A) contract wherein there is a term that

A)        Gary refused to pay a full refund to
Brendan after the breakdown of the car he bought 3 weeks ago from Gary’s
Autos(GA). Hence, the overarching issue here is whether can Brendan claim for
the full refund or replacement instead.

First,
we need to ascertain is there a breach of term. There must be a sales contract
wherein there is a term that goods are of satisfactory quality1 and a
reasonable man would determine satisfactory by considering the factors2.3 Fitness
of purpose is a specific purpose that surpasses a common purpose of goods.4
Description relates to an essential ingredient of a car.5 Hence,
it is clear that this car is of satisfactory quality term as the fact it is new
RR car and a defect is unexpected and acceptable, but its fault will be expected
if he purchased an old car.

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However, it is
difficult to forecast result where no defects are seen but we can measure
whether goods are ‘sub-standard’ by enquiring the court broadly. Cases falls in
s.9(3) will be acceptable.6
 Firstly, the question to the price of
new car for £12,000 without reduction and describes as having good performance.
Court apply the principles of price and description in raising expectation to
the car7 where
paying a high price and labelled as range rower will generate a high expectation
to the performance and reliability. Mustill J also expressed that it must be dependable
in driving from one place to another.8 Secondly,
the court might consider the adverts statement made by RMC. This clearly fall
under public statement regarding specific feature9 ie.
breaks as RMC did make an internet advertisement for ‘Reliant Roger’. However,
RMC can argue this is irrevocable due to mere puff statement.

Hence,
it is under the hands of RMC to raise a defense10 if there
is an acknowledged breach of s.9(1) by court. However, the seller can argue if
the buyer did examine the car before purchasing and no defense is given if
there is a clear defect before buying. On the fact, Brendan bought the car
after a test drive but is unclear whether is there defects identified by the
buyer before purchased and was the defect revealed during the examination. Nevertheless,
we can conclude there is a breach to satisfactory quality term due to the
internal problem of the car.

(i)        Next, whether can Brendan demand a full
refund when he goes to GA day after the car breakdown. There is no immediate
right to refund if gone past the limit. Brendan has right to receive refund as s.9(1)
is breached11
and he is qualified on the 30 days limits short term right to refund after proprietorship
has transferred as it happened 3 weeks after purchased.12 Hence,
GA must refund to Brendan as he demands it straight on the day after breakdown.
However, court can reduce the refund as Brendan used the car.13

(ii)       Besides, whether is Brendan able to get a
replacement car after 2 weeks of the breakdown despite that Gary refuses as he
claimed that the defects are done by Brendan’s reckless driving and suggest for
a repair due to the drop-in value if he insist on replacement. Repair and
replacement remedies is provided within 6 months if goods conformed to the
contract.14
 It is hard to prove defects are caused
by Brendan’s mistreatment. Hence, as long as Brendan show the defects within 6
months, then will presumed to be exist at the time of sale.15
Plus, the breakdown of the car is qualified to a right to replacement16 and GA
must replace it subjected to s.23(2)(a)&(b)17. Court
may use the disproportionality test as a guideline.18 Replacement
of a new car is considered disproportionate to repair remedies as is costly to
GA. Hence, GA must repair the car even though the repair is costly and left the
choice on consumer to choose19 as Weber
v Wittmer20.
Thus, it is up to Brendan to choose either a repair, replacement or refund. However,
if GA company persist in their repairing option, Brendan can ask for specific
performance to force GA for replacement21 or can
ask GA for final refund or discount if is not accomplished in reasonable time
or a replacement defective.22

B)        This question regards to digital
contents(DC) contracts and the main issue is whether can Ringo choose for a
discount or refund on the apps he bought to learn Italian from LB. Firstly, we
need to examine which term is the app fall into. In DC contracts, the apps may
fall under the satisfactory quality term as it fits the factors of DC to fit
for all common purposes23 eg. The
app is suitable to learn Italian.

