Consumer Law and Its Rights - Case Study Example

Answer any THREE questions Advise Helen, who had a small business selling and repairing computers, in the following situations Helen, who had problems with her back, wanted a new bed. When she went to a store, Beds-u-like, she explained about this to the sales assistant, Alf, and asked him to recommend a bed that would be suitable for someone in her condition. Alf had only been working in Beds-u-like for a week and knew very little about the products but he recommended the most expensive bed in the shop, telling her it would be ideal for someone with her problems. When Helen said it was too expensive, Alf agreed to reduce the price by 10% as a “special offer”. Helen agreed and bought the bed paying £200 cash and £500 balance by means of her Alvely credit card. After using the bed for two weeks, Helen’s back became much more painful. A friend of hers, a physiotherapist, looked at the bed and told her it was completely wrong for her condition. Despite this, Helen kept sleeping on the bed until, one night two weeks later, the bed frame collapsed and Helen fell on the floor further injuring her back. Helen phoned Beds-u-like to complain but found that they had gone out of business. Advise Helen. In the above the main issues that need to be addressed are misrepresentation and rescission. Any possible claim that Helen might have with regard to the injury caused to her back should also be discussed. A further consideration with the above situation centres on the problem that Helen might have in recovering her money as the company is no longer in business. In this particular case Helen might be able to receive a refund by claiming a charge back against her credit card. If she had not used her credit card for the purchase she might not have been able to recover any of the money expended on the bed. Dealing first with the issue of misrepresentation and the possible actions available for such a claim, it is necessary to examine the law on misrepresentation. When considering misrepresentation it is important to note the elements required under the Misrepresentation Act 1967 to substantiate such a claim. In determining whether a misrepresentation has occurred the court will require proof that the person claiming misrepresentation was induced into entering into the contract as a direct result of comments made by the other party. Under this Act the courts will consider that a misrepresentation has occurred if the plaintiff can show that the respondent made a false statement about the product which induced them into entering into that contract. Historically the courts have recognised three distinct forms of misrepresentation, fraudulent misrepresentation, negligent misrepresentation1 and innocent misrepresentation2. When determining damages it is important for the court to distinguish whether the misrepresentation has been fraudulent, negligent or innocent. Fraudulent misrepresentation occurs where the person making the representation to the plaintiff made the statement without belief in the truth of that statement. Case law demonstrates its acceptance of fraudulent misrepresentation in situations where the person making the statement knew that the representation was false as well as on occasions where that person was reckless or did not care whether the representation was true or false3. Where fraudulent misrepresentation is proven the claimant will be allowed to rescind the contract, claim damages or both. In situations where the claimant is alleging that the misrepresentation occurred as a result of the negligence of the other party the onus us then placed on the respondent to disprove the negligence. This would mean that the respondent would have to prove that he had reasonable ground to believe and did believe up to the time the contract was made the facts represented were true4. In the scenario above it would be unlikely for the court to accept a claim of fraudulent misrepresentation as the shop assistant made the claims about that particular bed believing those claims to be true. It is therefore not necessary to consider case law in relation to fraudulent misrepresentation. This was deemed to be the case in Derry v Peek (1888)5 where the court held that there had been no fraudulent misrepresentation based on the fact that the plaintiffs could not prove that the director lacked honest belief in the statement he had made. Given the difficulty in proving fraudulent misrepresentation most claims for misrepresentation are either brought under negligent misrepresentation or innocent misrepresentation. The general rule in relation to negligent misrepresentation is that the defendant has been careless in the representation made to the claimant without having a reasonable basis to believe that the statement is true. Negligent misstatement was first recognised in the case of Hedley Byrne v Heller & Partners Ltd [1964]6 in which the House of Lords determined that it was possible to claim for pure economic loss where such a loss has not occurred arising from a contractual relationship. In this case the plaintiffs were advertising agents who wanted to check the financial position of a prospective customer that had submitted a large order. The plaintiffs asked their bank to get a report from the customer’s bank, Heller & Partners Ltd. The court found that the respondents ought to have known that the information supplied by them might be relied upon by the plaintiff in determining whether to enter into a contract with the customer. In the final summation the court determined that the disclaimer