A商务契约.docx

1、A商务契约Assessment task1Outcomecovered1Assessment task instructionsThe assessment is in the form of a written response to case study 1. There are three questions. Assessment will be done by means of one closed-book exercise. As an integrated task this should be completed in a maximum of three hours. Th

2、is should include time for reading and review.You must make use of the case study in your answer. In some parts, however, the information in the case study is a starting point and you should make use of case law and ideas that you have studied during study of the Unit. Candidates will be expected, a

3、s much as possible, to demonstrate the theoretical legal position in answer to assessment.Assessment Task 1Outcome 1Case Study 1Michael has recently had some really bad luck with some of his purchases. On three separate occasions he has made a purchase and had reason to believe that his consumer rig

4、hts have been violated.He decided to go on a walking holiday and purchased an all weather jacket. The manufacturers description stated that the jacket was completely waterproof, light enough to be comfortable in any weather conditions (because of the new type of material, keeping the wearer cool in

5、heat and warm in cold).They offered a 10 year guarantee, even stating that the jacket was of such a quality that it would probably last a lifetime.After wearing his jacket for only one day he contacted the retailer. He was very concerned. The zip had broken, water had penetrated and he had felt cold

6、.On returning from his holiday Michael bought an expensive garden maintenance set (this included electrical items such as mower and trimmer as well as hand held tools).As it was a high cost item he applied for credit from the credit company which normally provided finance for the shops customers. Wi

7、thin a few days of delivery, the mower and trimmer break down and the shop he bought them from is closing down.He buys the same set from another retailer. On close inspection he notices that the specification is not the same as the one he had seen displayed as a demonstrator (the electrical items we

8、re not as large and the hand held tools were fiberglass rather than stainless steel).Michael seeks advice about what to do in each of the situations.TaskRespond to Michaels request for advice.Include answers to all of the following as part of your response to Michaels request:1. Explain the rights a

9、vailable to the consumer as offered by the provisions of the Sale of Goods Act 1979 (as amended) and provide a suitable response to Michael.2. Outline the terms of the Consumer Credit Act 1974 and advise Michael of his rights.3. Explain the main points of the Trades Description Act 1968 (as amended)

10、 and its implications for purchase of the garden set.Assessment task1Outcomecovered1Suggested solution and making an assessment decision1. Sale of Goods Act 1979 (SOGA) defines a sale as: contract in which the seller transfers or agrees to transfer property in goods to the buyer for a money consider

11、ation, called the price.The original Act has been amended by the Sale and Supply of Goods Act 1994 and the Sale and Supply of Goods to Consumers Regulations 2002.The legal effect of a sale is that the purchaser obtains a real right over the goods. The contract can be verbal, in writing or partly wri

12、tten, partly verbal. If goods change hands without a money transaction this would be barter, and not cover by the Act. SOGA has some implied terms:The seller must have title to the goodsNo third party should have title to the goods which would prevent the buyer from obtaining good titleObligations a

13、rising cannot be excluded or restricted by agreement under the Unfair Contract Terms Act 1977 (as amended)Niblett Ltd V Confectioners Materials C. (1921)McDonald V Provan (Scotland Street) Ltd (1960)Goods sold must comply with their description (Section 13 SOGA 1979)Roberts & Co V Yule (1986)Grant V

14、 Australian Knitting Mills (1936)They must also be of satisfactory quality and be of a reasonable fitness for the purpose (Section14 (3) SOGA 1979)When considering whether goods are fit for the purpose, considerations would be given to:fitness for purpose for which goods are commonly usedappearance

15、and finishfreedom from most defectssafetydurabilityThomson V J Sears & Co (1926)Priest V Last (1903)Frost V Aylesbury Dairy Co Ltd (1905)There is a clear relationship between satisfactory quality and fitness for purpose.Where problems occur the buyer does not have to prove negligence on the part of

16、the seller. The strict liability under Section 14 of the Act means that the seller has to return both the purchase price and compensate for damage which the defective goods may have caused (provisions of SOGA only apply to the buyer).In response to Michael the following should be considered:The jack