However,
this is rebutted with a separate term that DC reasonably suit for any particular
purpose where Ringo expressly made known to LB24 about
the apps he needed on vocabulary of food and nature initially. This will apply as
Ringo indicates that he wants the app to perform specific function and will be
breach if purpose had been made known but does not fit the specific purpose.25 Clearly
Ringo had sufficiently told LB his purpose on getting an Italian apps which has
food and nature related language and is contrasted with Griffiths v Conway26
and Slater v Finning27
where no breach is on the seller as buyer did not communicate to the seller on
his particular needs.28
Nevertheless, LB may argue that the problem is not on the app itself and could
be Ringo’s phone or computer incompatibility software issue as the apps usually
suitable for specific purpose. Moreover, Ringo bought the apps reasonably by
relying on LB’s skill and judgement29 as LB
is a professional. Undefinable, LB has no reliance defense and reasonably bears
the burden to prove that Ringo did rely on him30.31  Unfortunately, no case to overturn this
presumption. Hence, this breached the fitness for particular purpose term.

Furthermore,
Ringo can ask for price reduction as there is no short term to reject/refund on
DC contract.32
This only apply subjected to s.44(3). The price must be decrease to an
appropriate sum which may amount to full refund in 14 days without postponement.33

C)        The issue is how far can the supplier
being forced by consumer to correct the problem causing by a faulty service.
The service is seen in a way which is not carried out with reasonable care.
Reasonable care defined as ‘trader must provide service with reasonable skill
and care comparable to supply contract service’.34 Next is
whether supplier acted with reasonable care and skill. We assumed that a professional
trader negligently carries out the service with the lack of reasonable care. Generally,
there is a breach on quality or fitness term if the outcome is unsatisfied no
matter supplier exercises reasonable care as it may not be supplier’s
negligence but a malfunction in manufacturing process. Moreover, breach is
established if standard business practice(SBP) is not followed but no breach is
established if SBP is followed and ended up with faulty result as Bolam v
Friern35
and Latimer v AEC36.37 It is
easy to establish fault if supplier has control over it eg. Weed a garden badly,
but it is difficult on establishing fault on service eg. Machinery due to
technical issue. Thus, we can conclude to have possible breach in not
performing expected service.

            Furthermore, remedies are provided
if breach is satisfied. Firstly, repeat performance(RP) is provided by supplier
if consumer needs to an extent to finish the performance which conform the
contract as either do the whole thing again/correct the defect38 ie.
change the work originally missed out/remove the stain, nails and to service.
Additionally, RP must be complimentary and done within reasonable period
without substantial troublesomeness to consumer.39  However, supplier can refuse RP if impossible40 but no
formal ‘proportionality’ defence is given. Plus, court can order specific performance
requested by consumer to force RP to be performed41 but
this is of court discretion as specific performance can be denied if it is
extremely expensive. Price reduction/damages will be granted on a less serious
nature ie. minor problems where no obvious defect and safety risks if RP is
disproportionately more expensive. Merely extreme cases ie. extreme
cost/inconvenience to trader will bring in the application of specific
performance. Even so, specific performance usually be granted involving physical
injury or significant economic loss even though it is expensive. A rough guide
is used42
in deciding damages given instead of specific performance on minor wrong.

This
is arguably due to policy grounds being considered ie. consumer with weaker
monetary and negotiating status, trouble in being forced to go elsewhere.
However, consumer will feel unjust to bear the trader’s wrong or pay to fix
them on the denial of specific performance. This affect the significance of incentivizing
performance of the quality. Lastly, if consumer do not bother insisting RP,
consumer will ask for appropriate discount or refund within 14 days without deferment
if trader breached s.55(2).43

D)        The matter here is pertaining to the discussion
of the introduction of 2014 new private law rights to sue in solving unfair
commercial practices to be an acceptable improvement, but the rights are minimal
subjected to their restricted nature and complication and whether is there any need
of essential modification to enhance the capability and extent of these private
law rights.

