With terms and conditions which should have been

With regards to the scenario
given, it can be seen that Harvey needs advising on his rights as well as any
remedies that he may have. Harvey is facing a few issues with regards to a
purchase that he had made. The area of law that is being looked at is implied
terms, exclusion clauses as well as buyer’s remedies. In order to give Harvey advice,
each issue needs to be broken down and discussed in further detail while
looking at statutes and other cases to determine what rights and remedies
Harvey does in fact have. 

Harvey runs his own building
company, but visited Litt Building Supplies Ltd which is a larger national
builder’s supplier. He discussed the required supplies that he needed with a
sales representative Lewis, the fact that he had done this showed that Lewis could
in fact have specialist knowledge regarding the products that were being
purchased, any information that could be wrong could impact on the case.

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The products Harvey specified
were 2000 Victorian style yellow clay bricks, paint that could withstand any
weather condition and 250 ash grey composite floor tiles which needed to
measure 15×15. If Harvey was to get anything differently from what he asked,
this could end up being a breach of implied terms.  

Terms and Conditions

When purchasing from Litt,
Harvey should have received Litt’s terms and conditions which should have been read,
Harvey acknowledges that he had received them even though he admittedly did not
read them. This can be seen as Harvey is bound by the terms regardless if the terms
and conditions were not read as shown in cases such as Parker v South Eastern
Railway1
and L’Estrange2,  as despite not knowing the full content of
terms and conditions Harvey was aware  that he should have read the terms and
conditions due to it containing important information. Developing on from this,
a delivery date of the 6th of December was agreed upon when all
products would be delivered by. However, if for whatever reason Harvey was
unable to complete the development by his deadline which was the 22nd
of December this would then lead to him having a £15,000 penalty clause.

Paint

The next issue that needs
looking at is with the paint. The paint was delivered on the agreed upon date
and so there is no issue with the delivery here, despite this however, it was
specified that Harvey required paint that could endure all weather conditions and
as it turned out the paint he was advised to get was in fact not suitable for
his purpose and was more commonly used for indoor paint. As previously mentioned
before, Harvey had discussed his requirements with a sales representative who
advised him to get the paint in the Markle paint range and therefore had not
seen this paint prior to the purchase. This could be seen to be a sale by
description which is covered by the Sales of Goods Act3
(SGA) more specifically section 13 which states “where there is a contract for
the sale of goods by description, there is an implied term that the goods will
correspond with the description.”4
Here, it can be seen the paint did not correspond with the description that was
given from Harvey. Furthermore, in section 14 of the SGA, there is an implied
term with the quality or the fitness of a products where the goods need to be
of “satisfactory quality”5
to be of that satisfactory quality they must meet the standards of what a “reasonable
person”6
would consider as satisfactory, the court would then look at five aspects of
the goods to conclude whether the goods are of a “satisfactory quality”7.
The court would look at the fitness of the purpose of the product, the
appearance as well as the finish, the freedom from minor defects as well as the
safety and the durability of the products8,
here it can be seen that the product was not for the fit for the intended purpose
as well as it was not durable either as after 5 days it then began to peel due
to weather conditions. More so, Lewis is a sales representative at Litt, it is therefore
his duty to be aware of the products, it can be seen that Harvey relied “on the
skill and judgment” of Lewis as stated in the case of Ashington9

There are various buyer’s
remedies which could be applied throughout this scenario, for this particular
issue of the paint not corresponding with the description the buyers remedy for
Harvey could be that there is a defect in the quality of the paint due to it
not being what Harvey had expected, as well as it not being fit for the purpose
that Harvey had mentioned to Lewis, this can be found in section 53 of SGA10.
Even though this may refer to a breach of warranty of quality sections 13 and
15 of SGA are conditions.

Bricks

The next issue that will be discussed is
the bricks. Harvey called Litt to discuss when the bricks would be delivered,
which the reply was that he would receive half of the bricks on the expected
delivery date while the remaining half would arrive 12 days late meaning that
there is an issue with delivery. On inspection of the bricks it was concluded
that there was no issue as to the quality, but there was an issue due to there
being partial delivery. In accordance to section 35A of the SGA it allows Harvey
to accept some goods but by doing so this “does not by accepting them lose his
right to reject the rest.”11 Giving him the ability to
either accept the amount that was delivered or return the whole ordered
purchase.