contained in the heading was sufficient to absolve the respondents of liability for the negligent misstatement7. This can be contrasted with the case of Smith v Eric S Bush [1989]8 where the court determined that the liability waiver was insufficient to absolve the respondent from liability. In this case the respondents were surveyors acting on behalf of a mortgagee. Having conducted a survey of the property the surveyors stated that there was no significant repairs required on the property. As a result of this the plaintiff purchased the house. Soon after the chimney stack fell down and the plaintiffs brought an action for negligent misstatement. The court held that it was normal practice for a purchaser to rely on the evaluation provided by the surveyor and that to allow the liability waiver to absolve the respondents of liability would breach the test of reasonableness dictated by the Unfair Contract Terms Act 1977. In this case the court found that the respondents should be held liable for the misrepresentation and they were ordered to compensate the plaintiffs for their loss. In Esso Petroleum Co Ltd v Mardon [1976]9 Lord Denning stated that negligent misrepresentation should be actionable ‘if a man, who has or professes to have special knowledge or skill, makes a representation by virtue thereof to another…with the intention of inducing him to enter into a contract with him, he is under a duty to use reasonable care to see that the representation is correct, and that the advice, information or opinion is reliable.’ The court has deemed innocent misrepresentation to have occurred in cases where the person making the representation can demonstrate that they had reasonable grounds for believing the false statement to be true10. The general remedy for innocent misrepresentation is in the form of rescission in order to place the parties in the position they were in before the contract had taken place. Innocent misrepresentation was deemed to have occurred in the case of Curtis v Chemical Cleaning Co [1951]11 in which the respondents asked the plaintiff to sign a document absolving them of any liability that might be caused to the item of clothing whilst carrying out the cleaning process. In this instance the assistant who asked the customer to sign did not know that the disclaimer included any damage to the fabric of the dress and had wrongly assumed that the disclaimer was only in respect of the beads and sequins12. As a result of this the shop assistant did not alert the customer to the disclaimer for any fabric damage. The court held that the respondents had not deliberately deceived the plaintiff and allowed rescission of the contract on the grounds of innocent misrepresentation. A similar decision was reached in Rex v Kylsant (Lord) [1932]13 stating that even though the statements made in the prospectus were literally true, the omissions from the prospectus were sufficient to render the entire prospectus as false. In order for the court to deem that a misrepresentation has been made the court will examine the comments made by the parties. The court in Dimmock v Hallett (1866)14 held that mere commendatory puffs, opinions or beliefs would not amount to a misrepresentation. In this case the respondent described the land as ‘fertile and improvable’. The court stated that this was a belief of the vendor and could not be regarded as a misrepresentation. Having considered the law in relation to misrepresentation it is now necessary to consider whether the goods could be regarded as fit for the intended purpose as dictated by s14 of the Sale of Goods Act 1979. Helen might also be able to rely of s3(1) of the Consumer Protection Act 1987 which states subject to the following provisions of this section, there is a defect in a product15 for the purposes on this part if the safety of the product is not such as persons generally are entitled to expect; and for those purposes safety in relation to a product, shall include safety with respect to products comprised in that product and safety in the context of risks of death or personal injury16. The Act goes on under subsection 2 to enhance the meaning of subsection1. In this subsection it states the what persons generally are entitled to expect in relation to a product all the circumstances shall be taken into account including (a) the manner in which, and purposes for which, the product has been marketed, its get-up,… and any instructions for or warnings with respect to, doing or refraining from doing anything with or in relation to product… In relying on the SGA Helen could aver that the bed was not fit for the intended purpose especially since she had specifically mentioned to the sales assistant the need for a bed to assist her condition. She could also argue that the bed was not of satisfactory quality as demonstrated by the fact that the bed collapsed not longer after she purchased it. Under s14(2)17 of this Act there is an implied term that the goods supplied under the contract are of satisfactory quality. Goods are deemed to be of satisfactory quality if they meet the standard that a treasonable person would regard as satisfactory, taking account of any description of the goods, the price…and all other relevant circumstances. The Act goes on to state that quality of the goods includes their state and condition. The areas of quality covered by the Act are fitness for purpose18, appearance and finish, free from minor defects, safe and durable. Helen could rely on the case of Gregg & Co (Knottingley) Ltd v Emhart Glass Ltd [2005]19 to assert her right to reject the goods. In