about statutes for implied terms
Statutory implied terms are in a variety of different Acts.
· The Act will vary depending on whether the agreement is business-to-business or business-to-consumer.
· Business-to-business – Sale of Goods Act 1979 and Supply of Goods and Services Act 1982- don’t need to know these in detail! It’s in here to help evaluate.
· Business-to-consumer – Consumer Rights Act 2015 – need to know this one
general evaluation about statutes for implied terms
The Sale of Goods Act 1979 and The Supply of Goods and Services Act 1982 both include terms which cannot be included within a contract. An example being, there cannot be a term which excludes liability for death. Proving that these Acts are well thought out pieces of legislation.
The Consumer Rights Act 2015 has similar provisions to the Sale of Goods Act 1979 and Supply of Goods and Services Act 1982.
This is a positive because similar rights are given in a variety of settings so its clear business-business and business- consumers relationship
The courts are reluctant to imply terms into a contract because of the principle of ‘freedom of contract’ because they don’t want to interfere with initial plans of parties
The law is often criticised for conflicting with Parliamentary Sovereignty, but when Parliament legislate, sometimes this leads to more confusing outcomes. An example being the Consumer Rights Act 2015 which has failed to provide protection for those involved in private sales, e.g. eBay transactions.
Implied rights under the Consumer Rights Act 2015
Covers the rights and remedies available for consumers making a contract with a business (trader).
· Under this Act, terms are not implied, instead rights are given to the consumer and the trader/business has a duty.
Consumer S2(3)- CRA
‘An individual acting for purposes that are wholly or mainly outside that individual’s trade, business, craft or profession.’
meaning a person buying an item for personal use
Trader S2(2)- CRA
‘A person acting for purposes relating to that person’s trade, business, craft or profession, whether acting personally or through another person acting in the trader’s name or on the trader’s behalf.
meaning a person who is an expert/works in the field buying an item for them purposes.
whats a positive about consumers and traders being defined under CRA
(starting evaluation for CRA)
Both consumers and traders are defined under the Act which… upholds clarity as judges dont have to define and interpret defenition which upholds PS
Giving rights rather than implying terms is a better approach, its clear, standards are given of what consumers rights are wheras implying terms varies and uncertain- easy for lay people
The Act is useful as it ensures that Traders are still responsible even where somebody buys something through a third party i.e. through an agent
However its unclear what a third party inlucludes and modern selling apps like vinted. and its questionable whether expert falls under craft in a trader definition, may not be for their work but an expert.
what are the types of contract (s3(2)) the CRA applies to
Sale -
o Hire – buys
o Hire-purchase- borrows
o Contracts for the transfer of goods.- installments until fully paid
· The Act reforms and consolidates the law relating to unfair terms in consumer contracts and sets out specific remedies available to consumers in contracts. This includes digital content
who does the CRA apply to
The Act applies to contracts and notices between consumers and traders. The definition is a wide one, so it covers those who enter contracts for both business and personal reasons.
e.g. a writer who uses a computer for their personal use but also writing a book
· Traders will be liable when dealing through a third party e.g. an agent.
if pre contract information isnt accurate the trader is liable what does it include?
-adress complaints sent to
-total price for goods inc tax
- additional delivery charges
- arrangements payments,delivery, how long it will take
-telephone number, email
-identity and geographical adress of any third party trader
The required information in the contract will vary dependent on the contract being dealt with. E.g.
on premises contract- face to face at traders business premises
off premises contract- face to face but not at business premises
distance contracts (inc electronic)- none face to face
what are the sections of the CRA 2015
S.9 Right to Satisfactory Quality
S.10 Right to Fitness for a Particular Purpose
S.11 The Right Relating to the Description
S.9 Right to Satisfactory Quality- CRA
Under S.9(1), every contract to supply goods is to be treated as if it includes a term that the quality of the goods is satisfactory.
· S.9(2) - Satisfactory is defined as when the goods meet the standard that the reasonable person would consider satisfactory. Taking into account:
o any description of the goods
o price or other consideration
o all other relevant circumstances
· S.9(3) Satisfactory quality includes the state and condition. This takes into account:
o fitness for purpose
o appearance and finish
o freedom from minor defects
o safety
o durability
· Under S9(4), the above will not apply if:
o Defects are drawn to the attention of the consumer before the contract is made.
o The consumer examines the goods before the contract is made.
o The goods have been sold after inspection of a sample and the defect would have been apparent on a reasonable examination of the sample.