The buyer’s remedies for bricks is the
right to partial rejection, the benefit of this is that it can help minimize
the losses of goods that are not going to be delivered as it can be seen in the
case of Ritchie v Lloyd12, despite the circumstances
of the case the buyer was still able to reject the goods. Additionally, another
remedy is late delivery due to the remaining half of the tiles being expected
to come 12 days late, If Harvey was to go ahead and wait the 12 days for the
bricks then Harvey may be required through the duty of reasonable mitigation
and therefore negotiate with Litt another delivery date where the delay may be
only a few days.

Tiles

The next problem that needs to be
addressed is with the ash grey composite floor tiles. These did arrive on the 6th
and therefore means there is not an issue with the delivery, although on
inspection of the tiles Harvey noticed that 200 tiles are in good condition
whereas 50 are cracked meaning that they cannot be used. Within section 14 of
the SGA there is an implied term as to the quality of the product meaning that
it must be of an appropriate condition or Harvey to accept, more specifically
in section 14(2B)(c) it states that the product must be free from minor defects13 which 50 are not due to
them being chipped and therefore unusable, showing that the product was not
free from defects.

The buyer’s remedies for the issue of the
bricks is damages for breach of condition or warranty, more specifically
looking at where the goods are of an unsatisfactory quality as they are damaged
and is therefore “reject the goods”14.

All products which Harvey can be seen to
be unascertained goods which is described as goods which are chosen at random,
but the purchased goods must be of “that description and in a
deliverable state.”15 Some of the goods when
delivered where not as described and not in a deliverable state.

Exclusion clause

The final issue that will be discussed is
about Litts exclusion clause. As Harvey was seemingly unsatisfied with the service
he had received, he then decided to reject the tiles as they were damaged and
also wanted to reject the paint as well as the brick, Harvey also wanted
compensation as he was now unable to meet the deadline, however as Harvey did
not read Litts terms and conditions it meant that he was unaware of any exclusion
clauses that Litt may have in place which is “The buyer waives any right to
bring an action under sections 12-15 of the Sales of Goods Act 1979” which Litt
then relied upon to exclude their liability. Therefore, it is then important to
look at the Unfair Contract Terms Act16 (UCTA), as Litt had tried
excluding liability with the exclusion clause, it is important to look at
section 6 of UCTA where it states that liability that arises from “section
13, 14 or 15 of the 1979 Act… cannot be excluded or restricted by reference to a
contract term except in so far as the term satisfies the requirement of
reasonableness.” However where
in section 11 there is a reasonableness test the reasonableness test refers to
the exclusion clause being a “fair and reasonable one to be included having
regard to the circumstances which were, or ought reasonably to have been, known
to or in the contemplation of the parties when the contract was made.”17 Additionally in schedule
2 for the reasonableness test there are guidelines for the application of the
test, the first being the strength of the bargaining positions of the parties, this
refers to where the bargaining position lies which it would be with the larger
national store Litt, due to Harvey’s business being small in relation the next guideline
(b) being whether Harvey had the opportunity to enter a similar contract with
another business, which Harvey could have done this, (c) is whether the
customer had known or had reasonably knew about the existence of the term, in
this instance Harvey did not know about the exclusion clause he did however receive
terms and conditions and from this it could be made aware that Litt would have
had some exclusion clauses in place. (d) Being if there is term being excluded or
that restricts liability is some condition is not complied with and if it was
reasonable at the time of the contract, this can be seen to abolishes any
rights that Harvey may have if the purchased product is of unsatisfactory quality
which would then lead to Harvey suffering a big loss. The final guideline (e) being
if the goods were manufactured, or adapted in any way for the customer. The
order was special to the customer due to Harvey specifying his needs, due to
Harvey needing that in an appropriate amount of time to finish a job he had.

It can be
argued as well that the exclusion clause was not effective enough and was not
fully incorporated as seen in the case of Interfoto Picture Library18 where if there is a term
that is onerous, then the seller should have taken greater measures to bring it
to the attention of buyer.

Conclusion

To conclude, with the
aid of legislation and case law, it can be argued that in this scenario Harvey
would be able to reject the purchased goods despite the exclusion clause as it
can be seen as not effective enough, from this it is also clear that Harvey
does have remedies available to him and could be awarded damages, his damages
awarded would be what he had paid for the products as well as any damages he
might have incurred as he was unable to finish the development in time. Furthermore,
it can be seen as there is a breach of implied terms due to the exclusion
clause being overridden by UCTA.

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