this case the court held that the product was obviously defective and was not fit for the intended purpose so the plaintiff was entitled to reject the goods and be recompensed for these items. Similarly in Fiat Auto Financial Services v Connelly 200720 the court held that the buyer was entitled to reject the vehicle even though he had used it for a significant period of time. The court stated in this case that the buyer had made it known to the seller that there were defects with the vehicle and the seller had been attempting to remedy these faults. Had the buyer not made the seller aware of the faults then the outcome might have been different. Generally speaking the customer has the right to demand a refund if they are not satisfied with the goods because they are faulty21. This would mean that Helen could insist on getting her money back, however, as the company is no longer trading Helen would have to make a claim as a creditor of the company. Fortunately for Helen much of the transaction was paid for using her credit card. Under s75 of the Consumer Credit Act 1974 the credit card can be held liable for a misrepresentation if the goods are valued between £100 and £30,000. Although the first course of action should be against the supplier if the supplier is unlikely to be able to compensate the buyer, as in the above case, then there is a likelihood that the court would order the credit card company to reimburse Helen for her losses. The conclusion from the above is that Helen ought to be able to rescind the contract as the goods were misrepresented to her and were also unfit for their intended purpose. The company are likely to argue that the misrepresentation was an innocent one as the sales assistant believed that the bed would be fit for the intended purpose. Given that the bed broke soon after purchase Helen would be able to reject the bed on the grounds that it was not of satisfactory quality. This would entitle her to rescind the contract and be awarded her money back. As the company has ceased trading Helen might have to rely on claiming against the credit card company as she might not be able to get any remuneration from the supplier. Helen could also claim for any injuries sustained when the bed collapsed, although this would only be allowed against the supplier of manufacturer of the bed, and as the company has now closed she would have to claim as a creditor of the company. 3. Helen had 3 “Minim” computers in store. Phil went into the store and chose one of these computers. He paid a deposit and said he could come in the next day, pay the balance and collect the computer which Helen put on one side. Queenie telephoned Helen and agreed to buy a Minim computer from her. Queenie said she would come in and collect the computer the next day and Helen put one of the remaining computers on one side attaching a label with Queenie’s name on it. Later that day Rob came into Helen’s store and agreed to buy the final Minim computer provided Helen modified it to increase its memory capacity. Helen said that she would do this and let Rob know when the computer was ready. Helen did the work within the next hour and left a message on Rob’s answer phone to say the computer was ready for collection. Rob had left the phone at work and did not pick up the message. That night Helen’s store was broken into and all her stock, including the Minim computers, was stolen. Advise Helen of her rights and liabilities in relation to Phil, Queenie and Rob. In order to be able to advise Phil, Queenie and Rob it is necessary to examine the law in relation to non delivery of goods. Under s29 of the Sale of Goods Act 1979 there is a duty placed on the seller to deliver the goods to the place designated by the buyer. In cases where there is no agreement between the parties in respect of the time for the delivery of the items the seller has a duty to send the goods within a reasonable time22. Failure to deliver the items as requested entitles the buyer to rescind the contract and reject the goods if the seller attempts to deliver the goods after the agreed date. S14 of the Supply of Goods and Services Act 1982 also stipulates that in a contract there is an implied term that the supplier will carry out the service within a reasonable time. Neither of these two Acts actually defines what would be regarded as a reasonable time. To a certain extent the courts rely on past cases to determine what would be classified as a reasonable time. In Hicks v Raymond and Reid [1893]23 the court held that there had not been a beach of the contract by the non delivery of the goods as there had been no stipulated time by which the buyer had requested these to be delivered by. The court also stated that the reasonable time element was difficult to establish as in the circumstances of this case the lack of available labour could not have been foreseen and therefore the delay complained of was reasonable in the circumstances. When reaching the conclusion in this case the judges referred to the decision of Lord Selborne in Postlethwaite v Freeland24 where he stated ‘if on the other hand, there is no fixed time, the law implies an agreement to discharge the cargo within a reasonable time; that is a reasonable time under the circumstances25. In Taylor v Great Northern Railway Company26 Lord Blackburn stated that ‘a reasonable time meant what was reasonable under the circumstances as distinguished from the ordinary time.’ Using these cases as a guideline would seem to suggest that the respondents’ claims against Helen might not succeed as the burglary could be classed as an unforeseen circumstance. In Shawton Engineering Ltd v DGP International Ltd (t/a Design Group Partnership)27 the court held the defendant not to be in breach as the plaintiff had not made it clear from the beginning that time was of the essence for the performance of the contract. There is a further difficulty in this area in that Helen had left an answer phone message for Rob telling him that the computer was ready for collection. As Rob did not get the message because he left his phone at work Helen could argue that if he had received his message the computer might not have been stolen in the burglary as Rob would have been able to collect the computer beforehand. All three respondents could argue that Helen was responsible for ensuring that the goods were not damaged or lost before they were delivered to him. He could argue that until the goods are delivered to the buyer the seller is responsible for ensuring the safekeeping of the items. This was the case in Lotus Cars Ltd v Southampton Cargo Handling Plc (The Rigoletto)28 where the court held that the defendants had a responsibility to ensure the storage of the cars up until the time when these were shipped for delivery. In this case one of the cars were stolen from the compound and the defendants were held to be liable for its loss. Given that it is now impossible for Helen to perform her part of the contract it is likely that the court would allow the parties to rescind the contracts. This would mean that Helen would have to return any deposits collected in order to place the parties in the position they would have been in if the contracts had not been entered into. 4. Helen went to Magnum’s shop to obtain a television for her home. She told Max the sales assistant; she wanted a television that was “HD ready”. Max recommended a particular television and told her it would satisfy all her requirements. The set cost £2900. Helen agreed to take it on hire purchase from Ready Money Plc (RM Plc). As she was in a hurry Helen did not have time to fill out RM’s proposal form in the shop so she took it home with her and completed it there, returning it to the shop the next day. Magnum gave her the top copy agreement and, six days later, after she received the second copy of the agreement signed by RM Plc, Helen had the television delivered to her home. She then discovered that the set was not HD ready. Advise Helen of her rights, if any against Ready Money and Magnum. In order to advise Helen of her rights against Magnum and Ready Money it is necessary to consider the ways in which a contract can be avoided as well as ways the grounds on which the television could be rejected. This will involve consideration of the law in relation to misrepresentation as well as the ways in which a contract can be avoided under the Consumer Credit Act 1974 and the Consumer Protection (Cancellation of Contracts Concluded away from Business Premises) Regulations 1987. Although Helen went to the shop to purchase the television the fact that the contract was not signed in the shop could entitle Helen to substantiate a claim under the Doorstep Selling Directive 85/577/EEC. In considering misrepresentation in this case it is important to consider whether the misrepresentation would be regarded as fraudulent, negligent or innocent. In proving this Helen would have to demonstrate that the actions of the sales assistant amounted to either a fraudulent, negligent or innocent misrepresentation. Misrepresentation occurs where the claimant is induced into entering into a contract with the respondent as a direct result of the statement made by the respondent. In this case this can be averred from the fact that Helen enquired whether the television would be HD read and upon the assurance of the sales assistant decided to enter into a credit agreement to buy it. As it might be difficult to prove that the respondent deliberately lied about the capabilities of the television in order to persuade her to buy it, Helen is more likely to have to rely on proving negligence or innocent misrepresentation. The courts have accepted claims for misrepresentation in situations were the sole reason for entering into the contract was not based on the misrepresentation as was the case in Edgington v Fitzmaurice29 in which the plaintiff was induced by the misrepresentation as well as his own mistaken belief that he would have a charge on the assets of the company. In this case Bowen LJ stated that the test of misrepresentation should be based on “… what was the state of the plaintiff’s mind, and if his mind was disturbed by the misstatement of the defendants, and such disturbance was in part the cause of what he did the mere fact of his also making a mistake himself could make no difference ” The courts have also allowed claims for misrepresentation in situations were the claimant had had the opportunity to discover the truth but had opted not to and had entered into the contract regardless. This was the case in Redgrave v Hurd30 in which the plaintiff could have inspected the accounts of the business before agreeing to buy it. The plaintiff had declined to do this but the court held that he was still entitled to claim for misrepresentation regardless. This would mean that Helen should be entitled to rescind the contract even if she had been given the opportunity to test out the television in the store before buying it. Having determined that Helen would be entitled to claim based on the misrepresentation made by the sales assistant it is necessary to consider easy in which the contract can be avoided in case