Essay: Issues of consumer law

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  • Subject area(s): Law essays
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  • Published on: July 15, 2019
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Removals firm:

Supply of Services

The legal relationship between the parties must be clear. The Consumer Rights Act 2015 (CRA) defines a consumer as “an individual acting for the purposes that are wholly or mainly outside that individual’s trade, business, craft or profession”. As evident by the facts, there is a construction of a contract for supply of services between Sandeep as the consumer, and the Tiptoe Movers as the traders for the purpose of the CRA 2015.

Quality of service under statutory law

A supply of service must be of satisfactory quality under the CRA 2015 whereby standards of service performed by Tiptoe Movers must therefore legally satisfy. Section 49 of the CRA 2015 determines that the standard of services performed must conform to reasonable care and skill. The service performed must be completed in accordance to the information agreed upon with the consumer whereby the consumer relies on this information. Although strict liability can occur regarding price and time for a service, reasonable care and skill required cannot be excluded under the CRA 2015 and other limitations may be subject to a fairness-test. Such test may consider the extent to which then specific terms appear ‘transparent and prominent’. Since the CRA 2015 does not intend to challenge prices of a contract, “a fixed sum of no more than the total contract price” may appear relative but not necessarily unfair. Sandeep and Daniel will argue that the mentioned duty of care has not been followed through by the Tiptoe Movers nor did the task performed follow the instructions of the service, if assuming exchange of information took place pre-contract (Sandeep’s telephone conversation), or as stated in the contract. The lack of reasonable care and skill is supported by the fact that the Tiptoe Movers arrived hours later then agreed on and the service was also not fully complete by the fact of not placing all the belongings where it was decided.

Validity of exemption clause

The purpose of exemption clauses in contract is to remove any liability in case of breach of the contract or to limit damages available to claim. The location of the clause is important since a consumer shall have knowledge of the clause, thus reasonable steps may need to be taken to make aware of the clause. In certain cases, excluding liability may require a greater degree of notice to be given. In order for the Tiptoe Movers to use the exemption clause as a defence (partial at least), it must be incorporated in the contract, express what it covers and not be contrary to any law. In Sandeep’s case, it is provided in the scenario that Sandeep did sign a contract where the clause was located but was not aware of the clause. The incorporation of an exemption clause did take effect because of signing it, unless it was induced as way of misrepresentation. Regardless of whether Sandeep read it or not the clause was present at the time, thus discoverable. The main issue is to consider whether this exemption clause covers the situation that occurred.

Fairness Test

The test for fairness is originally under the Unfair Contract Terms Act 1977, but also implied in the current CRA 2015. The test denotes that term in a contract may deem as unfair if causing unfair barging between the parties. The time when the term was agreed on must be taken into account, as well as any other terms the contract depends on and purpose of the contract. In response to this, one of the facts to consider is that Sandeep may not have equal bargaining power to the Tiptoe Movers. At common law, the exception clause must be clear but Sandeep did not know about it, so was it obvious enough? The exemption clause intends to exclude ‘loss, howsoever arising’ that may not be found appropriate to the task of moving others’ belongings. Whilst the exemption clause does not specifically mention negligence, it may amount to an attempt to unreasonably exclude liability. The clause is not entirely withdrawn from responsibility since it does express a recovery price based on the cost of the contract. If one does have valuable possessions, it would depend on the consumer to increase the amount in case of practical concerns.

Duty of care (negligence)

In some circumstances, causing the failure to satisfy the standards of quality or fitness, exemption clauses of liability are not admissible. The type of injury to the belongings should be examined under negligence under section 65(4) and 63 of CRA 2015 weather the term would satisfy the test of reasonableness. At common law, the general test requires reply to as whether the injury in question was ‘reasonably foreseeable’; was sufficient proximity between parties and it would be ‘fair, just and reasonable’ to enforce liability on the responding party. A qualified duty of reasonable care maintains when having possession of one’s property for some purpose. In Sandeep’s and Daniel’s case, the belongings appear destroyed as a result of the Tiptoe Movers’s failure to exercise the required reasonable care as the firm was in a rush and was dropping boxes.

Damages

The award of damages is to put the claimants into the position they ‘would have been in had the contract been performed’. If the clause considers not unreasonable and unfair, then Sandeep and Daniel can go as far as bring a claim for negligence against the Tiptoe Movers. However, the ‘reasonableness test’ in case of negligence is determined by also the objective test in court.

Bookshelves

Supply of services

There is construction of a consumer contract between Sandeep and Martin as evident by the payment in exchange to install bookshelves. Duty of care arises concerning the bookshelves to be properly installed by Martin. Alternatively, product liability for the manufacture or place of purchase should also be examined.

Quality of service under statutory law

Section 49 of the CRA 2015 requires a service performed to satisfy the standard of reasonable care and skill. Similar requirements as for goods will apply. Instructions or information about the instalment of the bookshelves ought to have been agreed upon prior to the contract and the information conveyed must on be relied on. However, due insufficient facts about the parties’ contractual terms, certainty concerning quality of service will be approached as relative.

Duty of care (negligence)

The bookshelves fall on Daniel and causing personal injury to him raises a question of negligence. The reasonableness test may be reviewed as above. One issue to reconsider within the test is whether Sandeep and Martin have equal bargaining power on the matter at hand. Here, Sandeep gives Martin direction on how the bookshelves are to be placed, to which Martin does not object.There is evidence of sufficient proximity between the parties but regarding an injury to be reasonably foreseeable is uncertain though Martin is a carpenter, from whom one may expect to rely on for his expertise and knowledge for what is appropriate for the task.

Product liability

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