            Traditionally, there are
pre-existing rules subjected to limitations which govern unfair commercial practices.
Firstly, is the common law rule of misrepresentation which is a false statement
usually apply on existing facts, not to future statements that influence
consumer to enter into a contract eg. buying an airline ticket. 44 Spice
Girls v Aprilia45
held merely false statement of facts, not silence excluding apparent
conduct which caused misleading by failing to tell whole story. This only
applicable if contract exists. Plus, there is no right for cutback of price and
merely a claim for damages in limited circumstances.46
Moreover, traditional remedies include duress and undue influence. The former
is a common law where threat consist of an illegal action is needed eg. Refuse
to leave consumer’s house till contract is signed. This seems to appear in
theory but impractical in consumer cases. The latter which is an equitable law
whereby it is necessary to evidence special relationship of ‘trust and
confidence’ is being misused to make an unconscious choice and is not generally
use as of Allcard v Skinner47.
However, this remedy will be applicable if an actual contract exists. No
discount and damages will be awarded for economic losses and distress situation
for both remedy.

            Historically, the Fair Trading Act
1973 is the foremost to place the present regime in chronological perception.48 This
gave control to initiate secondary constitution to safeguard the consumer by
prohibiting unfavorable trade practices.49 Plus, consumer
has no private law rights.50 Moreover,
injunctive directive51
transposed into UK law to shield consumer’s interests before the government has
time to reform the 1973 act.52 Only
then Stop Now Orders (EC Directive) Regulations 2001 (SNORS)53 was
implemented. Office of Fair Trading v Miller54 held
that penalties given were not extreme in breaches of order to protect consumer
against defective goods who responsible for the business. However, this
directive and law focus on EU legislation which results in The Enterprise Act
2002 where CRA 2015 intensify the public law implementation to step in to
substitute it as two different system run separately in UK.55 This focus
on handling both domestic and European Union violations in the law which brought
about the consumer protection’s weapon- administrative enforcement as s.213 in
Part 8 of EA 200256 applied
in Swindon BC v Webb57 whereby required the authorities to
be responsible to retain the consumer prospect under perpetual review.58 Furthermore,
UCPD 200559
brought in new misleading and aggressive practices perceptions.60 Member
states(MS) are required to supervise these operation through public administration.61
However, CPRs 2008 kick in when MS fail to implement the regulation on time.62 This
copied from UCPD and provide a new comprehensive structure when dealing with
unfair commercial practices. Private law rights ie. claim damage or rescind
contract are not required by UCPD to whom impacted by these practices but UCPD
does not prevent MS from giving.63
Nevertheless, it may be mandatory to inaugurate private law right due to
inconsistency of the public and private law is unjust and unclear.64
Additionally, private law will be affected by public law eventually.65 Thus, reform
has been made recently on the previous legislation after Law Commission
considers the issue66 in
which UK chose to use CPRs 201467 to give
private law rights.

            CPRs 2014 added a latest provision
of Reg. 3 to be inserted into the new Part 4A of CPRs 2008 which introduce
consumer redress to remedy the private law in unfair commercial practices.68 These
Acts function inter-operability by incorporating the main concepts which allow private
law right to discount, unwinding and damages to be awarded on prohibited practices.69 This is
different from traditional remedies as greater protection is provided. Moreover,
academic commented regarding misleading and aggressive concepts in UCPD. Furthermore,
CPRs 2014 enhanced protection solely with extra transparent law whereby
traditional remedies did not cover on. In addition, government has their own
interpretation in this area.70 Likewise,
this Act pertains to contractual and non-contractual circumstances when remittance is
done71 and
also on customer’s trade or supply which defined ‘commercial practice’ and
‘trader’72
in a broadly manner.73 Hence,
trader will be accountable on consumer who has the remedies.

