Sales and Transactions- Commercial Law Flashcards
(44 cards)
Regulation of exclusion clauses
S.55 (3)- Some terms can never be excluded
S.55 (4)- Some terms can only be excluded in B2B transactions, and only when fair and reasonable
Determination of ‘Fair and Reasonable’- (1)
Strength of the bargaining positions of parties included, relative to one another.
Determination of ‘Fair and Reasonable’- (2)
Inducement to Contract/ Opportunity of P to enter in to a similar contract, with another party, without having to accept such a term
Determination of ‘Fair and Reasonable’- (3)
Buyer knew/ reasonably should’ve known about the exclusion clause- Customs of trade and prior dealings
Determination of ‘Fair and Reasonable’- (4)
Term inclusion was reasonable and practicable- As in it does not exclude conditions to the contract that could easily be fulfilled
Determination of ‘Fair and Reasonable’- (5)
Whether the goods in question were adopted, manufactured or processed to the special order of the customer
S.12 (1)
Transfer of best title and right to sell
“Niblett”- S.12
No right to sell- breach of IP law- ‘Nissly’-
“Software C”- S.12
No right to sell- time locked software- breach of S.12
Quote, Goode
‘S.12 is breached in any situation where sale is unlawful’
“Rowland v. Divall (1923)”
Transfer of title 0-T-S-B-J, Fundamental breach of S.12- no right to sell- insignificant if unaware or not- B granted double benefit, got to use car for month and so and full refund- S had claim against thief… if he could find him!
“Shannon Caravans”
Approved “Rowland v. Divall” in Ireland
“Mallen & Sons v. Rodgers”- Stolen Bookcase Case
‘A buyer who has bought goods from a seller in breach of S.12 is entitled to a full refund and damages for any further expenses incurred in repairing, resorting or receiving the goods’
“Kingsway Motors LTD”
‘A breach of S.12 may be repaired by later feeding through title to the goods, however this must occur prior to the buyer repudiating the contract and rejecting the goods’
S.13 X S.14 (2) X S.14 (4)
Belt and braces approach- often claimed as a tripartite
White, 2 quotes on S.13 X S.14 (2) X S.14 (4)
- “Each provision places a heavier duty than the one before”
- “Breadth of application narrows as you progress”
S.13- SBD- 2 ways
- Goods, unascertained/ future, described by buyer- SBD
- Goods, seen by buyer, packaged or labelled in some way and set out for display
90/95% of sales are SBD
“Egan v. McSweeney”- Explosive Coal Case
‘SBD- description must have been influential in the sale, as in one mu objectively and reasonably have expected it to influence the buyer, and must be relied upon’
“Christopher Hull Fine Art LTD”- The Munter Expressionist Case
Fax, per case note; CR- No claim under S.13 if:
-Buyer knew goods did not match description
-Buyer should’ve reasonably known the goods did not match description
-Buyer did not rely on description in their purchase
Goode- General Rule- SBD
Where descriptive words are used in the sale, and these are reasonably relied upon by the buyer, then it will be a SBD
As per White, difference between ‘description’ and ‘mere representation’
-SBD: ‘goes to the heart/ root of the contract’ & identifies ‘essential commercial characteristics of the goods’
-MR: ‘pure sales talk, rooted in opinion and not representation’
“Acros LTD”- Wooden Stave Case
‘Breach of S.13- 1/2 inch cut was an essential commercial characteristic of the contract’
“FW Moore LTD”- Tinned Fruit Case
3000 tins, 30 x 100 boxes specified- mixed boxes deliver 30,24,8,6- breach of S.13- SBD and against essential commercial characteristics of contract
“Randon Smith Line LTD”- Japanese Oil Tanker Case
Non-breach of S.13- the fact the ship was built under a different TEMPORARY name, in a different shipyard, was not an essential commercial characteristic of the contract
