fiduciary , a contractor , any employee( from the point of view of the employer ) , and a political representative in a democracy .Agents ate divided into general and special and special proxy agent .Agents are divided into general and special proxy agent . Agent can be designated range of general agents , general agents the right to be larger , becausethe general agent in the exercise of power .In this way , We can use to analyze the definition and classification of the things Jane Black . Jane Black and employers to sign a contract is clearly dominant .Jane Black while employer have the right to buy for , but Jane Black is to follow the employer is request and to execute this contract rights . Jane Black , and another person does not mean that the contract is signed and Jane Black of the employer is contract . We have to analyze Jane Black has failed to fulfill the employer is contract , she is not within the scope of the contract at the employer is own right .3.0The type of agentFirst , the sub-agency relationship is clearly very important . Distinguish between the agent , we will understand more clearly the case .Agency relationship can be divided into the following ways:Express authority maybe oral authority or authority in writing . If an agent exceeds this express authority then the principal will not be bound by the agent`s actions.In this case , Jane Black and employers is a clear relationship .Implied authority is authority to do all that is necessary (or ordinarily incidental ) to the agent`s express authority and it is presumed that the principal consents to this . For example , general agent has implied authority to do what someone of his profession , or trade , would ordinarily do .For example ,eville v C & A Modes Ltd (1945) a shop manager was held to be an agent, but , In this case , Jane Black is directly responsible for the purchase of all female fashion .So in the case of this form does not exist .Agency of necessity arises when a person ( A) is faced with an emergency inwhich the property of another person ( B ) is in imminent jeopardy and it becomes necessary , in order to preserve the property for A to act for and on behalf of B. Agency of necessity arises only when it is practically impossible for the agent to communicate with the principal before the agent acts on behalf of the principl . ( This would be difficult to establish with today`s advanced communication systems and is the reason why agency of necessity does not often arise .)Authority to act in case of emergencies cannot usually prevail over express in structions to the contrary given by the principal .For example Fernie v Robertson (1871)，an ages necessary in the circumstances it appears the relationship . In the event of death or insanity appears , or some kind of emergency situation . In the case , Jane Black must show evidence , and third-party contract in time . She is not any accident , or have any special circumstances . Clearly , in this case which does not exist . Fernie V Robertson (1871), an agency of necessity arose when a senile perse`s estate was liable for house repair bills contracted on her behalf as the senile woman was too ill to issue instructions .4.0 AuthorityAn agent who acts within the scope of authority conferred by his or her principal binds the principal in the obligations he or she creates against third parties . There are essentially three kinds of authority recognized in the law : actual authority (ehether express or implied ) , apparent authority , and ratified authority .Actual authority can be of two kinds . Either the principal may have expressly conferred authority on the agent , or authority may be implied .Authority arises by consensual agreement , and whether it exists is a question of fact > An agent ,as a general rule , is only entitled to indemnity from the principal if he or she acted within the scope of her actual authority, and may be in breach of contract , and liable to a third party for breach of the implied warranty of authority . I tort , a claimant may not recover from the principal unless the agent is acting within the scope of employment .Express actual authority means an agent has been expressly told he or she may act on behalf of a principal . For example, Ireland V Livingstone (1872).Implied actual authority , also called “ usual authority” ,is authority an agent has by virtue of being reasonably necessary to carry out his express authority . As such , it can be inferred by virtue of a position held by an agent . For example , partners have authority to bind the other partners in the firm , their liability being joint and several , and in a corporation , all executives and senior employees with decision – maiking authority by virtue of their position have authority to bind the corporation . For example, Hely-Hutchinson V Brayhead Ltd (1968)>About lLord Suirdale (Richard Michae)John Hely-Hutchinson) sued Brayhead Ltd for losses incurred after a failed takeover deal .From the above two examples , we can conclude that the employer gave Jane Black power , Jane Black power is to buy women`s fashion , men`s fashion she did not get the employer is consent or acquiescence . But there is no surface of the authority . In this case , Jane Black is no need for institutions , so this situation does not exist.5.0 Duties of an agentAn agent owes the principal a number of duties . These include :1 A duty to undertake the task or tasks specified by the terms of the agency ( that is , the agent must not do things that he has not been authorized by the principal to do ).2. A duty to discharge his duties with care and due diligence . 3 . A duty to avoid conflict of interest between the interests of the principal and his own ( that is , the agent cannot engage in conduct where stands to gain a benefit for himself to the detriment of the principal).An agent must not accept any new obligations that are inconsistent with the duties owed to the principal . An agent can represent the interests of more than on principal , conflicting or potentially conflicting , only after full disclosure and consent of the principal .An agent also must not engage in self-dealing , or otherwise unduly enrich himself from the agency . An agent must not usurp an opportunity from the principal by taking it for himself or passing it on to a third party .In return , the principal must make a full disclosure of all information relevant to the transact that the agent is authorized to negotiate and pay the agent either a prearranged commission , or a reasonable fee established after the fact .In the caseof Bertram Armstrong v Godfrey (1830), an agent failed to sell shares at a certain price and waited to get a better price . The market crashed and he was held liable to the principal the loss incurred .In this case , Jane Black is the right to buy women fashion , but she signed with a third party party contract to buymen`s fashion , she did not comply with the requirements of employers .In the case of Luxmore – May V Messenger May Bostock (1990) , an auctioneer severely undervalued a masterpiece and was held liable for the difference between the valuation and the true value .Jane Black in this event which plays an important role , she is personally handle this matter , the one thing she has this responsibility . Jane Black breached his employer`s request , she and the employer`s written clearly on the requirements of the contract to buy women . So , Jane Black must say so , this thing inside yourself , and no third party interest , but his mind is good . Jane Black want their employers to earn money . But the law of the contract , the employer happy . Jane Black must be the truth .6.0 ConclusionThis report is mainly used to analyze the events of the law of agency . Which includes Jane Black`s legal status , duties , powers , and employer relations .These are analyzed and later , Jane Black will understand how to do it . This report contains almost all of the agency law of the content that is not only helpful for Jane Black ,are useful ofr most people .7.0 Reference.hk (26.12.2011)/wiki/Agent_(law)(26.12.2011)/terms/a/agency-by-necessity.asp#axzz1gz1mR9t2(26.12.2011)/definition/express-authority.html (26.12.2011) /definition/general-agent.html (26.12.2011) eville v C & A Modes Ltd (1945)Fernie v Robertson (1871)Ireland V Livingstone (1872).Hely-Hutchinson V Brayhead Ltd (1968)Bertram Armstrong v Godfrey (1830)Luxmore – May V Messenger May Bostock (1990)Great Northern Railway v Swaffield (1874)。