            Besides, CPRs 2008 consists of
specific prohibitions. Firstly, will be misleading action as Reg.5. This is
broader than misrepresentation as it provides more protection whereby it covers
false statements of existing facts and to the future.74 Also, this
does not require the existence of contract as long as payment suffices ie.
being misled into paying something by trader. Clearly, this does not fall in
misrepresentation as consumer did not actually been induced into the contract
but merely payment is made. Additionally, there is a prospective implementation
of ‘overall presentation’ in ascertaining misleading actions by considering the
entire process ie. induced into longwinded booking procedure and would be
irrational to withdraw and research it again.75

            Next will be aggressive practices as
Reg.7. This is wider than traditional duress and undue influence as it covers
intimidation and application of physical force.76 This
does not constrain merely to unlawful threats as in duress and there is no
prerequisite of special relationship of reliance and self-assurance as in undue
influence which entails status of power being abused.77 Besides,
this also applied in absence of contract and payment is made. Moreover, this
also cover aggressive sales ie. pressure selling, online behavioral advertising
and forceful implementation where no definite threat and special relationship
is involved.78
Hence, unwinding, damages and discount remedies will be given if misleading or
aggressive practices established.

            New remedies awarded may be better
than previous remedies. Primarily, regards to unwinding remedies as Reg.27E-H.
This is where contract ceases and both parties will be discharged and payment
will be reimbursed if no contract exists.79 This is
comparable to rescission in the traditional remedies but are accessible in a
broader perception as the concepts on Regs are wider than traditional remedies.
Furthermore, protection is enriched in relation to the situation where payment
is offered when no contract is established. A 90 days limit is applied to all
cases and no discount on services.80

Besides,
discount as Reg.27I is obtainable if consumer does not utilize the rewinding
option. This is determined by the relevant percentage through weightiness as to
thresholds of ‘more than trivial’, ‘substantial’, ‘severe’ and ‘very serious’.81 This is
a realistic remedy which does not present in traditional remedies whereby
discount can be provided when consumer choose to retain the goods or services
induced by prohibited practices and if it has exceeded the 90 days limit.82

Lastly,
damages as Reg.27J is given on reasonably foreseeable situation of monetary
loss, fright, grief, physical misery or inconvenience. Now, there is a huge
improvement on protection as damages for aggressive practices only available on
misrepresentation and economic loss ie.expenses is also being covered.
Moreover, this is available for formerly not acknowledged distress and
aggressive practices contrasting undue influence and duress.83 Nevertheless,
the defence to damages claim is on the trader to show he was not at fault for
damages payable.84
No defence is given to discount and unwinding remedy.

            However, there are limitation to the
level of protection on the recent reforms. CPRs 2014 does not cover misleading
omission85
but UCPD and 2008 Regs does whereby consumer which affected by this cannot use
remedies under 2014 Regs.86 Also, silence/failure
to reveal is not a misrepresentation at common law.87
Moreover, there is a prohibitive situation of ‘significant factor’ for
disbursement or agreement. 88 There
is an improvement to existing law, but still inadequate and is unfairly treated
in business when payment not made. However, no right to sue is provided under
2014 Regs if a claim by threat/pressure is surrendered. Additionally, there is
a privity of contract limitation whereby trader can evade liability if he is
unaware of. This may be unfair on situation where trader benefitted from the
merchandise by manufacturer who is unaccountable for their misleading action as
no duty is owed by them.89
Besides, no damages is given if it is faultless90 and
complication results from utilization of the Protection from Harassment Act
1997 to aggressive practice. Automatic remedies for issue in the ‘always
unfair’ list91
is not offered which differ with Purely Creative92
and Office of Fair Trading v Ashbourne93 on instances
where private law remedies will be more applicable if they could be acquired
based on the list.94 Lastly,
a more obstructive explanation of ‘trader’ compare to administrative
enforcement is implemented.

            In conclusion, it is humbly
submitted that the implementation of 2014 helps in dealing unfair commercial
practices in a broader manner by introducing new prohibited practices and
remedies which widen the scope of private law rights for consumer’s benefit.
However, protection is not fully enhanced as 2014 Regs is still flawed due to
the restrictions.