Commercial law coursework assignment help
Answer each question separately (i.e. not as one continuous essay) You are reminded that you will be assessed on your ability to organize and present information and arguments logically and coherently, and to communicate clearly and accurately, taking into account grammar, punctuation and spelling.
Word limit: 2500 words including cases
recommended textbook is ATIYAH'S SALE OF GOODS, TWELFTH EDITION
GUIDANCE FOR STUDENTS
Read the scenario below and then answer each of the questions that follow. Your objective should be to demonstrate a sound understanding of the principles of contract/commercial law that apply to the situations that follow, AND, where appropriate, highlight the difference between the common law position, and the position that would prevail if the parties had adopted the standard form contract below to the outcome of any dispute.
Refer to the Sale of Goods Act 1979 (as amended) and the standard form contract. See below for the standard form contract
Evans Furniture Ltd. [Evans] manufactures office furniture, which they sell to a number of retail outlets. They decide to end production of one particular type of desk and to "clear out" the 120 desks which remain in stock. On 1st. December, the Sales Manager sent a copy of a letter to each the company's four major retail customers: It stated...
"Please be advised that we are ending production of the above model. We have one hundred and twenty desks remaining in stock and in order to clear this line we are prepared to offer them at the reduced price of £570 per desk."
This was a particularly attractive offer as the usual trade price for each desk was £750 and the recommended retail price was £895. Westway Office Equipment [Westway] replied on the 4th December as follows:
"Thank you for your letter of the 1st February. We would be pleased to take 60 desks at the price mentioned by you, on the assumption that you will be responsible for delivery as per our usual arrangement."
This letter was posted the following day (5th. Dec) and on that day Westway telephoned Evans to advise that they had accepted the offer. That day the Sales Manager instructed the warehouse staff to move 60 desks into a loading bay pending delivery to Westway Office Equipment.
The next day (6th.Dec.), the senior buyer of one of the other retail shops (Higgins Office Store) called at the premises of Evans Furniture Ltd, and offered to buy all one hundred and twenty desks for £60,000. The Managing Director of Evans Furniture immediately accepted this offer, unaware of the telephone conversation with Westway.
That night a fire in the loading bay destroyed the 60 desks that were stored there. The remaining 60 desks, which were in the warehouse and were untouched by the fire, were delivered to Higgins Office Stores the following day (7th Dec).
ANSWER ALL QUESTIONS:
WITH REFERENCE TO THE STANDARD FORM CONTRACT...
1. Explain the legal issue that clause 2 of the standard form contract is addressing and what it is aiming to achieve. Do you think it would be effective? [5 marks]
2. Explain the legal issue that clause 9 of the standard form contract is addressing and what it is aiming to achieve. Do you think it would be effective? [20 marks]
WITH REFERENCE TO THE EVANS FURNITURE SCENARIO...
3. Has a contract for sale of goods been formed between Evans Furniture and Westway Office Equipment? If so, comment on when title to the goods passed. [10 marks]
4. Describe the legal significance, if any, of the fact that the 60 desks ordered by Westway were sent to the loading bay before the fire occurred [10 marks]
5. Explain the legal principles that determine who would bear the loss if all the desks had been destroyed in a fire at the warehouse on the night of 6th / 7th.Feb [Ignore any aspects of Insurance]. [15 marks]
6. Higgins Office Store may have possession of 60 desks, but do they have title to them? Explain the legal basis for your conclusion. [10 marks]
7. Higgins Office Stores advise Evans Furniture that of the 60 desks received - 4 have handles which are loose or missing. They wish to use this as an opportunity to repudiate the contract as they no longer want to trade in these desks. What is the legal basis for such a claim and would it be likely to succeed? [15 marks]
8. Westway Office Equipment had arranged a sub-sale of the 60 desks which they had expected to receive. The sub-sale was at a price of £900 per desk. Comment on the principles that will apply in calculating any damages claim that they may wish to file. [15 marks]
STANDARD FORM CONTRACT
THIS AGREEMENT is made the ............day of ........2011
(Referred to in this agreement as "the seller") and
(Referred to in this agreement as "the buyer")
WHEREBY IT IS AGREED that the seller shall sell and the buyer shall purchase the goods described in condi¬tion 2 in accordance with the terms of this contract
1. No amendments or modifications to these conditions and, in particular, no terms or conditions of pur¬chase of the buyer shall form part of the contract or be binding upon the seller unless expressly agreed to in writing and signed by the seller.
2. (a) Description of goods:
(b) The description of the goods in condition 2(a) above is believed to be correct as to weights, dimensions, capacity, composition, performance and otherwise. Any error, omission or mis-statement therein shall not annul the sale nor entitle the buyer to be discharged from the contract or to claim any compensation in consequence thereof. Provided that nothing in this condition shall oblige the buyer to accept any goods which differ substantially in any of the above- mentioned respects from the goods agreed to be sold. In that event the buyer shall be entitled to rescind the contract and to claim repayment of the price, but the seller shall incur no further liability in respect thereof.
3. (a) In addition to the price of the goods, the buyer shall pay
(i) Vat or other taxes payable in respect of the goods;
(ii) the cost of insurance under condition 8; and
(iii) the cost of delivery under condition 4.
(b) The price of the goods is: ....... £
add V.A.T: £
total amount due £
(c) Where the date of delivery specified in condition 4 is more than six months from the date of this agree¬ment, the seller reserves the right to increase the price of the goods in proportion to any increase in costs to the seller of materials labour and other inputs between the date of this contract and the date of delivery.