17、et is not as described (Section 13 SOGA 1979) so Michael is entitled to a refund of the purchase price (Grant v Australian Knitting Mills)The jacket was not of a satisfactory quality (Section 14 SOGA 1979). Again this would lead to refund of purchase price (Priest v Last (1903) and it is not fit for

18、 the purpose (Section 14 SOGA 1979) giving him yet another reason for getting his money back (McCallum v Mason 1956).2. The credit agreement is an example of debtor-creditor-supplier agreement. Under Section 75 of the Consumer Credit Act 1975 both the creditor and the supplier are jointly liable in

19、respect of the breach of contract. He would claim against the credit firm for the full amount (connected lender liability).NB Michael would choose whether to claim against the creditor or the supplier.The Consumer Credit Act (1974) introduced a licensing system to cover all activities relating to cr

20、edit. It is the responsibility of the Director General of Fair Trading to licence those who provide credit.It is a criminal offence to provide credit without a licence.The Act controls regulated agreements and consumer hire agreements.Regulated agreements include: Running account credit, fixed sum c

21、redit, restricted use credit agreements, unrestricted use credit agreements.Consumer Hire agreements as defined in Section 15 of the Act is an agreement made by an owner of goods to hire goods to an individual known as the hirer (this is not a hire purchase agreement).Under Section 60 of the Consume

22、r Credit Act 1974 the document signed under the conditional sale or credit sale agreement should have a heading stating which type of agreement it is.Under the Consumer Credit (Agreement) Regulations 1983 the document must contain:Name and address of the parties.Cash prices where a restricted use, d

23、ebtor-creditor-supplier agreement.Amount of any deposit.Amount and timing of each payment.The APR (annual percentage rate) of the total charge for credit.The total amount payable.Details of any security provided to debtor.Details of any charges payable to debtor if in default.Information about the p

24、rotection and remedies available to the debtor.This must be signed and copies kept by both debtor and creditor.3. The Trade Descriptions Act 1968 provides protection to consumers through the criminal law. A false description means misleading to a material degree. It is a criminal offence for a perso

25、n, in the course of trade or business:To make a statement known to be false or recklessly make a statement which is false in respect of any services, accommodation or facilities.Wings V Ellis (1985)British Airways Board V Taylor (1985)Ford v Guild (1990)Under Section 2 of the Act a description which

26、 is misleading to a material degree (direct or indirect) can apply in respect of the following:Quantity, size or gauge of goods.Composition of goods (100%).Method of manufacture (machine made).Fitness for purpose, strength, performance, behaviour or accuracy.Other physical characteristics.Date, plac

27、e of manufacture.Conformity with a type of approval (British Standards).History of goods including ownership or use (mileage of car).In Michaels situation the seller might try to claim that there was a mistake made due to information supplied and that every possible thing had been done to avoid this

28、 situation arising. Michael would claim that the composition of the goods (100% stainless steel as stated on the demonstrator) was not upheld and therefore non-compliant with British Standards. Although they may have been fit for the purpose, they were not as described. Michael should receive a refu

29、nd he may accept another set if it was stainless steel.Assessment task 22Outcomecovered2Assessment task instructionsThe assessments are based on case studies. The assessments should be completed separately.Case study 2 relates to Outcome 2.Case study 3 relates to Outcome 3.Outcomes 2 and 3 are asses

30、sed without supervision. The case studies may be issued at the same time but the assessment tasks should be completed separately.You must make use of the case study in your answer. In some parts, however, the case study is a starting point and you should make use of case law and ideas you have devel

31、oped as you have worked through the Unit.Candidates will be expected, as much as possible, to demonstrate the relevant theoretical legal position.The marking guidelines set out the minimum requirements for success throughout the assessment. To succeed, candidates must meet the minimum requirements f

32、or every part of the assessment.The answers provided are outline answers, providing an outline. They should not be taken as the only suitable format for an acceptable answer. Students will be expected to explain the points made in relevant, appropriate case studies and, if possible state whether or not case law can be referred to in the advice offered.Assessment Task 2