COMMERCIAL LAW

Commercial Law



Commercial Law

Introduction

Referring to the scenario Needfulthings LTD have cautioned their customers to refrain from over loading. However, Kylie should know that the Consumer Protection Act 1987 provides strict liability (i.e. there is no need to prove negligence) against manufacturers for individual injury caused by a defective product. Hiowever, the definition of product can extend to instructions or packaging, but a book would probably not be considered a product.

Background

The impairment has to be initiated by the merchandise, and this is improbable to apply. In order to determine whether a contract term satisfied the statutory requirement of reasonableness, it was first necessary to determine the scope and effect of that term as a matter of construction and in particular to identify the nature of the liability which the term was seeking to exclude or restrict. The relevant contractual clause although stuck on to the filing cabinet does not fully suffice the requirement. The sales person should have independently also warned Kylie not to overload the cabinet as it can fall and cause damage.The excluded liability for indirect or consequential loss whether arising from negligence or otherwise and the second limited the defendant's total liability under the contract. Each part was intended to have its own separate and distinct purpose and, in so far as the judge treated the clause as being of a unitary nature following the defendant's concession on this point, he was wrong to do so. The fact that the clause was in two parts was essential to a determination whether or not the relevant contractual term, namely the contract term which was relevant to the liability which the defendant sought to exclude, satisfied the requirement of reasonableness.

In the case of any defect in the quality of the equipment or in its failure to perform in accordance with the specification, the second part of the exclusion of liability clause sought to limit liability for breach of warranty to the price of the equipment or software connected with the claim and was an attempt, in the context of section 53(3) of the Sale of Goods Act 1979 to peg the value which the goods would have had if the warranty had been fulfilled to the price paid by the buyer. The purpose of the first part of the exclusion of liability clauses was at the least to exclude contractual claims for indirect and consequential losses, i.e. to exclude liability in contract for losses which could be recovered only under the second limb of Hadley v. Baxendale. The clause was not intended to exclude claims in respect of pre-contractual misrepresentations. The purpose of the first part of the exclusion clause had to be ascertained not only in the light of the second part of that clause but also in the light of the "entire agreement" clause.

The effect of an acknowledgment of non-reliance was that it was capable of operating as an evidential estoppel to prevent the party who had given the acknowledgment from asserting in subsequent ...