(d) The buyer will pay the price of the goods and any other sums due to the seller under this contract within 30 days of the date of delivery. In the event of a failure to make payment by the due date interest at the rate of 10 % per annum shall be payable on any sums outstanding.
4. (a) The delivery date is.................
This date is given as way of an estimate only and the seller shall not be liable for failure to deliver on time.
(b) Unless the seller is notified otherwise in writing at least seven days before the delivery date, the seller shall deliver the goods to the buyer's place of business. The cost of transportation and insurance up to the time of actual delivery will be paid by the buyer in accordance with condition 3.
(c) The seller shall be entitled at its sole discretion to make partial deliveries or deliveries by instalments.
(d) Deviations in quantity of the goods delivered (representing no more then 10% by value) from that stated in condition 2 shall not give the buyer any right to reject the goods or to claim damages. The buyer shall be obliged to accept and pay at the contract rate for the quantity of goods delivered.
5. (a) The seller reserves the right to modify the specification or design of the goods in whole or in part without prior notification to the buyer. The buyer shall accept such modified goods in performance of the contract.
(b) The buyer shall be deemed to have accepted the goods unless within 14 days of delivery written notice is received by the seller to the contrary.
6. (a) The property in the goods shall remain with the seller until the seller has received payment in full for the goods and all other sums owing to the seller on whatever grounds.
(b) If the buyer sells the goods prior to making payment in full for them, the rights of the seller under this condition shall attach to the proceeds of sale or to the claim for such proceeds. The buyer shall, if required to do so by the seller, formally assign any such rights.
(c) For so long as the property in goods remains with the seller, the buyer shall store the goods separately so that they may readily be identified as the property of the seller. The seller shall during this time have the right to retake possession of the goods. For this purpose the buyer hereby irrevocably authorises the seller of his agents to enter upon any premises occupied by the buyer.
(d) The seller may maintain an action for the price notwithstanding that property in the goods may not have passed to the buyer.
7. The goods shall be at risk of the buyer in all respects from the date of this contract or, if later, the date of manufacture by the seller.
8. Unless the buyer notifies the seller in writing to the contrary, the seller shall at the expense of the buyer in¬sure the goods to the full replacement value thereof until the time of delivery.
9. (a) In the event that the goods supplied to the buyer fail to comply with the terms of this contract, or prove to be defective, the liability of the seller is limited to the replacement of the goods or, at the seller's option, the refund of all payments made by the buyer in respect of the goods.
(b) Except as otherwise provided in condition 9(a), the seller shall be under no liability of whatsoever kind whether or not due to the negligence or wilful default of the seller or its servants or agents arising out of or in connection with any breach of the seller's obligations under this contract. All conditions, warranties or other terms, express or implied, statutory or otherwise, are hereby expressly excluded.
(c) Nothing in this condition shall exclude or restrict any liability of the seller for death or personal injury re¬sulting from the negligence of the seller or its servants or agents.
(d) If it should be held in relation to any claim that the preceding provisions of this paragraph are ineffec¬tive, the buyer shall not be entitled to reject the goods and any damages recovered by the buyer shall be limited to the reasonable cost of remedying the breach of contract provided that the seller shall first be af¬forded the opportunity of itself carrying out such remedial work.
(e) Nothing in this condition or in conditions 2(b) or 4(d) shall exclude or restrict any liability of the seller for breach of its implied undertakings as to title; and, where the buyer deals as a consumer, any liability of the seller for breach of its implied undertakings as to description, quality, fitness for purpose, or correspon¬dence with sample.
(f) In the case of transactions covered by paragraphs (4) and (5) of the Consumer Transactions (Restric¬tions on Statements) Order 1976 the provisions of this contract shall not affect the statutory rights of the consumer.
10. The seller shall not be liable for non-performance in whole or in part of its obligations under this contract due to causes beyond the control either of the seller or of the seller's suppliers including any Act of God, fire, flood, tempest, act of state, war, civil commotion, embargo, accident, plant breakdown, hindrance in or prevention from obtaining any raw materials or other supplies, interference by labour disputes, inability to obtain adequate labour, manufacturing facilities or energy, or any other like cause. If any such event con¬tinues for a period of more than 6 weeks, the seller may cancel this contract or vary condition 4(a) hereof by notice in writing to the buyer without liability on the part of the seller.
11 (a) The seller shall have the right to terminate this contract by notice in writing in the event of the buyer's insolvency and the buyer shall indemnify the seller against all losses and damage suffered by reason of such termination.
(b) Termination of the contract under this condition shall not affect the accrued rights of the parties arising in any way out of the contract as at the date of termination.
(c) In the event of termination under this condition the seller shall have the right to enter any business prem¬ises occupied by the buyer and recover any goods which are the seller's property.
12. In the event of cancellation of this contract by the buyer for whatever reason, the buyer agrees to pay 20% of the purchase price to the seller by way of liquidated damages.
13. The benefit of this contract shall not be assigned or transferred by the buyer without the prior written con¬sent of the seller. The seller shall have the right to assign to any of its associated companies all of the rights, powers, duties and obligations under this contract without the consent of the buyer. In the event of any such assignment by the seller references in this contract to the seller shall be deemed to be references to any company taking under the assignment.
14. If any difference shall arise between the seller and the buyer upon the meaning of any part of this contract or the rights and liabilities of the parties hereto, the same shall be referred the arbitration of two persons (one named by each party) or their umpire in accordance with the provisions of the Arbitration Act 1950 or any amending or substituted legislation for the time being in force.
SIGNED for and on behalf of the SELLER:
SIGNED for and on behalf of the BUYER