|
|
| |
|
| |
|
Essays on Consumer Studies
|
|
|
| |
| A young boat building partnership (FlyBy Crafts Co.) want to purchase specialist computer design equipment to assist them in designing speedboats. FlyBy don’t have the £12,000 cash price for the equipment but want to pay in monthly instalments, by direct debit. However, the suppliers of the equipment (a new but dynamic business recently established in the UK by two Eastern European computer design specialists) insist on full payment up-front. Unable to obtain the necessary finance (£12,000.00) from their bank, FlyBy approach a specialist finance broker who introduces the firm to Neptune Finance Co, who agree to finance the purchase. FlyBy enters into a credit agreement with Neptune under which Neptune will pay the purchase price direct to suppliers and firm will repay Neptune by twelve equal monthly instalments of £1,150.00.
In the negotiations leading up to the various transactions, the broker informed the firm that if they paid him a fee up front to secure the finance (£750.00), that sum would be deducted from the amount of credit to be repaid to Neptune.
Some six weeks after taking delivery of the computing equipment it becomes clear that the equipment is not fit for the purpose required. Attempts by the firm to contact the suppliers fail.
In addition, on checking the credit agreement, it is clear that the ‘securing fee’ of £750 has not been deducted from the amount of credit to be repaid. When Archie contacts Neptune Finance they claim to have no knowledge of any ‘securing fee’ charged by the broker and state that while they do sometimes charge such a fee, they didn’t in this case. The broker claims the sum was paid to Neptune Finance.
In addition, one of the partners of the firm has recently returned from a boat show in Cape Town South Africa to discover that a new prototype state-of-the-art transducer purchased by her with the firm’s credit card is not of satisfactory quality. The transducer cost £2000.00. The card issuing bank is refusing to accept any liability on the basis that the transaction occurred overseas.
Analyse the issues in the context of the Consumer Credit Act 1974. |
1500 words
|
|
|
|
| |
| Sally Dabble is a landscape architect working in a consultancy practice but in her spare time runs a dog boarding kennel and breeding centre on a small holding of two hectares owned by sally and her husband Richard.
She specialises in breeding a relatively rare type of pedigree dog-the German Wirehaired pointer. Her partner, Richard helps out but Sally makes all the decisions regarding the choice of animals, feed and equipment etc. Sally and Richard regard this as a hobby rather than a business. The income from the selling puppies amounts to no more than £1000 per year and is taken up by running costs, ie. Maintaining the premises and equipment and purchasing dog food.
Sally is particularly fond of her dogs and gives them all names. Her favourite is Herman, which she brought back personally after a visit to a breeder in Munich. Herman has proved an excellent stud, responsible for 15 litters of German Wirehaired Pointer pups. Sally regularly enters Herman in dog shows where he has won several awards and cash prizes averaging about £500 a year.
On 10th April 2003 Sally visited Feedo ltd, the largest supplier of animal foodstuffs in the locality, to buy dog food. She normally bought top brand, Pedigree Pal but was hoping to find something cheaper to reduce the cost of feeding the larger number of dogs which boarded over the summer holiday period. She looked at several types of dog food and compared prices. She saw a large display of “Feedo Dog Food”. Printed on the bags was the statement “All the nourishment your dog needs” and next to the bags was a notice stating “special offer. Sell-by date lapsed. 25% off normal price” The sell by date was shown on the label of the bags was “End of March 2003”
Sally then sought the advice of a sales assistant but the only one available was a young girl who did not appear to be very familiar with the products on display. Sally inquired about the composition of the feed and about the effect of the food being past its sell-by date. The girl told Sally that Feedo bought the ingredients in bulk from animal food processing companies and made it up according to the recipe prescribed years ago by the National Canine Association (NCA) and they had been selling it for many years without any problems. She also said that she thought its main constituent was chicken. They regularly sold off food at a discount and no harm would be likely to occur provided it was used up fairly quickly. Sally realised that foodstuffs would suffer bacterial degradation over time.