Rogers v Parish
Rogers v Parish
s.9
the car wasn’t of satisfactory quality so the claimant was able to reject the car and claim damages
S.10 Right to Fitness for a Particular Purpose- CRA
-applies to a contract of supply of goods, if before contract is made the consumer makes known to the trader any particular purpose.
-terms implied: that the goods are reasonably fit for that purpose of that which goods are usually or non usually supplied
There is no need to state the purpose of the goods then they are bought for ‘normal use’.
Grant v Australian Knitting Mills
if a purchaser has a sensitivity the seller is usually not liable when they do not tell the seller about it. if they do it must meet their specific purpose, where theres clear labelling- usually no breach
Griffiths v Peter Conway
Griffiths v Peter Conway
s.10 CRA
This case clarified:
a. D will not be liable if the goods are fit for the usual purpose they are used for.
b. If the purchaser has a specialist need they need to make the trader aware of this before the contact is made. E.g. Food allergy to a food trader or sensitivity to hair-dye to a hairdresser.
Grant v Australian Knitting Mills
s.10 CRA
able to claim
no need to state that underwear is worn on humans for section to apply (excess sulphite- nearly died)
S.11 The Right Relating to the Description
The Act states that every contract is to be treated as including a term that goods will match the description.
· This again is similar to the Sale of Goods Act 1979. The description can be implied, for example, when goods are on display
· The consumer’s statutory rights must also be stated, including the Consumer Contracts (Information, Cancellation and Additional Charge) Regulations 2013.
· When a ‘model’/ ‘sample’ of a particular good is seen or examined by the consumer, the good supplied must match the description of the models
s.9 CRA evaluation
p- clear guidence for lay people on what satisfactory quality should include- educated decisions to sue
dp- lessens need for extensive legal advise at the start of the claim and lessens the need for claims when there is clear guidence for when s.9 cant be applied- saves time
wdp- maintains the law being transparent for all but RM is subjective
s.10 CRA evaluation
p- traders take responsibility to ensure goods are fit for purpose- protects consumers
dp- prevents the consumer from being manipulated and entitled to a claim if they are misled- uphold freedom of contract
wdp- however may set an unrealistic standard for traders to be aware of how the good they are selling in unusual circumstances
s.11 CRA evaluation
p- prevents consumer being shown an amazing model of an item abd being given something completely different- fair
dp- especially when making larger purchases like sofas and household appliances as they will not be able to see the actual item until its in their home
wdp- however no two goods are exactly the same. with businesses selling on platforms like vinted and ebay they may be misled unintentionally- unclear where it stands.
remedies for the supply of goods CRA
The consumer has rights if goods are not as described. These are in addition to the usual contract remedies (e.g. damages).
- The short-term right to reject (s.20)
- The right to repair or replacement (s.23)
- The right to a price reduction or the final right to reject (s.24)
- The short-term right to reject (s.20)- remedies CRA
o This must be exercised within 30 days.
o If the goods are perishable then the time will be shorter.
o The consumer must make sure they inform the trader.
o The consumer can then claim a full refund – this should within 14 days, by the same method of payment without a fee.
o The trader must bear any reasonable costs of returning the goods or than the costs incurred by the consumer to get to the place to do the return. E.g. to the Post Office to return the item.
The right to repair or replacement (s.23)- remedies CRA
o The trader must do this within a reasonable time, without significant inconvenience to the consumer. A reasonable time takes into account the nature of the goods and the purpose within which the goods were acquired.
o The trader must bear the costs including labour, materials and postage.
o This cannot be exercised if it would be impossible to repair or replace the goods or if this would be disproportionate compared to other remedies.
o The fault must have been present from the time the good was originally delivered.
- The right to a price reduction or the final right to reject (s.24)- remedies CRA
o The trader has one opportunity to repair or replace, then this right is available to the consumer.
o If this right is exercised within 6 months, the refund cannot be reduced dependant on use, unless it is to do with the trade of motor vehicles.
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contract: formation of contract- offer, acceptance, consideration91
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formation of contract: ITCLR19
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formation of contract: privity24
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terms of contract- types of term13
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terms: implied and express terms20
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terms: implied terms- statute35
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terms: exclusion and limitation clauses- common law c22
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terms: exclusion/limitation clauses- statutory controls21
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vitiating factors- misrepresentation criteria21
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vitiating factors- types of misrepresentation (and remedies)11
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vitiating factors- economic duress13
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discharge by performance18
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discharge by frustration17
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discharge by breach10
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Remedies- Damages32
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remedies- equitable remedies10