the court reject her claim on the grounds that the respondent had an honest belief that the television was HD ready. Under s67 of the Consumer Credit Act 1974 buyers have the right to cancel the contract so long as this is done before the end of the 5th day after the agreement has been given to them. In order to be able to exercise this right the deal cannot have been made over the phone or the agreement was not signed at the seller’s workplace or office. In essence if the agreement is signed in the buyer’s home they will have the right to cancel. The seller has a duty to provide the buyer with a written notice explaining the cancellation process and how long the buyer has in which to cancel the contract in. cancellations must be in writing to the address supplied on the notice. Any deposit paid must be refunded if the agreement is cancelled within the time limit. It was held by the court in the case of Office of Fair Trading v Lloyds TSB Bank Plc [2007]31 that a 5 to 14 day cooling off period should apply to credit agreements. In this case the court stated that plaintiffs should be allowed to cancel the agreement and that to prevent them from doing so would be unfair. Under the Consumer Protection (Cancellation of Contracts Concluded away from the Business Premises) Regulations 1987 any contract that has been signed away from the business premises can be avoided. The person signing the contract has five days from the receipt of the notice of the agreement in which to write to the company to terminate the contract. If the buyer or borrower delays in replying they lose their right to cancel and the contract is deemed as being affirmed and the conditions of the agreement have to be adhered to. The Doorstep Selling Directive 85/577/EEC allows anyone that has signed a contract within their own home to avoid the contract. The Directive entitles the buyer or borrower to be able to cancel the contract within the cooling off period. In the case of Schulte v Deutsche Bausparkasse Badenia AG (C350/03)32, the European Court of Justice held hat the consumer was entitled to cancel the contract and to be released from any obligations under the contract. A similar decision was reached in Heininger v Bayerische Hypo- und Vereinsbank AG (C481/99) [2004]33 in which the court ruled that mortgage loan agreements should also be covered by the Doorstep Selling Directive and that the borrower was entitled to a seven day cooling off period in which to cancel the contract. The Doorstep Selling Directive was also invoked in the case of R. (on the application of Khatun) v Newham LBC [2003]34. In this case the plaintiff was told that if he refused to sign the tenancy agreement, even though he had not been given an opportunity to view the accommodation, his accommodation that had been arranged by the council at a bed and breakfast would be cancelled. The authority also informed him that refusing to sign the agreement would terminate their responsibility to house him and he would be responsible for finding his own accommodation. The court held that getting him to sign the agreement without giving him the opportunity to view the property and not getting the agreement signed in the workplace was a breach of the Directive and therefore any agreement signed by him would be invalid. From the above it would appear that Helen should be entitled to cancel her agreement with Magnum and Ready Money. The Consumer Credit Act 1974 allows the purchaser up to 14 days in which to change their mind. In this case only 6 days have elapsed since the signing of the agreement which means that she is within the stipulated time limit to be able to cancel the agreement. The fact that the contract was signed at her house instead of at the workplace or concluded over the phone would also entitle Helen to cancel the contract so long as she acted fairly quickly. The Doorstep Selling Directive could also be invoked in order to insist that the respondents honour the cooling off period that has been incorporated into UK legislation through the Directive. The respondents could only insist on the contract being upheld if Helen had failed to contact them straight away. It is unlikely that the court would order Helen to honour the contract in this case. The courts are likely to allow her to rescind the contract. Bibliography Beale, HD, Bishop, WD, Furmston, MP, Contract Cases and Materials, 3rd Ed, 1995, Butterworths Bixby M.B., Beck-Dudley C., Cihon P.J. The Legal Environment of Business, (2002). Civil Procedure Volume 1 2002, Sweet & Maxwell Civil Procedure Volume 2, The White Book Service, 2002, Sweet and Maxwell Clark, A M, Product Liability, London, Sweet & Maxwell, 1989 p29 Dignam, Alan J., “Company Law”, 4th ed. / Alan Dignam, John Lowry, Oxford Oxford University Press, 2006 Goode, R M, “Commercial law ”, 3rd Edition, London, Penguin 2004. 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Bush [1989] 1 AC 831 Taylor v Great Northern Railway Company Law Rep. 1 C. P. 385. Trac Time Control Ltd v Moss Plastic Parts Ltd (t/a Rowan Plastic Parts Centre) [2004] EWHC 3298 Veedfald v Arhus Amtskommune (C203/99) European Court of Justice (Fifth Chamber) [2001] E.C.R. I-3569; [2003] 1 C.M.L.R. 41; (2002) 66 B.M.L.R. 1; Times, June 4, 2001 Statutes Consumer Credit Act 1974 Consumer Protection (Cancellation of Contracts Concluded away from Business Premises) Regulations 1987. Consumer Protection Act 1987 Doorstep Selling Directive 85/577/EEC. Misrepresentation Act 1967 section 2(1 Sale of Goods Act 1979 s29(3) Supply of Goods and Services Act 1982 Unfair Contract Terms Act 1977 Read More