Sally decided to purchase 5 bags of the food. She was given a sales invoice on which the assistant had written “5 x 10 Kilo sacks Feedo Dog Food. Sell-by date lapsed. Special discount 25%. Cash price £100.” Sally took this to the cash point and paid by cash. On the reverse of the invoice was printed “Terms of Sale”, including the following:
5) Feedo ltd hereby agree to refund purchase money in full for any goods supplied on proof that they fail to comply with commercially recognised standards of quality, or to correspond with any written description applied on labels, packaging or other documents supplied with goods.
6) Purchasers must satisfy themselves as to the suitability or fitness for any particular purpose of any goods supplied, and are deemed to have placed no reliance on employees or agents of Feedo Ltd in the selection of such goods.
7) It is specifically provided that any claim under clause (5) above must be brought within 10 days of delivery of the goods concerned.
8) Any damages or compensation payable shall in no circumstances exceed the purchase price of the goods concerned.
9) These terms of sale do not affect the statutory rights of consumers.
A few days later Sally started to give the food to Herman and also to three of her pregnant German Wirehaired Pointer bitches. Two weeks later these animals became ill. Herman became lethargic and bald patches appeared on his coat. The bitches aborted their pups. Sally called the vet who did tests which resulted in the discovery of bacterium called “Nasteria” in the food. Nasteria affects the digestive system. It is well-known to be fatal to poultry, but did not normally cause harm to other animals or to humans who ate infected meat. Recently however the National Canine Association (NCA) magazine reported that tests have shown that high doses of Nasteria as well as causing temporary digestive problems could cause infertility and abortions in certain breeds of pedigree dogs and warnings have appeared in the press that women should avoid eating battery eggs when pregnant because of the increase in the instance of Nasteria outbreaks.
Herman and the other German Wirehaired Pointers remained ill. They had regular bouts of digestive upsets. The bitches lost a great deal of weight, were permanently infertile and reluctantly Sally had to agree with the vet that they should be destroyed. But she could not face losing Herman. She bought three more German Wirehaired Pointer bitches-despite the vet’s advice to the contrary, hoping this would help Herman. But he showed no interest in them and refused to mate. Sally eventually agreed that it was best for Herman to have him put down.
Word spread around the area about the outbreak of Nasteria, and dog owners who had previously sent their pets to the kennels now cease to do so. Sally is distraught. She has become depressed and short tempered and she worries that she and Richard may never be able to have children. She regularly fails to go into work and the partners in the landscape consultancy now feel they cannot support her application to be a partner in the firm as she is not putting in the hours necessary to justify that position.
Richard has suffered severe stomach pains which were diagnosed as having been caused by the same bacteria as found in the dog food some of which he handled during the previous weeks. He had to have treatment in hospital and while he was away Sally had to employ a part-time worker to look after the kennels. This cost them £200 in wages.
Sally and Richard now wish to claim from Feedo Ltd all possible damages including the purchase price of the dog food, the loss of the valuable prize winning Herman and the bitches, vets fees, cost of buying replacement dogs and rearing them to maturity, loss of income from sale of puppies and from the kennels, loss of potential prize money from shows, physical injury to Richard and the cost of the wages for the part-timer, the loss of the increased income Sally would have obtained in becoming an equity partner in the firm plus emotional stress placed on her and Richard by these traumatic events.
Feedo Ltd denies liability, and states that in any event the terms of sale protect it from any liability beyond refund or replacement. These terms are similar to those operating in numerous other contracts between farmers and animal feed merchants over many years. It is agreed there is no negligence by Feedo Ltd or its employees.
Question
On the facts given discuss
a) ONE of the grounds on which the Dabbles can bring a claim, ie one express term or one implied term,
• Then discuss
1) the effect of the written terms of sale on such a claim, (If you conclude that Sally is unlikely to succeed in her claim given your conclusions in (a) discuss this hypothetically; AND
2) the basis for quantifying damages should the claim succeed. (if you conclude that Sally is unlikely to succeed in her claim given your conclusions in (a) and 1) above, then discuss hypothetically) |
3000 words
|
|
|
|
| |
|
|
