Question one
Some legal issues arise in the case scenarios involving Mark and the seller of the minibus. They revolve around the law of contract. In the first instance, when Mark sees an advert on TV for the sale of a new minibus, the following legal issues ought to be determined:
1. Are all elements of a valid contract present?
2. Is the engagement between Mark and the seller of the minibus amounttoo an enforceable contractual relationship?
Are all elements of a valid contract present?
Regarding the first issue, there are well-cemented rules governing the formation of a valid and binding contract that is enforceable in a court of law. Creation of a valid contract begins with the offer. As held in Stover v Manchester City Council [1974] 1 WLR 1403, an offer is an expression containing terms by one person to another. It is intended to become binding once the person to whom the offer is expressed has accepted. An Offer can be addressed to a single person, a particular group of persons, or to the whole world (Charman, 2013).
Acceptance is another element of a valid contract. An offer must be accepted by the offeree (the person receiving the offer), and acceptance must be communicated to the offeror( the person making the offer (Gillies,2004). In the present case scenario, no communication of acceptance of an offer is made.
The third element is the consideration. In The Alliance Bank (Limited) v Broom (1864) 62 E.R. 631, the court held that consideration is a form of ‘forbearance’ by parties in a contract to make a promise enforceable.
The fourth element is the intention to be bound. The law makes a rebuttable presumption that when parties enter into a commercial agreement, there is an intention to be bound. This presumption can be rebutted with evidence, as was held in Esso Petroleum v Commissioners of Customs & Excise 1976 1 WLR 1.
Does the engagement between Mark and the seller of the minibus amount to an enforceable contractual relationship?
In this particular instance, the seller makes an invitation to treat as opposed to an offer. The prima facie rule is that advertisements amount to an invitation to treat as opposed to an offer. This was observed in Partridge v Crittenden [1968] 1 WLR 1204, where the defendant survived prosecution under the Protection of Birds Act 1985 following his advertisement that concerned the sale of wild birds. The court held that he could not be prosecuted since his action didn’t amount to an ‘offer’ to sell the birds. It was a mere invitation to treat,t inviting members of the public to make offers.
Seeing the above inclination by the court, the seller of the minibus made an invitation to treat which induced Mark to make an offer. However, Mark’s offer was not accepted by the seller since there was no further correspondence from the seller. The rule of thumb is that acceptance of the offer must be communicated by the offeree to the offeror.
Communication of acceptance must be made as was the position in Powell v Lee (1908) 99 LT 284. Silence cannot amount to acceptance. This was established in Felthouse v Bindley (1862) EWHC CP J 35. There is an exception to the communication of the acceptance rule. In unilateral contracts, acceptance is by performing a specified act. Thus, communication is not necessary. Performance of the act makes the contract binding, and communication is rendered unnecessary. This was held in Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256.
Based on the above, there is no valid contract between Mark and the seller of the minibus,s as the advertisement was an invitation to treat. Mark made an offer to the seller of the minibus, but there was no acceptance. The seller did not communicate acceptance of the offer by Mark.
If the advertisement stated that the first person to take a selfie of themselves at the end of Brighton pier would be entitled to claim the minibus, the contract would be valid. Such a contract would be a unilateral contract whereby the offer is made to the whole world, requiring the person accepting to perform an act. In this case, they're taking a selfie of themselves at the end of Brighton pier.’ The rule in Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256 would apply.
Question two
The issues for determination in the transaction Amaka is involved in are:
1. Whether the transaction Amaka is involved in is contractual in nature, hence entitling him to remedies?
2. Is he protected by the law?
3. Why, if any, do they arise?
4. Whether he is entitled to remedies
Whether the transaction Amaka is involved in is contractual in nature, entitling him to remedies?
Amaka is involved in a contract for the sale of goods. It is required that a contract for the saleof goodsd manifests all the elements of a valid contract,ct which are the offer, acceptance, consideration, intention, capacity, and legality.
Is he protected by the law?
Assuming all the above elements were met, Amaka is in a contractual relationship protected by law. He is in a contract for the sale of goods. The protection is founded on the Consumer Rights Act 2015, which came into force on 1st October 201, replacing the Sale of Goods Act 1979. The Consumer Rights Act. The Consumer Rights Act has brought several changes toconsumers’s rights. Some of the changes are the right to return faulty goods, claim a refund, and ask for replacement or repair.
One may, however, claim protection under the Sale of Goods Act if the sale occurred on or before 30th October 2015. Thus, Amaka will be protected under either of the Acts depending on the date of the sale.
Why is protection necessary?
The law comes to protect consumers from unscrupulous business persons who may take advantage of innocent consumers by selling them substandard goods. Under section 14 of the Sale of Goods Act 1979, the Act imposes implied terms that must be met. Goods must be as described, satisfactory in quality, and fit for purpose. The goods must be able to meet the day-to-day use and purpose, and a specific purpose,e as agreed with the seller. The Sale of Goods Act also requires the same. There is, however, an exception to this requirement. When a disclosure of a defect is made at the time of sale, and the buyer agrees to buy in full knowledge of that defect, the seller will not be liable for the defectIssr he entitled to remedies?
Amaka is entitled to remedies since the seller is in breach of the implied conditions and warranties provided by law. The TV was defective, rendering it incapable of meeting the purpose for which it was bought. The TV fails to meet the requirements of ‘satisfactory quality’ and ‘fit for purpose’ as provided by the law. Some of the remedies available to Amaka are suing for damages, asking for a refund, or demanding an exchange or repair from the seller.
References
Acts of parliaments
Sale of Goods Act 1979
Consumer Rights Act 2015
Case law
Stover v Manchester City Council [1974] 1 WLR 1403
Alliance Bank (Limited) v Broom (1864) 62 E.R. 631
Esso Petroleum v Commissioners of Customs & Excise 1976 1 WLR 1.
Partridge v Crittenden [1968] 1 WLR 1204
Powell v Lee (1908) 99 LT 284.
Felthouse v Bindley (1862) EWHC CP J 35
Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256.
Books
Charman, M. (2013). Contract Law. Abingdon: Routledge, p.7.
Gillies, P. (2004). Business law. Sydney, Federation Press,p.152.
